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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2007, vol. 9, no. 2

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2006)), the Attorney General is authorized, upon request, to furnish written legal opinions to State officers and State’s Attorneys on matters relating to their official duties. The following is a summary of informal opinions I-07-026 through I-07-050 that may be of interest to the government bar. 

Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General’s Springfield office at (217) 782-9070. Copies of official opinions may also be found on the internet at http://www.illinoisattorneygeneral.gov/opinions/index.html

 

Informal Opinion No. I-07-026

Issued May 17, 2007

Requiring Plat Act Affidavit for the Recording of Deeds

A county recorder cannot, as a matter of routine practice, require that a Plat Act affidavit be provided with every deed presented for recording, including those to which, on their face, the Plat Act does not apply. The affidavit can be required only where doubt as to Plat Act compliance is based upon the content of the document. A county board is without authority to alter the recorder’s duty to file documents by requiring an affidavit as a prerequisite to filing. In those instances when such an affidavit may be required, the affidavit may be filed with the instrument to which if refers, and fees may be charged accordingly. 55 ILCS 5/3-5018 (West 2005 Supp.); 765 ILCS 205/5a (West 2004).

 

Informal Opinion No. I-07-027

Issued May 24, 2007

Admissibility of Recorded Law Enforcement Interviews Stored in the Digital Versatile Disc (DVD) Format

Assuming the proper foundation, interviews stored in the DVD format may be admissible as evidence in criminal proceedings to the same extent as the more commonly encountered video home system (VHS) format. 705 ILCS 405/5-401.5 (West 2006); 720 ILCS 5/14-2 (West 2006); 720 ILCS 5/14-3 (West 2006); 725 ILCS 5/103-2.1 (West 2006); 725 ILCS 5/108A (West 2006).

 

Informal Opinion No. I-07-028

Issued May 24, 2007

Formation and Participation in Multi-Jurisdictional Drug Task Force

(1) The general statutory authority conferred on municipalities and counties is sufficient to authorize the creation of a multi-jurisdictional drug task force by intergovernmental agreement. (2) An intergovernmental agreement between a county and municipalities must be approved by the county board and the corporate authorities of each municipality. (3) The extra-territorial authority of peace officers participating in a multi-jurisdictional drug task force is generally limited to the statutory exceptions to the common law rule that police officers have no authority to arrest a defendant outside their jurisdiction. A county sheriff, however, may appoint members of a drug task force to serve as his or her deputies providing them with peace officer authority within the geographic boundaries of the county. (4) The peace officer status of probation officers is limited to the context of their statutory duties which do not authorize a probation officer to perform the general peace officer activities likely to be necessary for full participation in a multi-jurisdictional drug task force. (5) A probation officer may not share probation records with drug task force members without a court order authorizing such disclosure. 5 ILCS 220/2, 3, 5 (West 2006); 30 ILCS 715/1 et seq. (West 2006); 55 ILCS 5/3-6008, 3-6021 (West 2006); 65 ILCS 5/7-4-7, 7-4-8, 11-1-2.1 (West 2006); 725 ILCS 5/107-3 (West 2006); 725 ILCS 5/107-4 (West 2006); 730 ILCS 110/12(4) (West 2006); 730 ILCS 110/15(12) (West 2006); Ill. Const. 1970, art. VII, §10. 

 

Informal Opinion No. I-07-029

Issued May 24, 2007

Applicability of Lobbyist Registration Act to Members of the Illinois Laboratory Advisory Committee 

Illinois Laboratory Advisory Committee members do not, solely by their membership on the Committee, undertake to influence executive, legislative, or administrative action within the purview of the Lobbyist Registration Act and the administrative rules promulgated thereunder. 20 ILCS 3981/1 et seq. (West 2006); 25 ILCS 170/3, 4 (West 2006); 2 Ill. Adm. Code §§560.200, 560.210 (Conway Greene CD-ROM June 2003).

 

Informal Opinion No. I-07-030

Issued May 24, 2007

Applicability of the State Officers and Employees Money Disposition Act to the Illinois State Board of Investment

The State Board of Investment (Board) is an entity in the executive branch of State government. The Board’s duties are not judicial or legislative in nature; rather, the Board’s duties are administrative involving the execution of State law. The Board is not included among the various exceptions contained within the State Officers and Employees Money Disposition Act (the Act). Consequently, the Board constitutes a “board[ ] * * * of the Executive Department of the State government” for purposes of the Act. As such, it is subject to the provisions of the Act. 20 ILCS 230/1, 2c (West 2006).

 

Informal Opinion No. I-07-031

Issued May 25, 2007

Executive Ethics Commissioners – Holding Over in Office

Under the common law, a public official ordinarily holds over in office until a successor is selected and qualified, regardless of whether the General Assembly has expressly so provided. Consequently, if no reappointment or succeeding appointment is made prior to the expiration of the terms of office, the commissioners of the Executive Ethics Commission will continue to serve as de facto commissioners. 5 ILCS 430/20-5 (West 2006).

Informal Opinion No. I-07-032

Issued May 31, 2007

County Engineer’s Authority Over Roads Not Within County Unit Road District System
Roads located within a county unit road district that are: (1) not under the exclusive jurisdiction of a State entity other than IDOT or a municipal corporation other than a city, village, or incorporated town; (2) laid out pursuant to statute, established by dedication, or established by prescription; and (3) part of the county unit road district system are subject to the Highway Code and therefore under the jurisdiction of the county unit road district until they are vacated pursuant to statute or abandoned. The county engineer has jurisdiction over such roads until they are vacated pursuant to section 6-303 of the Highway Code or abandoned. 605 ILCS 5/2-202 (West 2006); 605 ILCS 5/6-125 (West 2006); 605 ILCS 5/6-303 (West 2006). 

 

Informal Opinion No. I-07-033

Issued June 15, 2007

County Board Authority Over County Engineer

The county board maintains supervisory authority over the county engineer. The county board may require the county engineer to seek specific approval to use county highway budgetary funds and also may designate the highway projects to be undertaken and control the development of these projects. The county board must permit the county engineer to use his or her expertise and discretion in fulfilling the position’s statutorily-mandated duties. 605 ILCS 5/5-202, 5-205 (West 2006).

 

Informal Opinion No. I-07-034

Issued June 15, 2007

Circuit Court Clerk’s Liability for Deputy Clerk’s Failure to Present Draft Orders to a Judge

The powers of a deputy clerk are derivative of his or her principal, the circuit clerk. Circuit clerks may only be held liable for the failure to perform a duty imposed by statute, the Illinois Supreme Court, or local rule. No statute or Supreme Court rule authorizes circuit clerks to submit draft orders to judges. It is thus within the purview of each circuit court to adopt local rules or orders imposing such a duty. In the absence of such rule or order, circuit clerks cannot be held liable for their deputy clerks’ failure to present draft orders to a judge. 705 ILCS 105/13 (West 2006).

 

Informal Opinion No. I-07-035

Issued June 15, 2007

Remittance of Money under the Clerks of Courts Act for the Illinois Animal Abuse Fund

Subsections 27.5(b) and 27.6(d) of the Clerks of Courts Act require that a percentage of amounts collected by the clerk of the court for certain violations of the Humane Care for Animals Act be deposited in the Illinois Animal Abuse Fund. However, counties with populations of less than 2,000,000 may, by ordinance, opt out of the application of sections 27.5 and 27.6, thereby exempting them from remitting monies to the State Treasurer for deposit into the Fund. 705 ILCS 105/27.5(b), 27.6(d) (West 2006).

 

Informal Opinion No. I-07-036

Issued June 21, 2007

Discussion of Performance and Compensation of Community College President in Closed Meeting

A community college board’s prior practice of considering the performance and compensation of the president in closed meetings is permitted under subsection 2(c)(1) of the Open Meetings Act (OMA), provided that all final action was taken in an open meeting and was preceded by a public recital of information that was sufficient to inform the public of the nature of the matters being considered. A proposed procedure for adopting the president’s employment contract and any amendments thereto in open meetings generally appears to comply with the OMA’s requirement that final action be taken in open meetings. 5 ILCS 120/2 (West 2006).

 

Informal Opinion No. I-07-037

Issued June 21, 2007

Nursing Home Care Act and Health Care Arbitration Agreements

Any waiver of a right to sue contained in a health care arbitration agreement between a nursing home and a resident thereof is void with respect to any action which the resident might bring pursuant to the Nursing Home Care Act. Such an agreement may be valid, however, as to causes of action which may arise from sources other than the Nursing Home Care Act. 210 ILCS 45/3-606 (West 2006); 710 ILCS 15/2 (West 2006). 

 

Informal Opinion No. I-07-038

Issued June 21, 2007

Collection of Judgments for Fines, Fees, and Costs of Prosecution

Pursuant to the Code of Civil Procedure, subject to certain exceptions, judgments must be enforced within seven years after they are rendered, unless they are revived. Petitions for revival must be filed between seven and 20 years after a judgment is rendered. These civil procedural time limitations apply to the collection of fines, cost assessments, fees, and restitution in criminal and traffic cases, except that orders of restitution are tolled during periods of incarceration. A partial payment of a sum due and owing under a judgment does not automatically revive the judgment. There is no statutory mechanism by which courts can declare judgments in criminal cases to be uncollectible. 725 ILCS 5/12-108 (West 2006); 725 ILCS 5/124A-10 (West 2006); 730 ILCS 5/5-5-6 (West 2006); 735 ILCS 5/2-1602 (West 2006); 735 ILCS 5/12-101 (West 2006).

 

Informal Opinion No. I-07-039

Issued June 28, 2007

Applicability of Property Tax Extension Limitation Law to Multi-Township Assessment Districts

Multi-township assessment districts are “special districts” pursuant to article VII, section 1, of the Illinois Constitution of 1970 and, as such, are considered “units of local government.” Accordingly, multi-township assessment districts constitute “taxing districts” for purposes of the Property Tax Extension Limitation Law (PTELL) and, thus, are subject to PTELL’s provisions. Further, both newly organized and reorganized multi-township assessment districts are exempted by section 18-215 of PTELL from compliance with the referendum requirements for establishing the district’s tax rate otherwise imposed by section 18-190 of PTELL. 35 ILCS 200/1-150, 2-20, 18-185, 18-190, 18-195, 18-210, 18-215 (West 2006); 60 ILCS 1/80-55 (West 2006); Ill. Const. 1970, art. VII, §1.

 

Informal Opinion No. I-07-040

Issued July 12, 2007

Applicability of the Property Tax Extension Limitation Law to the Local Governmental and Governmental Employees Tort Immunity Levy

Tax levies authorized by section 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act are subject to the limitations and referendum requirements of the Property Tax Extension Limitation Law. 35 ILCS 200/18-210 (West 2006); 745 ILCS 10/9-107 (West 2006).

 

Informal Opinion No. I-07-041

Issued August 2, 2007

County Board’s Authority to Limit Sheriff’s Use of Credit Card

The sheriff’s internal control over the operations of the sheriff’s office precludes the county board from prohibiting the sheriff’s use of a county credit card to incur expenses necessary for the operation of the office, if the expenses are within amounts appropriated for the sheriff’s office. 55 ILCS 5/3-6018 (West 2006).

 

Informal Opinion No. I-07-042

Issued August 2, 2007

Applicability of a County Ethics Ordinance to Circuit Clerks, State’s Attorneys, and Their Employees

The State Officials and Employees Ethics Act (the Ethics Act) does not apply to circuit clerks, State’s Attorneys, or their employees. The Ethics Act requires counties to adopt an ordinance to regulate the conduct of their officers and employees. Because circuit clerks, State’s Attorneys, and their employees are not county officers or employees, those officers and their employees are not subject to the county ethics ordinances adopted pursuant to section 70-5 of the Ethics Act. State’s Attorneys and their assistants, as licensed attorneys, are obligated to comply with the extensive ethical mandates found in the Illinois Rules of Professional Conduct, and State’s Attorneys are authorized to establish ethical standards for their employees. Additionally, the Illinois Supreme Court may adopt statewide rules governing the ethical conduct of the circuit clerks’ offices, and the chief judge may impose requirements for the ethical conduct of the circuit clerk and the circuit clerk’s employees. 5 ILCS 430/70-5 (West 2006).

 

Informal Opinion No. I-07-043

Issued August 2, 2007

Use of Public Facilities for Political Activities under the State Officers and Employees Ethics Act

The Model Ethics Ordinance, drafted by the Office of the Attorney General pursuant to the requirements of the State Officers and Employees Ethics Act, prohibits officers and employees of governmental entities from participating in prohibited political activities. Assuming that a governmental entity has the authority to permit its property to be used for political functions and applies content neutral policies that do not favor one candidate or political organization over another, the Ordinance does not prohibit a public officer or employee from merely facilitating the use of such public property for a political function. 5 ILCS 430/1-5, 20-5, 70-5 (West 2006).

 

Informal Opinion No. I-07-044

Issued August 9, 2007

Municipal Civil Service Commission Consideration of Training Time in Calculating Requisite Active Military Service for Veterans’ Preference

In municipalities that have adopted civil service under article 10, division 1, of the Illinois Municipal Code (the Municipal Code), a person must have, among other things, engaged in active military or naval service of the United States for at least one year in order to receive the veterans’ preferences points provided in section 10-1-16 of the Municipal Code. Because the Federal definition of “active duty” includes: full-time training duty; annual training duty; and attendance at a properly designated service school while in the active military service, a civil service commission should consider the time an applicant for a civil service position spent in training that constitutes Federal active duty training within the provisions of 10 U.S.C. §101(22), when determining whether the applicant has engaged in the requisite amount of active military or naval service of the United States to qualify for veterans’ preference points under section 10-1-16 of the Municipal Code. 65 ILCS 5/10-1-16 (West 2006). 

 

Informal Opinion No. I-07-045

Issued August 20, 2007

Political Affiliation of Members of Board of Review

The office of regional superintendent of schools is not a county office for purposes of section 6-15 of the Property Tax Code. Therefore, the results of a race for regional superintendent of schools cannot be used to determine the political composition of the board of review. Under section 6-15 of the Code, a county board member is generally a county officer. However, the political composition of the board of review may be determined from the results of a vote for county board member only in a contested race subject to a countywide vote. 35 ILCS 200/6-5, 6-15 (West 2006).

 

Informal Opinion No. I-07-046

Issued September 6, 2007

Children’s Advocacy Center as a Local Anti-Crime Program Eligible for Fine Proceeds Disbursed as Part of Sentencing Disposition

Subsections 5-6-3(b)(13) and 5-6-3.1(c)(13) of the Unified Code of Corrections authorize a sentencing court to require the reimbursement of and contributions to “local anti-crime programs” in connection with orders of probation and court supervision. A children’s advocacy center may meet the statutory definition of “local anti-crime program” within the Anti-Crime Advisory Council Act, depending on the protocols adopted and the programs offered as reviewed on a case-by-case basis. 55 ILCS 80/4(a), (c) (West 2006); 730 ILCS 5/5-6-3(b), 5/5-6-3.1(c) (West 2006), as amended by Public Act 95-331, effective August 21, 2007.

 

Informal Opinion No. I-07-047

Issued September 13, 2007

Powers of Emergency Telephone System Board

A county emergency telephone system board (ETS Board) has the sole authority for the planning, coordination, and supervision of the county emergency telephone system (ETS), as well as for the disbursement of funds from the Emergency Telephone System Fund, including determining how those funds are expended. The ETS Board may enter into contracts for the purposes enumerated in section 15.4 of the Emergency Telephone System Act and may lease buildings or other structures necessary for the operation of the ETS. The ETS Board may not sue or be sued, and may not purchase real property. 50 ILCS 750/15.4 (West 2006).

 

Informal Opinion No. I-07-048

Issued September 21, 2007

Use of Proceeds from the Special County Retailers’ Occupation Tax for Public Safety or Transportation

Proceeds of the Special County Retailers’ Occupation Tax For Public Safety or Transportation may be used to pay for existing “public safety” costs, such as salaries of deputy sheriffs, notwithstanding whether such costs were previously paid from other county funds. Public Safety Tax proceeds may not generally be used to purchase fire fighting equipment to assist local fire protection districts. If a county operates a radio broadcasting station under section 5-1046 of the Counties Code, the proceeds of the Public Safety Tax may be used to pay for acquiring and furnishing radio receiving sets and other such equipment to fire protection officers and employees in the county for fire protection purposes. Proceeds of the Public Safety Tax may not be donated to a school, but may be used to provide school security measures in school facilities in the county in the circumstances described. 55 ILCS 5/5-1006.5 (West 2006); 55 ILCS 5/5-1046 (West 2006).

 

Informal Opinion No. I-07-049

Issued September 27, 2007

Compatibility of Offices--Township Assessor and Fire Protection District Trustee

Because of a potential conflict of duties, the offices of township assessor and fire protection district trustee are incompatible. 35 ILCS 200/15-60, 15-80 (West 2006).

 

Informal Opinion No. I-07-050

Issued October 4, 2007

Conflict of Interest--Employment of Spouse of Regional Superintendent of Schools by Regional Office of Education

The existence of a marital relationship between a regional superintendent of schools and his spouse who is employed by the regional office of education does not constitute a per se violation of section 3 of the Public Officer Prohibited Activities Act. However, the employment of the superintendent’s spouse may result in a common law conflict of interest. Thus, the superintendent should not act on matters related to the employment of his spouse. 50 ILCS 105/3 (West 2006).


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