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

March 2008, vol. 9, no. 3

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2006), as amended by Public Act 95-699, effective November 9, 2007), 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 official opinion Nos. 07-001 through 07-003 and informal opinion Nos. I-07-051 through I-07-057 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 .

 

Opinion No. 07-001

Issued December 24, 2007

Overage Reports under the State Officials and Employees Ethics Act

Pursuant to section 20-65 of the State Officials and Employees Ethics Act, if an Executive Inspector General (EIG) fails to complete an investigation within six months after opening an investigation, he or she must submit an overage report to both the Commission and the “appropriate ultimate jurisdictional authority” setting forth the general nature of the allegation and the reason for failing to complete the investigation within six months. Therefore, the EIG for the Agencies of the Illinois Governor (EIGG) is under a statutory duty to notify the individual board of trustees of the specific State university or community college whose officer or employee is the subject of an investigation of the general nature of the allegation or information giving rise to the investigation and the reasons for the EIGG’s failure to complete that particular investigation within six months. Accordingly, the EIGG does not satisfy his duty to report overage investigations to the appropriate ultimate jurisdictional authority by simply distributing a single overage report to the boards of trustees of all of the State’s universities and community colleges. 5 ILCS 430/20-65 (West 2006).

 

Opinion No. 07-002

Issued December 24, 2007

Public Access to Search Warrant Information Prior to the Final Disposition of a Case

Complaints for search warrants, accompanying affidavits or other evidence in support thereof, and the warrants themselves are subject to public inspection pursuant to section 16 of the Clerks of Courts Act once the warrants have been returned to the court. There is no statutory or other authority that permits a circuit clerk to unilaterally seal or impound complaints for search warrants, affidavits, or the search warrants themselves. Absent a court order otherwise providing, therefore, circuit clerks must make these documents available to the public. 5 ILCS 140/1 et seq. (West 2006); 705 ILCS 105/16 (West 2006); 725 ILCS 5/108-4 (West 2006), as amended by Public Act 95-331, effective August 21, 2007.

 

Opinion No. 07-003

Issued December 26, 2007

Applicability of the Local Records Act to the Records of County Election Commissions

Except as may be otherwise provided by law, county election commissions are subject to and must comply with the Local Records Act if destroying or otherwise disposing of the public records in their custody. Nothing in the Federal or State election laws exempts county election commissions from satisfying the Local Records Act’s requirements with regard to public records, including election materials, in their possession. 50 ILCS 205/3, 4, 7 (West 2006); 42 U.S.C. §1974 (2000).

 

Informal Opinion No. I-07-051

Issued November 1, 2007

Conflict of Interest–Firefighter or Paramedic Serving as Fire Protection District Trustee

Section 4 of the Fire Protection District Act generally prohibits fire protection district trustees from having a personal pecuniary interest in any contract entered into by the fire protection district beyond the minimal contract amounts set forth therein, including contracts between a fire protection district and a firefighter or paramedic for services as such. However, section 12 of the Local Governmental Employees Political Rights Act authorizes members of fire protection districts or fire departments to serve in any elected or appointed public office, including the office of fire protection district trustee. Therefore, construing the two statutory provisions together, a firefighter or paramedic may serve as a fire protection district trustee, but he or she must abstain from voting on matters relating to his or her compensation or benefits received from the fire protection district. 50 ILCS 135/12 (West 2006), as amended by Public Act 95-142, effective August 13, 2007; 70 ILCS 705/4 (West 2006).

 

Informal Opinion No. I-07-053

Issued December 6, 2007

Liens on Property for Fines and Costs of Prosecution

Section 124A-10 of the Code of Criminal Procedure of 1963 applies to all criminal offenses, whether classified as felonies or misdemeanors but not juvenile court proceedings. For purposes of section 124A-10, a court-ordered payment schedule is implemented upon entry of the court order. A certified copy of a judgment is an actual copy of the judgment order, signed and certified as true. Delinquency percentage rates should be applied only to the original judgment amount and should not be calculated on a cumulative or compounded basis, nor should delinquency rates be applied to restitution that may be ordered by the court. Notice to those assessed delinquency charges is required, but personal or actual notice is not necessary. At the defendant’s request, the State’s Attorney should prepare and the clerk should record a release of lien once full payment has been made. Any administrative costs incurred by the clerk of the court in collecting unpaid judgment balances may be covered by the additional amounts collected. 705 ILCS 105/16 (West 2006); 725 ILCS 5/102-15, 124A-5, 124A-10 (West 2006); 730 ILCS 5/5-5-6 (West 2006), as amended by Public Act 95-331, effective August 21, 2007; 735 ILCS 5/12-183 (West 2006).

 

Informal Opinion No. I-07-054

Issued December 13, 2007

“Additional Corporate Tax” Levy by a Park District Subject to the Property Tax Extension Limitation Law

Park districts that are subject to the Property Tax Extension Limitation Law (PTELL) and that have never levied for the additional tax authorized by section 5-3 of the Park District Code must obtain referendum approval in accordance with section 18-190 of PTELL in order to levy the additional tax. 35 ILCS 200/18-190 (West 2006); 70 ILCS 1205/5-3 (West 2006).

 

Informal Opinion No. I-07-055

Issued December 13, 2007

Amendment of County Zoning Ordinance

(1) A county may not effectuate a comprehensive rezoning through the adoption of a single map amendment. (2) A county may use overlay zoning as long as the restrictions imposed in an overlay district do not exceed the county’s general zoning authority. (3) A county may use its zoning ordinance to protect natural areas and wildlife habitat, prevent pollution, conserve natural resources, and preserve scenic beauty without the adoption of a Land Resource Management Plan. (4) A non-home-rule county’s zoning ordinance may not authorize private parties to convey development rights from one parcel to another. (5) Although a full legal description of the property included in a map amendment is not specifically required, it is advisable to use the legal description. (6) Although a full legal description of the property included in a text amendment is not specifically required, it is likewise advisable to use the legal description. (7) Any municipality that has a zoning ordinance in effect and shares a boundary with the land to be rezoned by the county has protest rights under section 5-12014 of the Counties Code, regardless of whether the municipality’s property is significantly affected by a text amendment. (8) Under section 5-12014 of the Counties Code, acreage and perimeters of non-contiguous parcels should be considered together in determining protest rights. (9) When property in more than one township is affected by a single map amendment, a hearing should be held in one township, recessed, and then reconvened in the other township. 50 ILCS 805/1, 2, 4 (West 2006); 55 ILCS 5/5-12014 (West 2006).

 

Informal Opinion No. I-07-056

Issued December 28, 2007

Immunity and Indemnification of Hospital Personnel Assisting Law Enforcement Officers With Blood Tests of DUI Suspects

Hospital personnel who draw blood samples from individuals who are arrested for or suspected of violating section 11-501 of the Illinois Vehicle Code, the statutory provision addressing driving while under the influence of alcohol, other drugs, or intoxicating compounds, may be entitled to civil immunity under section 11-500.1 of the Illinois Vehicle Code, depending on the particular facts and circumstances of a given situation. Hospital personnel in the circumstances indicated above are not entitled to representation and indemnification under the State Employee Indemnification Act, unless they constitute “State employees” as that term is used in the Indemnification Act and depending on the particular facts and circumstances of the situation. Whether section 11-501 of the Illinois Vehicle Code or the State Employee Indemnification Act applies will require a case-by-case analysis of the facts unique to each hospital staff member and the surrounding circumstances. Hospital personnel in the circumstances set out above are not entitled to civil immunity under section 107-8 of the Code of Criminal Procedure of 1963. 5 ILCS 350/0.01 et seq. (West 2006); 625 ILCS 5/11-500.1 (West 2006); 725 ILCS 5/107-8 (West 2006).

 

Informal Opinion No. I-07-057

Issued December 28, 2007

Validity of a Home Rule Tax on Fountain Soft Drinks

Section 8-11-6b of the Illinois Municipal Code generally preempts the authority of home rule municipalities to impose a separate, stand-alone tax on soft drinks. However, home rule municipalities may impose a tax on soft drinks to the extent that soft drinks properly fall within a category of taxes which a municipality is authorized to levy on a general category of food, beverages, other goods, or tangible personal property. 65 ILCS 5/8-11-6a (West 2006), as amended by Public Act 95-544, effective August 28, 2007; 65 ILCS 5/8-11-6b (West 2006).


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