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

September 2008, vol. 10, no. 1

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2007 Supp.)), 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 opinion Nos. I-08-001 through I-08-022 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-08-001 Issued January 24, 2008

Conflict of Interest – Township Road Commissioner Employed by a Trucking Company Providing Services to the Township Road District

An employee is ordinarily deemed to have at least an indirect pecuniary interest in the contracts of his or her employer. Thus, if a township road commissioner contracts with a private trucking company that employs him or her, the township official has a prohibited conflict of interest under section 6-411.11 of the Illinois Highway Code. 60 ILCS 1/85-45 (West 2006); 605 ILCS 5/6-201.6, 6-201.7, 6-411.1 (West 2006).

Informal Opinion No. I-08-002 Issued February 28, 2008

Solicitation of Donations for Sheriff’s K-9 Program; Payment of Health Plan Fee for County Employees by County Vendor

The Woodford County Ethics Ordinance’s prohibition against the solicitation and acceptance of gifts from prohibited sources does not apply to items which do not provide a tangible, personal benefit to the individual who solicits or receives the item. Thus, neither the solicitation of donations for a service dog to be used to further the law enforcement objectives of the sheriff’s office, nor the making of such donations by individuals who do or seek to do business with the county, would be prohibited by the county’s ethics ordinance. The payment of county employees’ health savings account processing fees by a county insurance vendor constituted a gift from a prohibited source to the employees who benefitted from these payments, for purposes of the county’s ethics ordinance. Because the benefit to each employee was only $25, however, the gifts fell within the State Officials and Employees Ethics Act’s and the ordinance’s exception for gifts valued at less than $100 annually. 5 ILCS 430/1-5 (West 2006); 5 ILCS 430/10-10 (West 2006); 5 ILCS 430/70-5 (West 2006).

Informal Opinion No. I-08-003 Issued February 29, 2008

Authority to Alter Speed Limit and Post Speed Limit Signs on County Highways

An engineering study is not a statutory prerequisite to a county board’s exercise of its authority to establish a reasonable and safe speed limit for motor vehicles on county highways pursuant to section 11-604 of the Vehicle Code. All traffic control devices, including speed limit signs, however, must be placed in conformance with the Illinois Manual on Uniform Traffic Control Devices, which must substantially comply with the national Manual on Uniform Traffic Control Devices (national MUTCD). The national MUTCD requires an engineering study before posting a speed limit sign. Therefore, an engineering study is required before signs may be posted to implement the new speed limit. A county is not required to establish a speed limit based solely on the speed of free-flowing traffic measured by such study, but may consider other factors, including reported crash information. 625 ILCS 5/11-304, 11-604 (West 2006).

Informal Opinion No. I-08-005

Issued March 19, 2008

Allocation and Distribution of Drug Fine Proceeds to a Multi-Jurisdictional Drug Task Force

Neither subsection 10.2(b)(3) of the Cannabis Control Act nor subsection 413(b) of the Illinois Controlled Substances Act expressly authorizes the court to allocate drug fine proceeds to a multi-jurisdictional drug task force. Further, neither a multi-jurisdictional drug task force, nor its policy board, is a “law enforcement agency” of a unit of local government. Consequently, subsection 10.2(b) of the Cannabis Control Act and subsection 413(b) of the Illinois Controlled Substances Act do not authorize the allocation of 37½ percent of the fine proceeds directly to a multi-jurisdictional drug task force. Such proceeds should be allocated “to or among the law enforcement agency or agencies of the unit or units of local government which conducted the seizure[.]” 720 ILCS 550/10.2(b)(3) (West 2006); 720 ILCS 570/413(b)(3) (West 2006).

Informal opinion No. I-08-006 Issued March 20, 2008

Extraterritorial Jurisdiction Over Subdivision Absent Comprehensive Plan

A municipality may not exercise extraterritorial jurisdiction to require that a subdivision of land located within one and one-half miles of its corporate limits comply with the municipality’s subdivision ordinance absent the formal adoption of a comprehensive plan and ordinances implementing the plan. 65 ILCS 5/11-12-8 (West 2006); 65 ILCS 5/11-12-12 (West 2006); 55 ILCS 5/3-5029 (West 2006).

Informal opinion No. I-08-007 Issued March 24, 2008

Relocation of a “Retail Tobacco Store” under the Smoke Free Illinois Act

If an existing business that qualifies for the retail tobacco store exemption under section 35 of the Smoke Free Illinois Act relocates to another location subsequent to January 1, 2008, the new location will be subject to the same limitations as a retail tobacco store that begins operations after that date. Public Act 95-017, §35, effective January 1, 2008, to be codified at 410 ILCS 82/35.

Informal opinion No. I-08-008 Issued March 25, 2008

Compatibility of Offices–County Board Member and Assistant State’s Attorney in Neighboring County

Section 1 of the Public Officer Prohibited Activities Act precludes a member of the county board, during his or her term of office, from simultaneously holding the office of Assistant State’s Attorney. Consequently, if a county board member, during his or her term of office, is appointed to the office of Assistant State’s Attorney in a neighboring county, that appointment is void under section 1 of the Public Officer Prohibited Activities Act. 50 ILCS 105/1 (West 2006).

Informal opinion No. I-08-009 Issued March 27, 2008

Authority of University Civil Service Merit Board and Individual Employer to Order Disciplinary Suspensions

The University Civil Service Merit Board is empowered, in a discharge proceeding, to impose disciplinary suspensions or other appropriate remedies in lieu of demotion, removal, or discharge. The Board of Trustees of Southern Illinois University possesses the authority to impose disciplinary suspensions upon its employees. Depending on the findings of the Merit Board and the specifics of any disciplinary order entered, a civil service employer, such as Southern Illinois University at Edwardsville, that has been granted the requisite authority to take disciplinary action, may be precluded from suspending a reinstated employee without pay based on the conduct that served as the basis of discharge proceedings. Whether a suspension may be imposed, requires a case-by-case determination. 110 ILCS 70/36d (West 2006); 110 ILCS 70/36o (West 2006), as amended by Public Act 95-113, effective August 13, 2007.

Informal opinion No. I-08-010 Issued March 28, 2008

County’s Authority to Issue Bonds to Renovate Private, Not-For-Profit Hospital

A non-home-rule county may not issue bonds or make contributions to renovate a hospital owned and operated by a private, not-for-profit corporation. 55 ILCS 5/5-1012, 6-7001 (West 2006); 55 ILCS 5/5-1005 (West 2006), as amended by Public Act 95-197, effective August 16, 2007.

Informal opinion No. I-08-011 Issued April 17, 2008

Disclosure of Unusual Incident Reports under the Freedom of Information Act

Unusual incident reports (UIR) cover a broad range of events and occurrences. Although there are specific statutory provisions and Department of Children and Family Services administrative rules that prohibit the disclosure of certain Department records or portions thereof, none purport to prohibit the disclosure of UIRs as a matter of law. Rather, Federal and Illinois laws contemplate that certain information contained in a UIR may be withheld. Accordingly, the Department must review each specific request for a UIR on a case-by-case basis to determine whether disclosure is prohibited under the applicable Federal or State law and which Freedom of Information Act exemption, if any, applies. 20 ILCS 505/35.1 (West 2006); 325 ILCS 5/11 (West 2006).

Informal opinion No. I-08-012 Issued April 17, 2008

Sheriff’s Authority to Enforce Municipal and Township Ordinance Violations; State’s Attorney’s Duty to Prosecute Municipal and Township Ordinance Violations

A sheriff possesses the statutory authority to issue citations for municipal ordinances in certain instances relating to public highways and parking or standing vehicle violations, and also to serve summons for municipal ordinance violations and to arrest, with or without process, individuals who are found to be violating any municipal ordinance. With respect to townships, however, a sheriff does not possess the authority to enforce township ordinance violations unless the county and township enter into an intergovernmental cooperation agreement. A State’s Attorney has no statutory duty to prosecute municipal and township ordinance violations. A county may, with the State’s Attorney’s consent, enter into an intergovernmental cooperation agreement with a municipality or a township to provide for the State’s Attorney to prosecute such violations. 55 ILCS 5/3-6036 (West 2006); 60 ILCS 1/100-10.5 (West 2006); 65 ILCS 5/1-2-9, 1-2-11 (West 2006); Ill. Const. 1970, art. VII, §4.

Informal opinion No. I-08-013 Issued May 5, 2008

Refunding Overpayment of Property Taxes

Article 23 of the Property Tax Code, which sets out a general procedure for a judicial tax objection process, is inapplicable to exemptions from taxation, such as the general homestead exemption. The supervisor of assessments may issue a certificate of error under section 14-20 of the Tax Code only prior to the entry of judgment or order of sale with regard to any of the county’s delinquent tax properties. The board of review may issue a certificate of error under sections 16-70 and 16-75 prior to its adjournment for the tax year. Upon the issuance of a certificate of error, the county collector may refund an overpayment under section 20-175 of the Tax Code. A taxpayer who failed to timely file an application for a general homestead exemption is not entitled to a refund. 35 ILCS 200/14-20, 16-70, 16-75, 20-175 (West 2006); 35 ILCS 200/15-175 (West 2006), as amended by Public Act 95-644, effective October 12, 2007.

Informal opinion No. I-08-014 Issued May 15, 2008

Authority of County Recorder to Accept and Record Electronic Documents

Following the enactment of the Uniform Real Property Electronic Recording Act, Illinois county recorders may accept, process, and record documents submitted in electronic form. The recorders are to follow the standards adopted by the Illinois Electronic Records Commission. 5 ILCS 175/5-115, 5-120, 5-125; 55 ILCS 5/3-5010 (West 2006); Public Act 95-472, effective August 27, 2007, to be codified at 765 ILCS 33/1 et seq.

Informal opinion No. I-08-015 Issued May 15, 2008

Compatibility of Offices – Deputy Sheriff and Village Police Chief

Because there is no conflict in duties, the offices of village police chief and deputy sheriff are not incompatible.

Informal opinion No. I-08-016 Issued May 22, 2008

Non-Attorney Authorized Agents Appearing in Administrative Hearings Before the Illinois Department of Employment Security

The Illinois Supreme Court has the exclusive authority to license, regulate, and define the practice of law in this State, including the practice of law before administrative agencies such as the Department of Employment Security. The Department does not possess the authority to authorize non-lawyers to engage in the “practice of law” in administrative hearings conducted by the Department. Whether the particular acts of an agent constitute the “practice of law” is a question of fact. 820 ILCS 405/806 (West 2006).

Informal opinion No. I-08-017 Issued May 29, 2008

Subdivision of Property under the Plat Act

The Plat Act does not prohibit the division of property into parcels of less than two acres in area. 765 ILCS 205/0.01 et seq. (West 2006).

Informal opinion No. I-08-018 Issued June 12, 2008

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

Public Safety or Transportation Tax (Public Safety Tax) proceeds must be used exclusively for public safety or transportation purposes. Qualifying “public safety” purposes include expenditures related to medical, ambulance, and other emergency services, which would permit the payment of qualifying expenditures related to the operation of a county hospital, non-sectarian public hospital, or county ambulance service from Public Safety Tax proceeds. Although a county board may not donate, contribute, or make a gift of Public Safety Tax proceeds to a private, not-for-profit corporation to fund a hospital, the county and a not-for-profit corporation could enter into an agreement related to the furnishing of hospital and ambulance services. Public Safety Tax proceeds may be used to pay for qualifying medical, ambulance, or other emergency services arising from such contracts. 55 ILCS 5/5-1006.5 (West 2007 Supp.).

Informal opinion No. I-08-019 Issued June 26, 2008

Creation of Emergency Telephone System Board without Passage of Referendum

Passage of a referendum is not a prerequisite for the establishment of an emergency telephone system. In the absence of a referendum imposing a surcharge, a county board may establish an emergency telephone committee and delegate to it the ministerial functions associated with operating a county emergency telephone system. A county board may not create an emergency telephone system board and confer on it all of the powers and duties set out in section 15.4 of the Emergency Telephone System Act. 50 ILCS 750/15.4 (West 2007 Supp.).

Informal opinion No. I-08-020 Issued July 1, 2008

Compatibility of Offices--County Board Member and County Housing Authority Commissioner

Pursuant to section 3 of the Housing Authorities Act, only two “public officers” may serve on a county housing authority board simultaneously. Because county board members are persons holding local governmental offices and because section 2-3008 of the Counties Code authorizes the compensation of county board members on an annual basis, county board members are “public officers” as that term is defined in the Act. For the same reasons, city aldermen are “public officers” within the Act’s terms. Consequently, two county board members and a city alderman may not serve on the county housing authority board simultaneously. 50 ILCS 105/1 (West 2006); 55 ILCS 5/2-3008 (West 2006); 310 ILCS 10/3 (West 2006).

Informal Opinion No. I-08-021 Issued July 10, 2008

Creation and Operation of Joint Dispatch Call Center

A county emergency telephone system board (ETS Board) may operate a joint dispatch call center with the county sheriff’s office and a municipal police department that responds to emergency and non-emergency requests for assistance. Emergency telephone system funds may be expended for the costs to employ telecommunicators only to answer emergency calls. The ETS Board may not expend ETS moneys to employ telecommunicators to answer non-emergency calls. Costs must be pro rated among the various agencies participating in the joint dispatch center. 50 ILCS 750/15.4 (West 2007 Supp.); Ill. Const. 1970, art. VII, §10.

Informal Opinion No. I-08-022 Issued July 24, 2008

Temporary Registration of a Vehicle Purchased in Iowa

If an Illinois resident purchases a motor vehicle in Iowa, Illinois will grant reciprocity to Iowa transit permits only for the movement of the vehicle from the Iowa car dealership directly to the residence of the owner. In the circumstances under review the owner was not required to display an Illinois temporary registration permit but could operate his recently purchased vehicle in Illinois pending completion of its registration, by displaying a copy of the Illinois registration application in the windshield of the vehicle. 625 ILCS 5/3-701 (West 2006); 625 ILCS 5/3-401 (West 2006).


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