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

September 2009, vol. 11, no. 1

2009 legislative summary

The following is a summary of some of the more controversial bills affecting government lawyers that were considered by the General Assembly in the 2009 spring session. The summary is intended to inform Committee members and other newsletter readers of legislation that may be of particular interest to them. The bills are grouped according to subject matter. Not surprisingly, ethics reform remains a top legislative priority.

For those bills that the Governor has signed into law when this edition went to print, public act numbers are provided. The governor has 60 days upon receipt of a bill to veto, amendatorily veto, or sign it into law. Signed laws become law on the effective date of the legislation. Bills that are vetoed or amendatorily vetoed will be considered in the fall legislative session, which this year is scheduled for October 14-16, and 28-30, 2009.

Administrative Rulemaking

House Bill 276 amends the Illinois Administrative Procedure Act. This legislation provides that, unless specified otherwise in the Act, a State agency subject to the Administrative Procedure Act is not exempt from adopting rules pursuant to the Act covering the agency’s statements of general applicability regarding law or policy affecting persons or entities outside the agency, including grant-making policy. The bill requires that all State agencies subject to the Act with grant-making authority adopt rules governing the various aspects of the grant-making process.

The Standing Committee on Government Lawyers (the Standing Committee) supported the legislation. The bill passed the House and Senate unanimously and was sent to the Governor on June 17, 2009. The Governor issued an amendatory veto on the bill on August 14, 2009.

House Bill 398 amended the Illinois Administrative Procedure Act. This new law provides that all rulemaking authority exercised on or after the effective date of the Act is conditioned on the rules being adopted in accordance with all provisions of the Act and all rules and procedures of the Joint Committee on Administrative Rules (JCAR). Any purported rule not so adopted, for whatever reason, including without limitation a decision of a court of competent jurisdiction holding any part of this Act or the rules or procedures of JCAR invalid, is unauthorized.

The Standing Committee supported the bill which passed the House and Senate unanimously. The Governor approved the legislation on February 26, 2009, and Public Act 96-002 took effect the same day.

Government Accountability and Identity Protection

House Bill 4088 creates the Illinois Accurate Government Records Act. This bill sets forth the findings of the General Assembly and contains provisions concerning an individual’s access to his or her personal records maintained by a State or local government agency. There are provisions concerning an individual’s correction of his or her personal records and the limitations on an agency’s disclosure of personal records. The bill contains provisions concerning the limitations on an agency’s maintenance of systems of personal records and an agency’s maintenance of personal records. There are provisions concerning civil remedies, agency responsibilities, and the Attorney General’s responsibilities. Finally, the bill contains provisions concerning government contractors and the rights of legal guardians.

The House passed the measure unanimously. The Senate amended the legislation by making changes in the definitions for the terms “local agency” and “personal record.” The amendments specify that certain provisions apply to an individual’s personal records and change provisions concerning (1) access to an individual’s personal records, (2) changes to an individual’s personal records, and (3) limitations on an agency’s (i) disclosure and (ii) maintenance of an individual’s personal records. The amendments further change provisions concerning civil remedies and the provisions concerning the responsibilities of the Attorney General. The Senate adopted the amendments and then passed the bill.

The bill was returned to the House for concurrence and was assigned to the House Rules Committee on May 30, 2009. The Standing Committee supported the Senate amendments.

Senate Bill 2178 creates the Illinois Plain Language Task Force Act. It provides that a Task Force chaired by the Governor or his designee shall conduct a study on, and propose legislative measures designed to realize the potential benefits of, incorporating plain language in State government documents and statutes and into contracts in which the State enters. The Task Force is also to study how plain language principles might be incorporated into the statutes governing contracts among private parties so as to provide additional protections to Illinois consumers, to reduce litigation between private parties over the meaning of contractual terms, and to foster judicial economy. The bill contains provisions regarding the term “plain language,” the composition and duties of the Task Force, and the guidelines the Task Force must follow.

The Standing Committee supported the bill which passed the House and Senate unanimously. The Governor approved the legislation on August 13, 2009, and Public Act 96-350 took effect the same day.

House Bill 547 creates the Identity Protection Act. This Act prohibits a State or local government agency from using an individual’s social security number in certain ways with various exceptions. It requires each State or local government agency to develop and implement an identity protection policy. Any employee of a State or local government agency who intentionally violates the provisions of the Act is guilty of a Class B misdemeanor. In provisions concerning the public inspection and copying of information and documents, the legislation provides that a person or State or local government agency must redact social security numbers from information or documents containing all or any portion of an individual’s social security number. Each State or local government agency is required to develop and approve an identity-protection policy within 12 months after the effective date of the Act. It preempts the concurrent exercise of home rule powers and imposes conditions on any rulemaking authority.

The Standing Committee supported the proposal. The legislation passed the House and Senate and was sent to Governor on June 26, 2009.

Governmental Ethics

House Bill 260 amends the State Officials and Employees Ethics Act. The bill makes changes to the current revolving door prohibition. It sets the trigger at contracts with a cumulative value of over $50,000 (now $25,000) and removes the requirement that the procurement participation of the former officer, member, or State employee was “personal [] and substantial [].”

The Standing Committee supported the legislation. On March 13, 2009, the bill was re-referred to the House Rules Committee.

House Bill 736 amends the State Officials and Employees Ethics Act, the General Assembly Staff Assistants Act, and the Lobbyist Registration Act. This proposal makes changes concerning the lobbying revolving door prohibition for State employees, Web site posting of legislative committee witness slips, registration requirements and exemptions for lobbyists and lobbying entities, disclosure of employment or retention of lobbyists by units of local government and school districts, reports by lobbyists and lobbying entities, gifts from lobbyists and lobbying entities to elected State officials and State employees, and investigation of and penalties for violations of the Lobbyist Registration Act.

The Standing Committee supported the legislation. On March 13, 2009, the bill was re-referred to the House Rules Committee.

House Bill 1203 amends the Illinois Governmental Ethics Act and the Lobbyist Registration Act. The bill redefines a “special government agent” who must file a statement of economic interests to include a person who, by or on behalf of a statewide executive branch constitutional officer, is directed, retained, designated, appointed, or employed to cause the making of an ex partecommunication. The bill also requires that a special government agent file a statement of economic interests before making any ex parte communications (now, within 30 days after). It makes a special government agent’s failure to file a statement a Class 4 felony. A special government agent cannot register under the Lobbyist Registration Act. The bill makes it a violation of that Act for a person required to register to act as a special government agent and for a special government agent to engage in lobbying. Finally, the proposal prohibits a person subject to the Act from accepting compensation from a State agency for lobbying legislative action, but exempts the salaries of full-time State employees with responsibilities or authority other than lobbying.

The Standing Committee supported the legislation. The bill was re-referred to the House Rules Committee on March 13, 2009.

Senate Bill 54 amends the Illinois Governmental Ethics Act, the State Officials and Employees Ethics Act, the Secretary of State Act, the Secretary of State Merit Employment Code, the Comptroller Merit Employment Code, the State Treasurer Employment Code, the Personnel Code, the Children and Family Services Act, the Department of Human Services Act, the Governor’s Office of Management and Budget Act, the General Assembly Compensation Act, the Lobbyist Registration Act, the State Prompt Payment Act, the Illinois Public Aid Code, and the Whistleblower Act. Because the substantive changes to the indicated Acts are too numerous to discuss in detail, an overview of the bill is provided.

The legislation makes changes regarding statements of economic interests, prohibited sources, promise of State employment benefits, revolving door provisions, whistleblower provisions, jurisdiction of ethics commissions, activities prohibited for Executive Ethics Commission members, activities prohibited for and compensation of Executive Inspectors General, duties of Inspectors General, anonymous allegations of ethics violations, investigations of ethics violations by the Attorney General and Special Inspectors General, Inspector General investigation reports, complaint procedures, and decision review, penalties for and injunctive relief against ethics violations, State agency inspectors general, budgets of the Executive Ethics Commission and Executive Inspectors General, expenditures to defray a legislator’s cost of performing governmental and public service functions, the registration and ethics training of and the reporting by lobbyists and lobbying entities, enforcement of lobbying provisions, complaints of and penalties for lobbying violations, and political fundraising in Sangamon County. The bill takes effect immediately in part, and on January 1, 2010, in part.

The Standing Committee supported the bill, provided it would be properly funded. The bill passed the House and Senate unanimously. The Governor approved the legislation on August 18, 2009, and Public Act 96-555 generally took effect that same day. Some parts of the Public Act are not effective until January 1, 2010.

Senate Bill 1602 creates the Gubernatorial Boards and Commissions Act. It establishes ethics requirements and restrictions for current and prospective members of boards and commissions appointed by the Governor. The bill also requires that the Governor’s Office of Boards and Commissions establish and maintain an Internet database of information concerning board and commission membership and requires each board and commission with a Web site and full-time information technology staff to make minutes, recordings, dates, and agendas of its meetings available on its Web site. The legislation amends the Illinois Governmental Ethics Act by requiring appointees to certain gubernatorial boards and commissions to file statements of economic interests.

The Standing Committee supported the bill which passed the House and Senate with just six dissenting votes. The Governor approved the legislation on August 17, 2009, and Public Act 96-543 took effect that same day.

Open Meetings and Freedom of Information

House Bill 793 amends the Open Meetings Act. The legislation permits a public body with statewide jurisdiction or an Illinois library system with jurisdiction over more than 4,500 square miles to include members participating in a video conference at specified locations when determining the physical presence of a quorum at an open meeting (now, a public body with statewide jurisdiction may include members participating in a video conference at specified locations when determining the physical presence of a quorum at an open meeting). The bill further provides that the requirement that members of a public body with less than statewide jurisdiction be physically present at a closed meeting does not include public bodies that are Illinois library systems with jurisdiction over more than 4,500 square miles.

The Standing Committee supported the legislation. The legislation passed the House and Senate and was sent to Governor on June 26, 2009.

House Bill 831 creates the Public Access Counselor and Formal Complaint Act. It establishes the Governor-appointed position of Public Access Counselor to receive inquiries and publish interpretive and educational materials about the Freedom of Information and the Open Meetings acts. The counselor is required to receive complaints and issue advisory opinions on denials of access to public records and public meetings. The bill also provides for the operation of the counselor’s office.

The Standing Committee opposed the bill. The House tabled the bill on March 10, 2009, on the recommendation of the sponsor, Representative Bill Black.

House Bill 4165 amends the Open Meetings Act, the Freedom of Information Act, and the Attorney General Act. It requires each public body to have a freedom of information officer to process requests for inspection and copying of public records and establishes within the Attorney General’s Office an Office of the Public Access Counselor. The legislation requires the Attorney General to appoint the counselor and authorizes the counselor to issue binding opinions on a public body’s compliance with the Open Meetings Act or on a public body’s denial of access to public records, when requested by the denied party. Opinions of the Public Access Counselor are subject to judicial review under the Administrative Review Law.

The Standing Committee opposed the bill. It was re-referred to the House Rules Committee on April 3, 2009.

Senate Bill 189 amends the Open Meetings Act, the Attorney General Act, and most importantly, the Freedom of Information Act. This legislation was perhaps the most contentious bill for government lawyers because of the General Assembly’s sweeping rewrite of the current Freedom of Information Act. In short, it gives the Attorney General’s Office authority to settle disputes over what records are public through a newly created Public Access Counselor who will act as the final authority in cases where a government body has denied a request for records, documents, or other information. The legislation also shortens the time government has to respond to record requests, and it establishes fines for violators and will cause public agencies to pay attorneys fees if they lose a court challenge.

One proponent, the Illinois Press Association, which represents many newspapers statewide, embraced the measure as a good compromise after pushing for stronger legislation.

The reform measure faced opposition from two government groups, the Illinois State’s Attorneys Association and the Illinois Municipal League. Both groups wanted the Governor to make changes that many argued would make the new law inefficient and ineffective. The organizations believed the bill was too costly, a threat to law enforcement, an undue burden on local governments, and a usurpation of prosecutors’ duties by the Illinois Attorney General’s Office, among many other things. The state’s attorneys contended that decisions that would be made by the Public Access Counselor should be made in court after they bring charges against government bodies alleged to be in violation of the law, much the same way as Open Meetings Act violations are now handled.

The Standing Committee did not take a position on the legislation. The bill passed the House and Senate with just one dissenting vote. The Governor approved the legislation on August 17, 2009, and Public Act 96-542 takes effect on January 1, 2010.

Public Interest Attorney Assistance

Senate Bill 266 creates the Public Interest Attorney Assistance Act to encourage qualified individuals to enter into and continue their employment in Illinois as assistant state’s attorneys, assistant public defenders, civil legal aid attorneys, assistant Attorneys General, assistant public guardians, Illinois Guardianship and Advocacy Commission attorneys, and legislative attorneys. The bill provides that the Illinois Student Assistance Commission shall establish and administer the Public Interest Attorney Loan Repayment Assistance Program for the primary purpose of providing loan repayment assistance to practicing attorneys to encourage them to pursue careers as public interest attorneys.

The measure also provides for the distribution of funds in the form of a forgivable loan and sets forth provisions concerning the creation of an advisory committee, the application process, eligibility requirements, the maximum amount of assistance, and prioritization.

The Standing Committee supported the bill. It passed both chambers of the legislature and was sent to the Governor on June 25, 2009.

State Employees

House Bill 4450 creates the Officials and Employees Termination Act of 2009. This proposal provides that the terms of office or employment of all designated officials and employees are terminated, by operation of law, effective on the effective date of the Act. The designated officials and employees are: (i) the heads, assistant heads, and deputy heads of executive State agencies who were nominated by the Governor between January 11, 1999, and January 29, 2009, for a position that requires the advice and consent of the Senate; (ii) members of executive boards or commissions who were nominated by the Governor between the dates for a position that requires the advice and consent of the Senate; (iii) employees of executive State agencies or executive boards or commissions, whose employment in a Rutan exempt position began between the indicated dates; (iv) employees of executive State agencies or executive boards or commissions, appointed to a term appointment between those dates; and (v) any other official or employee who was nominated by the Governor between the indicated dates for a position that requires the advice and consent of the Senate.

Executive State agencies and executive boards or commissions are those under the executive branch but not under the jurisdiction and control of the Lieutenant Governor, Attorney General, Secretary of State, Treasurer, or Comptroller. The bill allows the Governor to make temporary appointments and to subsequently nominate or employ a terminated person.

The Standing Committee did not take a position on the bill. It was re-referred to the House Rules Committee on May 31, 2009.

Miscellaneous

House Bill 331 amends the Code of Civil Procedure. The bill provides that in an action brought by a citizen taxpayer of the State to restrain and enjoin the disbursement of public funds by any officer of the State, the court may, in its discretion, award the prevailing party reasonable attorney fees.

The Standing Committee opposed the legislation. On March 13, 2009, the bill was re-referred to the House Rules Committee.

You can track the status of any legislative proposal by accessing the General Assembly homepage at www.ilga.gov and clicking on “Bills and Resolutions” and then the specific bill number. Or, the General Assembly has a free service to track legislation called “My Legislation.” Go to the homepage, click on “My Legislation,” and follow the instructions. ■

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The author is the Assistant General Counsel of the Illinois Department of Revenue and Vice Chair of the ISBA’s Standing Committee on Government Lawyers. The opinions expressed herein are solely his and not those of the Department.


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