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

September 2009, vol. 11, no. 1

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2008)), 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. 09-001 through 09-002 and informal opinions Nos. I-09-001 through I-09-011 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. 09-001
Issued February 25, 2009

Senatorial Vacancy under the Seventeenth Amendment

The seventeenth amendment expresses a preference for allowing the people of Illinois to elect a U.S. Senator to fill a vacancy. Moreover, the U.S. Constitution grants states broad authority to determine the time, place, and manner of elections to fill U.S. Senate vacancies. A law setting a special election for the U.S. Senate is consistent with that authority. Further, a temporary appointee does not possess a vested contractual right in his or her senatorial appointment that the General Assembly is constitutionally prohibited from altering through the legislative process. The constitutional right to equal protection of the laws and the prohibitions against bills of attainder and special legislation do not prohibit the General Assembly from passing a bill changing the date of an election to choose a new U.S. Senator. 10 ILCS 5/25-8 (West 2006); U.S. Const. amend. XVII.

Opinion No. 09-002
Issued March 5, 2009

Authority of Advanced Practice Clinicians to Dispense Mifepristone

Although the Federal Drug Administration requires that Mifepristone be provided “by or under the supervision of a physician,” the authority of advanced practice clinicians (APCs), such as advanced practice nurses and physician assistants, to dispense Mifepristone under a physician’s supervision depends on state law. Under Illinois law, APCs may generally prescribe and dispense most classes of prescription drugs upon the delegation of a supervising or collaborating physician as described in written guidelines or agreements governing the supervising or collaborative relationship. 225 ILCS 60/54.5 (West 2007 Supp.); 225 ILCS 65/50-1 et seq. (West 2007 Supp.); 225 ILCS 95/7.5 (West 2006); 720 ILCS 510/3.1 (West 2006).

Informal Opinion No. I-09-001
Issued March 5, 2009

Compatibility of Offices – County Board Member and Village President

Section 1 of the Public Officer Prohibited Activities Act precludes a county board member, during his or her term of office, from simultaneously holding the office of village president. Consequently, if a county board member, during his or her term of office, is elected to the office of village president, that election is void under section 1 of the Prohibited Activities Act. Because any such election is void, a county board member who obtains the most votes in an election for the office of village president has no discretion to accept the office of village president. A sitting county board member, however, remains entitled to hold the office of county board member. Should a sitting county board member wish to seek election to the office of village president, he or she must first resign from the county board. 50 ILCS 105/1 (West 2006).

Informal Opinion No. I-09-002
Issued March 12, 2009

Compatibility of Offices – School Board Member and Township Highway Commissioner

Because of a potential conflict in duties, the offices of school board member and township highway commissioner are incompatible. 105 ILCS 5/5-29, 10-22.28a, 10-22.36A (West 2006); 605 ILCS 5/2-103, 6-102, 6-201.6 (West 2006).

Informal Opinion No. I-09-004
Issued May 7, 2009

Release of Monies From the County Bridge Fund to Municipalities Subject to the Property Tax Extension Limitation Law

Section 5-501 of the Illinois Highway Code requires a county board to provide aid in the amount of one-half of the expenses of construction or repair of a bridge if all of the statutory prerequisites contained therein have been met, including the prerequisite that the road district or municipality seeking county aid for bridge construction or repair must have levied the maximum applicable tax rate for the prior two years. Although section 5-501 of the Highway Code expressly allows a road district to retain its eligibility if, at the time the property tax extension limitation was imposed, the road district was levying at the maximum allowable rate and continues to levy the maximum allowable amount after the imposition of the property tax extension limitation, section 5-501 contains no similar provision applicable to municipalities. Accordingly, a county board may not appropriate to, and a county superintendent of highways may not release monies from, the county bridge fund to a municipality seeking county aid under section 5-501 if the municipality has not been levying the full amount allowed by law to be extended for corporate purposes for the preceding two years, notwithstanding that the municipality is subject to the Property Tax Extension Limitation Law. 605 ILCS 5/5-501 (West 2006).

Informal Opinion No. I-09-005
Issued May 20, 2009

Compatibility of Offices – County Board Member and School Board Member

Pursuant to section 1 of the Public Officer Prohibited Activities Act, a county board member may not be elected to or hold the office of school board member simultaneously unless specifically authorized to do so by statute. If a county board member in a county of 40,000 or more inhabitants, during his or her term of office, is elected to the office of school board member, the election is void under section 1 of the Public Officer Prohibited Activities Act. Because the election is void, a county board member who receives the requisite number of votes to be elected to the office of school board member has no discretion to accept the office of school board member. The incumbent county board member remains entitled to hold the office of county board member. 50 ILCS 105/1, 1.2 (West 2006).

Informal Opinion No. I-09-007
Issued July 9, 2009

Institution of a Mandamus Action Against a River Conservancy District

Whether the Rend Lake Conservancy District is maintaining sufficient rates to defray all fixed, maintenance, and operating expenses under section 11 of the River Conservancy Districts Act is a factual determination that is beyond the scope of the issues that can be addressed in a legal opinion of the Attorney General. To have standing to commence an action for mandamus a party must have a personal or property interest in the subject matter of the complaint and must suffer some injury as a result of the complained-of conduct. 70 ILCS 2105/11 (West 2008).

Informal Opinion No. I-09-008
Issued July 17, 2009

Authority of County Sheriff to Tow Motor Vehicles from Township Roads

Pursuant to section 4-203 of the Illinois Vehicle Code, the county sheriff may authorize the towing of an abandoned or disabled vehicle from a township road without first obtaining a warrant or providing the owner with prior notice. 625 ILCS 5/4-203 (West 2008).

Informal Opinion No. I-09-009
Issued July 30, 2009

Applicability of the Real Estate Transfer Tax Law to the Teachers’ Retirement System

The Teachers’ Retirement System of the State of Illinois (TRS) is an agency of the State. As such, TRS constitutes a “governmental body” for purposes of the real estate transfer tax exemption established by subsection 31-45(b)(1) of the Real Estate Transfer Tax Law. Whether TRS’ corporate entities were “created to carry out a public function” as provided in the administrative rules implementing subsection 31-45(b)(1), thereby qualifying them as “governmental bodies” for purposes of the real estate transfer tax exemption, is a factual determination that is beyond the scope of a legal opinion of the Attorney General. 35 ILCS 200/31-45(b)(1) (West 2008); 86 Ill. Adm. Code §120.20, as amended by 28 Ill. Reg. 14155, 14170 (effective October 13, 2004).

Informal Opinion No. I-09-010
Issued July 30, 2009

Admissibility of Evidence Measuring Speed of Vehicle Using Light Detection and Ranging (LIDAR) Technology

Absent a Frye hearing, evidence which uses light detection and ranging (LIDAR) laser technology to measure the speed of a vehicle is currently inadmissible in Illinois.

Informal Opinion No. I-09-011
Issued July 30, 2009

Authority of a City and a County to Enter into a Pre-Annexation Agreement; Jurisdiction Over Property Subject to a Pre-Annexation Agreement

A city and a county may enter into a pre-annexation agreement concerning unincorporated territory owned by the county that is located within one and one-half miles of the city’s corporate boundaries. The city and the county may not, via the pre-annexation agreement or through an intergovernmental cooperation agreement, agree that the county will exercise zoning authority over the property. 5 ILCS 220/5 (West 2008); 65 ILCS 5/11-15.1-1, 11-15.1-2.1 (West 2008). ■


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