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

October 2012, vol. 14, no. 1

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2010)), 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-12-001 through I-12-010 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-12-001, issued February 17, 2012

Compatibility of Offices – County Board Member and Fire Protection District Trustee

Pursuant to section 1 of the Public Officer Prohibited Activities Act, a county board member may not be appointed to serve as a fire protection district trustee. If a county board member, during his or her term of office, is appointed to the office of fire protection district trustee, that appointment is void under section 1 of the Public Officer Prohibited Activities Act. 50 ILCS 105/1 (West 2010).

Informal Opinion No. I-12-002, issued February 23, 2012

Withdrawal of Unconditional Resignation by Township Supervisor

A township supervisor may not unilaterally withdraw his or her unconditional resignation after it has been tendered to the township board, regardless of whether the township board affirmatively acted on the resignation before its future effective date. 10 ILCS 5/25 2 (West 2010); 60 ILCS 1/60 20(a), (b) (West 2010).

Informal Opinion No. I-12-003, issued March 2, 2012

Operator of Ambulance Service Serving on County’s Emergency Telephone System Board

An ambulance service operator may serve on an Emergency Telephone System Board (ETS Board) of a county that has a contract with his or her ambulance business because the operator- ETS Board member would not be required to vote on or otherwise act with respect to contracts with ambulance services or other emergency services providers. 50 ILCS 105/3 (West 2010), as amended by Public Act 97-520, effective August 23, 2011; 50 ILCS 750/15.3 (West 2010), as amended by Public Act 97-463, effective January 1, 2012; 50 ILCS 750/15.4(c) (West 2010), as amended by Public Act 97-517, effective August 23, 2011.

Informal Opinion No. I-12-004, issued March 8, 2012

Use of County Self-Insurance Funds to Pay Liability Insurance Premiums

Sections 9-103 and 9-105 of the Local Governmental and Governmental Employees Tort Immunity Act, authorize a “local public entity,” a term which includes a county, to establish a reserve fund to provide for insurance or for self-insurance, as well as to pay for operating and administrative costs and expenses directly associated therewith. Insurance premiums would constitute other costs related to providing insurance coverage against such liabilities. 745 ILCS 10/9-103, 9-105, 9-107 (West 2010).

Informal Opinion No. I-12-005, issued March 29, 2012

Compatibility of Offices – County Board Member and Community College District Trustee

Section 1 of the Public Officer Prohibited Activities Act prohibits county board members in a county having more than 40,000 inhabitants from simultaneously serving as a community college district trustee. Because the dual officeholder in question was elected to the office of county board member while serving as a community college district trustee, his or her qualification for the office of county board member constituted an ipso facto resignation from the office of community college district trustee. 50 ILCS 105/1 (West 2010); 50 ILCS 105/1.2 (West 2010), as amended by Public Act 97-460, effective August 19, 2011.

Informal Opinion No. I-12-006, issued June 14, 2012

Application of County Competitive Bidding Requirements to the Purchase of Health Care and Liability Insurance

Section 5 1022 of the Counties Code generally requires that all purchases of services, materials, equipment, or supplies in excess of $30,000, other than professional services, must be by a contract let to the lowest, responsible bidder after advertising for bids in a newspaper published within the county. Whether the professional services exception to section 5 1022 applies is determined on the basis of whether the services require a high degree of professional skill or judgment or there is a need for confidence, trust, and belief in the person rendering the services. Neither contracts for insurance coverage nor contracts for insurance broker or agent services involve the provision of services requiring a high degree of professional skill or judgment, nor is there a need for confidence, trust, or belief in the person rendering the services. Accordingly, the competitive bidding requirements of section 5 1022 of the Counties Code apply to securing and renewing health care or liability insurance coverage and the use of designated agents to secure or renew the insurance coverage. 55 ILCS 5/5 1022 (West 2010).

Informal Opinion No I-12-007, issued June 21, 2012

Felony Forfeiture of Pension Benefits

The felony conviction of an employee of the State of Illinois for the offenses of mail fraud, wire fraud, intimidation, and official misconduct related to or arose out of or in connection with her employment as a State employee, thereby requiring the forfeiture of her pension benefits. 40 ILCS 5/14 149 (West 2010).

Informal Opinion No. I-12-008, issued June 28, 2012

Status of Community Mental Health Board and Its Employees

A community mental health board established by a county pursuant to the Community Mental Health Act is a county agency. Thus, employees of a community mental health board are county employees. A mental health administrator appointed by a community mental health board is accountable to the community mental health board, not the county board. A vacancy in the position of mental health administrator is filled by the community mental health board, not the county board. 405 ILCS 20/2, 3a, 3b, 3c (West 2010); 405 ILCS 20/3e (West 2010), as amended by Public Act 97 227, effective January 1, 2012.

Informal Opinion No. I-12-009, issued July 11, 2012

Audit of the Illinois High School Association by the Illinois Auditor General

Section 10 22.40 of the School Code prohibits a school board from paying membership dues to an association which has as one of its purposes providing for athletic or other competition among schools and students unless the association permits a post audit by the Auditor General. If any of the Illinois High School Association’s (IHSA) current revenue sources are fees or charges that schools must pay as a condition of membership in the IHSA, those revenue sources constitute “membership dues” within section 10 22.40 of the School Code. Absent a showing that the IHSA receives “public funds of the State,” as that term is used in the Illinois State Auditing Act, however, there is no basis upon which the Auditor General may audit the IHSA. The questions of whether any of the IHSA’s current revenue sources constitute “membership dues” and whether the IHSA receives “public funds of the State” are factual issues. 105 ILCS 5/10 22.40 (West 2010); 30 ILCS 5/1 12 (West 2010).

Informal Opinion No. I-12-010, issued July 26, 2012

State’s Attorney May Form and Consult With Cold Case Advisory Committee; State’s Attorney May Not Hold Funds Outside County Treasury

In light of their duties and recognizing the wide discretion afforded to State’s Attorneys to determine how best to carry them out, nothing precludes a State’s Attorney from forming an advisory committee consisting of attorneys, law enforcement officers, and investigators to review case files and consult with and assist local law enforcement agencies or the State’s Attorney in reviewing cold case investigations. Absent express statutory authority, however, a State’s Attorney may not generally receive donations of private funds or maintain those donated funds outside the county treasury. Monies donated to the State’s Attorney must be paid into the county treasury and will generally be subject to budgeting and appropriation by the county board. 55 ILCS 5/3 9005 (West 2011 Supp.).■

 


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