Standing Committee on Government Lawyers
December 2002 VOL. 4, NO. 3
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Our first CLE program--A rave review
* Secret agendas and the Illinois Open Meetings Act
* Attorney General issues opinions
* "Taking the Fifth" at an administrative hearing
By Charles Gunnarson, Springfield
Earlier this year, the ISBA's Standing Committee on Government Lawyers (CGL) invited government attorneys to respond to a brief survey concerning bar association membership issues. The survey's results indicate that the CGL's constituency includes government lawyers practicing at the federal, state and local levels, as well as private practitioners with a substantial percentage of governmental clients. The reasons why government lawyers choose to join (or not join) a bar association are as varied as their places of employment. By identifying some of the more common reasons, however, the CGL and the ISBA hope to make the ISBA a more meaningful organization for those who are already members, and a more attractive association for those government lawyers who have not chosen, thus far, to take advantage of ISBA membership.
According to the results from the survey, government lawyers most frequently use the Illinois Bar Journal, the ISBA Bar News and the various committee/section council newsletters. Additionally, about half of the respondents take advantage of ISBA-sponsored continuing legal education (CLE) programs and the ISBA's Annual and Mid-Year meetings. Not surprisingly, the ISBA's publications and CLE programs are some of the strongest reasons those responding joined and remain members of the ISBA.
Although the ISBA's publications and CLE programs provide the most useful resources for government lawyers in their practices, the ISBA's services programs were not viewed as favorably (i.e., reduced rates on office supplies, insurance, etc., which are usually provided by government employers were not highly ranked). When I talk to non-ISBA government attorneys, their usual response to why they are not ISBA members is that they do not feel they receive value for their dues. The CGL will continue to work with the ISBA to respond appropriately to our constituency's concerns.
The CGL has taken the first step with regard to providing more value to government lawyers through the sponsorship of CLE programs designed more specifically for government lawyers. On September 19, 2002, the CGL presented, in conjunction with the ABA, its first CLE program, "Ethical Considerations in Public Sector Law," at the ISBA's Chicago Regional office (please see the article on the program inside). Through this type of government lawyer-specific seminar, the CGL and the ISBA are trying to provide more direct benefits to public sector attorneys.
The CGL is also working to develop other ideas for CLE programs, services and benefits more closely tailored to the needs of public sector practitioners. However, as always, we welcome comments from our constituency regarding services and benefits they would like to see offered by the ISBA. There may be some excellent ideas that CGL has yet to explore, and we would appreciate hearing from our colleagues on this issue. If you have any suggestions, please email me at: <charles.gunnarson@epa.state.il.us>.
Our first CLE program--A rave review
By Rosalyn B. Kaplan, Chicago
On September 19, 2002, the Standing Committee on Government Lawyers sponsored, in conjunction with the ABA's Government & Public Sector Lawyers Division, a continuing legal education program produced by and for government lawyers. Entitled "Ethical Considerations in Public Sector Law," the program consisted of five (very well-acted) scenarios depicting some of the ethical issues that are confronted by public sector attorneys, with each skit followed by a discussion of the ethical dilemma(s) posed and the Rules of Professional Conduct implicated in the conduct of government workers such as "Paul Politico," "Wanda Worcsalot," "Mark DeCode," and "Sam Gumshoe." These roles, and other equally challenging parts, were energetically portrayed by our own Chuck Gunnarson, Kate Kelly, Paul Logli, and Lynn Patton, with the help of two program veterans from the ABA. The ensuing discussions were led by Jim Grogan, Chief Counsel of the ARDC, who prompted the players as well as the audience to explore the ethical problems posed when, for example, a supervisor is more focused on the political realities than the legal arguments raised by a staff attorney.
Recognizing the time constraints and budget realities of the public sector bar, the ISBA offered the program as a "brown bag," extended lunch-hour presentation, at a rate substantially lower than that charged for other CLE programs. Our efforts were rewarded with a turnout of more than 65 government lawyers for this Chicago presentation--a level of interest that may give us the opportunity to plan an encore performance downstate (unless, of course, Broadway beckons). We would love to hear your suggestions for future programs that would be of particular interest to you as a lawyer in government service. Please pass your suggestions along to anyone on our committee.
The Standing Committee on Government Lawyers is again hosting a reception as part of the ISBA's Mid-Year Meeting Activities. The reception, entitled "Pride in Our Profession: The ISBA Salutes Government Attorneys," is intended to recognize the efforts of, and to provide a networking opportunity for, those attorneys who maintain a government practice. The reception will be held on Wednesday, December 11, 2002, from 4:30 p.m. to 6:30 p.m. at the ISBA's Chicago Regional Office, 20 South Clark Street, Suite 900.
Last year more than 100 government attorneys were in attendance, including: Hon. Marvin Aspen, Chief Judge of the Northern District of Illinois; Carole A. Doris, Chief Deputy Attorney General for Illinois; Mary Robinson, Administrator of the Attorney Registration & Disciplinary Commission; Dick Devine, Cook County State's Attorney; John Piland, Champaign County State's Attorney; and Jim Reilly, Director of the Department of Administrative Hearings for the City of Chicago.
If you are employed by an office, agency or unit of federal, state or local government or if you spend a substantial portion of your private practice representing governmental entities, please join us for refreshments and socializing with your fellow governmental practitioners as the ISBA salutes our efforts by honoring this important part of the profession. For further information, contact Janet Sosin in the ISBA's Chicago Regional Office at 312/726-8775.
Secret agendas and the Illinois Open Meetings Act*
By Mark E. Wojcik, Associate Professor of Law, The John Marshall Law School
The Illinois Open Meetings Act is designed to give citizens advance notice of all meetings at which any business of a public body is discussed or acted upon in any way. Notices made under the Act should advise the public not only of the date and location of a meeting, but also about the substantive matters that the public body will discuss. The Open Meetings Act thus reflects a public policy expressed by the Illinois General Assembly that state public bodies exist to assist citizens, and that citizens have a right to be informed about what the public bodies are doing. The Illinois Open Meetings Act is thus intended "to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1.
Among other things, the Act requires public bodies to post an agenda for each regular meeting at least 48 hours in advance of the meeting. 5 ILCS 120/2.02(a). This requirement is obviously meant to inform the public about matters that will be discussed at the meeting. One body ran afoul of this rule by hiding (in the "new business" portion of the posted agenda) a new pension benefit for elected county officers. A court challenge followed, and the trial and appellate courts found that such an important matter should have been previously disclosed in the posted agenda.
The Open Meetings Act was broadly enforced in a recent Illinois appellate court decision that affirmed the grant of summary judgment against members of a county board who had approved a new pension benefit for elected county officials. The Board of Trustees of Adams County, Illinois had posted an agenda for a meeting on November 10, 1998. There were 34 items on the agenda, 25 of which appeared to be reports from various individuals. Agenda item number 32 referred to "new business." The agenda was similar to those used in earlier meetings of the County Board.
During the "new business" portion of that Adams County Board meeting, the Board of Trustees considered and passed a resolution providing for an alternative benefit program for elected county officials, pursuant to the Illinois Pension Code. The pension benefit had not been specifically listed under the "new business" item of the agenda.
Although the Open Meetings Act requires an agenda to be posted 48 hours before a public meeting, the Act also provides that "a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda." 5 ILCS 120/2.02(a). Such a provision is likely a necessary one for public bodies, which must sometimes react to developments that happen within 48 hours of a meeting (after the agenda has been posted).
The Fourth District of the Illinois appellate court found that the term "consideration" used in section 2.02(a) should be construed not as taking action on a matter, but merely as deliberating and discussing items that were not specifically listed in the agenda. This, indeed, would appear to be a plain-language reading of the word "consideration"--it requires only that the body consider something, and not necessarily reach a decision. Using this reading of the statute, the Illinois appellate court found that the "new business" item did not provide sufficient advance notice to the public of a resolution for alternative pension benefits for elected officials. Rice v. Board of Trustees of Adams County, 326 Ill. App. 3d 1120, 762 N.E.2d 1205 (Ill. App. 4th Dist. 2002).
The court's interpretation of "consideration" to mean "deliberation and discussion" may be seen to be a narrow interpretation of the statutory language, at least if that interpretation would work to preclude a body from reaching a decision on a matter that was being discussed. It would seem odd to have a public body discuss an issue, reach agreement in principle about what course of action to take, and then refrain from taking that course of action. Particularly in a social climate where public bodies may be called upon to respond quickly to new developments, and where the public itself is demanding decisive action from its elected officials, there is fear that such a narrow reading of the statute might unnecessarily constrain the public body. On the other hand, it may also often be more prudent for a public body to postpone a decision on a matter until its next meeting.
The court's interpretation of the Open Meetings Act reflects the legislative purpose intended by the Illinois General Assembly, namely that people have sufficient advance notice of the substance of the business of government. This was not a situation where the county board had not posted an agenda at all, or in an untimely fashion. The issue here was simply that it included too much in the section for "new business."
Having sufficient notice is an important right belonging to the people of the state. It is also important for the government bodies themselves--when government bodies reach their decisions after considering public comments on proposal, then the decision reached is more likely to be fully informed and a better decision for everyone involved. Informing the public ahead of time on the substance of matters to be discussed may also make it easier to later enforce rules that may be adopted at that meeting.
The court could, of course, have found a broader reading of the statute had the issue before the county board involved a matter of public safety and security. Recent events reinforce the serious nature of governmental business on so many different levels. But the issue before the Adams County Board did not involve a national or international emergency; it involved new pension benefits for elected county officials. This improved pension benefit is the type of item that can--and should--be disclosed in the public agenda posted 48 hours in advance of the meeting.
What, then, are the lessons to be learned? Lawyers advising public bodies who are covered by the Open Meetings Act should advise those bodies to disclose fully all items that may be brought up as "new business." And lawyers advising citizens groups or particular individuals may find an unexpected route to challenge particular laws that may have been adopted without prior disclosure under the Open Meetings Act.
These lessons may be painful ones at the beginning, but the goal is to create a culture of full disclosure for all items that a public body will consider. Perhaps this goal will need to be recreated after each election cycle. But full disclosure of the business of government will protect the rights of individuals to have that information while also leading to better governmental decisions. The public will not tolerate secret government agendas that violate the statutory rights of citizens to know the business of government in its open meetings.
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* This article was first published in the ISBA's Constitutional Law & Liberty newsletter, April 2002, Vol. 28, No.2, and is reprinted with permission.
Attorney General issues opinions
By Lee Ann Schoeffel, Springfield
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2000)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 02-008 through 02-010 and informal opinions I-02-037 through I-02-047 that may be of interest to the government bar. (See, "Attorney General issues opinions" ISBA Standing Committee on Government Lawyers newsletter, August 2002, Vol. 4, No. 1, for a summary official opinions 02-006 through 02-007 and informal opinions I-02-012 through I-02-036).
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield office at (217) 782-9070. Copies official opinions may also be found on the Internet at <http://www.ag.state.il. us/opinions/opinions.html>.
Opinion No. 02-008, issued August 15, 2002: Filling a vacancy in a newly created position on the Teachers' Retirement System Board. Because Public Act 91-941, effective February 6, 2001, which created a second annuitant position on the Teachers' Retirement System Board, became effective after the last date upon which nominating petitions could have been filed for an election held on May 1, 2001, as provided by statute, and because no alternative or special election provisions are provided in the Public Act or in the Pension Code, a vacancy existed in the newly created office for the four-year term beginning July 15, 2001, and the board properly filled the vacancy by appointing a qualified person to the vacant position for the term ending July 15, 2005. 40 ILCS 5/16-165 (West 2000).
Opinion No. 02-009, issued August 28, 2002: State Board of Elections' voter registration database not exempt from disclosure under Freedom of Information Act. Subsection 7(1)(a) of the Freedom of Information Act exempts from inspection and copying public records that are "specifically prohibited from disclosure by Federal or State law * * *." The State Board of Elections' voter registration database is not specifically prohibited from disclosure under either Federal or State law. Therefore, the voter registration database is not exempt from disclosure under subsection 7(1)(a) of the Freedom of Information Act. 5 ILCS 140/7(1)(a) (West 2001 Supp.), as amended by Public Acts 92-0645, effective July 7, 2002 and 92-0651, effective July 7, 2002.
Opinion No. 02-010, issued September 4, 2002: Issuance of a driver's license to a foreign citizen ineligible for a social security number. Section 6-106 of the Illinois Vehicle Code authorizes the Secretary of State to issue a driver's license to a foreign citizen using a Federal tax number, in lieu of a social security number: (1) where an applicant is prohibited by bona fide religious convictions from applying for a social security number; or (2) where an applicant is "exempt" from applying for a social security number. The Social Security Act contains no exemptions from applying for social security numbers. Therefore, the General Assembly intended to authorize the Secretary of State to issue a driver's license to a foreign citizen who is ineligible for a social security number under federal law, and to use a federal tax number or other distinctive number in lieu thereof. 625 ILCS 5/6-106 (West 2000), as amended by Public Act 92-117, effective January 1, 2002; 42 U.S.C. ' 405.
Informal Opinion No. I-02-038, issued June 28, 2002: Representation and indemnification of members of metropolitan enforcement groups. Members of a Metropolitan Area Narcotics Squad who have been appointed as inspectors by the Director of the Department of State Police are considered "state employees" for purposes of representation and indemnification pursuant to the State Employee Indemnification Act. 5 ILCS 350/1 (West 2000).
Informal Opinion No. I-02-039, issued July 12, 2002: Authority to set salaries for assistant state's attorneys. The county board is without authority to require that the state's attorney set salaries for his or her assistants within specific ranges established by the board. Likewise, the board is without authority to set salaries for assistant state's attorneys by separate line items in the annual budget. 55 ILCS 5/3-9006, 4-2003 (West 2000).
Informal Opinion No. I-02-043, issued August 14, 2002: Circuit clerk's preparation of orders pursuant to general order of chief judge. Section 1 of the Circuit Court Clerk Regulation Act prohibits a circuit court clerk or deputy clerk from preparing or drafting any document which is to be filed or recorded in the court in which he or she is clerk or deputy clerk, except such documents as such clerks are "by law required" to draft or prepare. A general order by the chief judge of the circuit court directing the clerk to prepare specific orders would be considered "by law required." Therefore, a circuit clerk and his or her deputies would not be prohibited by section 1 of the Circuit Court Clerk Regulation Act from preparing orders for a judge's signature pursuant to a validly entered general order of the chief judge of the circuit court. 705 ILCS 110/1 (West 2000).
Informal Opinion No. I-02-045, issued September 18, 2002: Application of the University Credit and Retail Sales Act to community college districts. Section 1 of the University Credit and Retail Sales Act indicates that its provisions extend to "state universities of higher learning." A community college district does not constitute a "state institution of higher learning," but rather is a unit of local government. Consequently, a community college district is not subject to the provisions of the University Credit and Retail Sales Act. 110 ILCS 115/1 (West 2000).
Informal Opinion No. I-02-046, issued September 18, 2002: County board member or spouse employed by county officer. The employment of a county board member by a county officer will violate section 3 of the Public Officer Prohibited Activities Act, unless it meets one of the de minimus exceptions in the statute. A marital relationship between a county board member and an employee of a county officer or between a county board member and a county officer does not create a per se violation of section 3 of that Act. 50 ILCS 105/3 (West 2000).
Informal Opinion No. I-02-047, issued September 23, 2002: Transfer of property from Forest Preserve District to a Community College District. A forest preserve district may transfer to a community college district, upon such terms as the corporate authorities of each unit of local government may agree, property obtained by the forest preserve district by condemnation. 50 ILCS 605/2 (West 2000).
"Taking the Fifth" at an administrative hearing*
By Rosalyn B. Kaplan
During contested cases before administrative tribunals, it sometimes happens that a witness refuses to testify on the ground that his answer might tend to incriminate him. Although everyone recognizes that a decision in a criminal case is not to be influenced by a defendant's exercise of his Fifth Amendment right, case law teaches that a civil or administrative tribunal may legitimately draw a negative inference from an individual's invocation of his right to remain silent. While a negative inference, standing alone, may not be a sufficient basis on which to rest a decision, the following cases demonstrate that a witness' silence can have a significant influence on the final determination of a fact-finder, whether or not the witness is a party to the proceeding.
In Baxter v. Palmigiano, 425 U.S. 308 (1976), where a state prison disciplinary board had drawn a negative inference from an inmate's silence at a disciplinary hearing, the Supreme Court recognized that a decision-maker could consider the evidentiary significance of a party's choice to remain silent in a non-criminal forum. Citing 8 J. Wigmore,