SB 1648--Amends the Procurement Code. Sets forth procedures for the award of contracts for construction management services and requires State agencies to provide public notice of all projects requiring construction management services.
SB 1872--Creates the Whistleblower Act. Provides that an employer may not: (1) make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation; (2) retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation; or (3) retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation.
The following is a list of bills that may be of general interest to government attorneys that did not make it out of committee by the deadline and therefore are considered dead for this session:
HB 0038--Former State Worker Business Restrictions
HB 0049--State Worker Contract Ban
HB 2218--Defrauding the State
HB 2258--Governmental Account Audit, Fund Financial Statements
HB 2643--State Leases/Payment Reductions
HB 2766--Procurement/Property Lease Options
HB 2767--Procurement/Capital Projects
HB 2768--Procurement/Notification of Changes
HB 2917--End of Term Employment
HB 3046--State Worker Political Work Procedures
HB 3328--Public Officer Misconduct
HB 3617--Administrative Procedure Rules Adoption
HB 3696--Public Officer Misconduct Prosecution
HB 3697--Government Ethics Pledge
SB 1489--Legally Due Taxes Lawsuits
SB 1520--Joint Committee on Administrative Rules Votes
SB 1871--State Officials, Employees B Ethics
SB 1875--Procurement Code, Contract Interests
SB 1885--Attorney General/Office of Civil Rights
SB 2001--Government Ethics/Interests Reporting
Are Illinois counties required to pay a judgment entered against a sheriff in his official capacity?
By Jaime Rose*
The Illinois Supreme Court recently answered yes to this question in Carver v. Sheriff of LaSalle County, 203 Ill. 2d 497 (2003).
Carver involved a suit in federal court by former employees of the LaSalle County sheriff's department against "Anthony M. Condie, Sheriff" in his official capacity as Sheriff of LaSalle County. The first complaint filed on April 14, 1994 named as defendants both LaSalle County and Anthony Condie. On June 17, 1994, the United States District Court for the Northern District of Illinois granted a motion to dismiss filed by LaSalle County. On August 2, 1994, plaintiffs' amended complaint named only Anthony Condie in his official capacity and alleged that he engaged in sexual harassment, sex discrimination, deprivation of equal protection, and retaliation, in violation of title VII of the Civil Rights Act of 1964.
Shortly before trial, Anthony Condie entered into a consent decree with the plaintiffs in his official capacity for $500,000. The plaintiffs then sought to enforce the consent decree against LaSalle County, claiming that LaSalle County held funds appropriated by law for use by the LaSalle County Sheriff. LaSalle County argued that the consent decree was void because Sheriff Condie possessed no authority to enter into the decree and to determine how county monies would be expended.
Eventually, the Seventh Circuit certified this question to the Illinois Supreme Court, "Whether, and if so when, Illinois law requires counties to pay judgments entered against a sheriff's office in an official capacity. If the Supreme Court of Illinois believes that the answer depends on whether the case was settled as opposed to litigated, we would welcome treatment of that distinction as well."
There are two provisions of Illinois law that may be determinative of this question. First, section 5-1002 of the Counties Code sets out the duty of a county board to indemnify a sheriff or deputy for lawsuits stemming from their duties. 55 ILCS 5/5-1002 (West 2000). Secondly, section 9-102 of the Local Governmental and Governmental Employees Tort Immunity Act empowers local public entities to pay any judgment or settlement for a lawsuit against an officer acting within the scope of his or her employment. 745 ILCS 10/9-102 (West 2000).
At the outset, the court noted that section 5-1002 of the Counties Code only applies to lawsuits against the sheriff in his or her personal capacity because it specifically states it applies to "any judgment against him or her." Here, the judgment was entered against the sheriff in his official capacity. Therefore, the court found that section 5-1002 of the Counties Code does not apply.
The court then turned its attention to the question of whether a county must pay for official capacity judgments under section 9-102 of the Tort Immunity Act. Section 9-102 provides that "[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article... A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise."
The court began its analysis with the definition of the phrase "local public entity." Does a county sheriff qualify as a "local public entity" within the Tort Immunity Act? Section 1-206 of the Act defines "local public entity" with an inclusive listing of "county, township, municipality, ... school district, ... and all other local governmental bodies." 745 ILCS 10/1-206 (West 2000). The list does not expressly list a "county sheriff" as an example of a "local public entity." However, previously, the court had observed that the term "local public entity" is "broadly defined." Boyles v. Greater Peoria Mass Transit District, 113 Ill. 2d 545, 553 (1986). Furthermore, Illinois courts have deemed governmental bodies not found in the listing of section 1-206 to be "local public entities" under the catch-all phrase "all other governmental bodies." Thus, the court's analysis of the language of the statute allows for a sheriff to be a "local public entity" even though "sheriff" is not included in the list of section 1-206.
The court then examined the powers and duties of the sheriff's office as set out by the Illinois Constitution of 1970 and several sections of the Counties Code. Ill. Const. 1970, art. VII, '4(c); 55 ILCS 5/3-6001, 6008, 6017, 6021, 6035 (West 2000). From these provisions, the court concluded that the county sheriff is an independently elected official, who performs functions essential to the operation of government, and whose office is funded by public funds. Thus, the county sheriff falls under "all other governmental bodies" and is a "local public entity" within the meaning of the Tort Immunity Act.
Section 9-102 of the Tort Immunity Act provides that a local public entity may make payments to settle a claim filed against that public entity when a "person vested by law or ordinance with authority to make over all policy decisions for such entity considers it advisable to enter into such a settlement or compromise." (Emphasis added). It follows that the county sheriff has the authority and power to settle litigation filed against the sheriff's office and direct the office to pay that settlement. Also, since the language specifies "settlement or compromise," it expresses the legislature's intent that this statutory provision applies to both judgments and settlements. It is with this section of the Act that the court disposes of the argument that the Tort Immunity Act does not give a sheriff the authority to enter into a settlement.
After the court held that a county sheriff has the authority to make and pay settlements, it examined the mechanism for funding the payment of such settlements. The problem arises because the sheriff lacks the authority to levy taxes or to establish a budget unilaterally. Statutorily, the county board finances the sheriff's office with public funds, by levying taxes for the operation of the county and its offices and appropriating money thereto. 55 ILCS 5/4-6003, 5-1106 (West 2000). The court concluded from this statutory scheme that the county is also obligated to provide funds to the county sheriff to pay judgments entered against the sheriff in his or her official capacity. To support this conclusion, the court reasoned that it would be absurd to give a sheriff the authority to settle a claim but no means to pay for the settlement. Since the Illinois General Assembly surely would not want such an absurd result, the court concluded that the county board must finance such settlements.
The issue of requiring counties to pay for sheriff settlements is especially important because it exposes a county to expanded liability. The county sheriff is an independent elected official and is not an employee of the county. Sheriffs answer to the electorate of the county from which they are elected, and not to the county board. Thus, does the county board have any means to protect its financial interests? At first glance, one might think no. However, Carver briefly mentioned two situations where an official capacity settlement would be invalid. Slip op. at 12. First, for Carver to apply, counties must have knowledge of a lawsuit before it is settled. With knowledge of the lawsuit, counties have an opportunity to participate and protect their interests. "We note that we express no opinion with respect to the validity of a settlement agreement stemming from a lawsuit of which a county had no notice." Slip op. at 12. Second, for a settlement to be valid, the sheriff must comply with statutory provisions in section 9-102 of the Tort Immunity governing the settlement official capacity claims.
Justice Kilbride dissented, finding these safeguards inadequate. Slip op. at 14. By taking official capacity lawsuits out of the statutory authority of the section 5-1002 of the Counties Code, the majority also removed the safeguards of section 5-1002. These safeguards are a cap of $500,000 on liability, specific notice requirements, authority of the county to intervene and defend, the action and an exemption for misconduct. While the majority does limit its opinion to cases where the county had notice, there is no statutory authority under the Tort Immunity Act that requires such notice. Justice Kilbride articulates another interpretation of section 5-1002 of the Counties Code. Section 5-1002 applies to both official and personal capacity lawsuits since it clearly states that it applies to "any judgment." Thus, the majority fails to rely on the statutory provision that is plainly on point.
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* Jamie Rose is a first-year law student at the Southern Illinois University School of Law.
Executive order regarding consolidation of legal services
In an effort touted to streamline state government and improve efficiency, Governor Rod R. Blagojevich on March 31, 2003, signed Executive Order Number 10 (2003). Through this order, Governor Blagojevich proposes to consolidate and transfer internal auditing, legal services, and facilities management of all agencies under the Governor to the Department of Central Management Services. Legal functions specific to each particular agency will remain at that agency. Adjudicatory legal staff may also remain with an agency. However, common functions related to personnel, procurement, bond financing and many other issues will be consolidated. The Blagojevich Administration expects an initial costs savings of $5.4 million by consolidating legal work common to all agencies and expects: (1) higher quality legal work as attorneys are able to specialize; (2) decreased litigation; and (3) less costly legal contracts with outside counsel. The executive order will become effective on the 61st day after its delivery to the General Assembly. A copy of Executive Order Number 10 (2003) can be found on the state's Web site at <www.illinois.gov/gov/execorders.cfm>.
Executive order regarding ethical standards for state employees
On January 23, 2003, Governor Rod R. Blagojevich adopted a series of measures to impose stricter ethical standards on state employees. These measurers were adopted through the signing of three executive orders. Through Executive Order Number 3 (2003), the Governor created the Office of Inspector General to investigate complaints regarding alleged violations of law, corruption or other forms of misconduct. In addition to creating the Office of Inspector General, the executive order directs the Inspector General to establish and maintain a toll-free "Ethics Hotline" that the public may use to report instances of public corruption and misconduct. Executive Order Number 4 (2003) establishes greater protection to state employees who report instances of corruption or other unethical behavior. It also allows for action to be taken against anyone who retaliates against an employee who reports misconduct. Finally, Executive Order Number 5 (2003) mandates an ethics-training program for all state employees. The purpose and intent of this executive order is to educate state employees as to their ethical duties and responsibilities and to address ethical issues that face state employees in the discharge of their duties. The General Counsel for the Governor will develop the training program. Copies of Executive Orders 3, 4, and 5 (2003) can be found on the state's Web site at <www.illinois.gov/gov/execorders.cfm>.
Administrative law judge continuing legal education program
The Illinois Association of Administrative Law Judges (IAALJ) is the host affiliate for the National Association of Administrative Law Judges mid-year educational program to be held in Chicago on May 29-31, 2003, at the Illinois State Bar Association Regional Office, 20 South Clark. The title of the program is "Administrative Law Judges and Agencies: Working to Enhance Public Confidence in Administrative Adjudication."
This two-and-a-half-day program will focus on writing decisions and the relationship between Administrative Law Judges (ALJ) and agencies. The faculty will be comprised of law school professors, judges and justices, ALJs, Chief ALJs, attorneys, and agency general counsels and administrators. Judges and justices who hear appeals of ALJs' decisions will provide their insight, along with other faculty, to assist ALJs in writing a decision that will enhance the public's confidence that it has been afforded justice by an impartial decision maker. Panels and round table discussions will provide for an exchange between the ALJs and agency representatives to identify ways of working together to ensure public trust in the administrative judiciary. Contact Ann Breen-Greco (President, IAALJ) 773/539--3292; e-mail: annrun@aol.com or Erika LaCerda (Vice-President, IAALJ) 773/814-5498 for more information.
By Lee Ann Schoeffel, Springfield
Administrative law
South 51 Development Corp. v. Vega, No. 1-01-3251, 1-01-3255, 1-01-3260 cons. (1st District, November 26, 2002). Amendment to the Consumer Installment Loan Act (205 ILCS 670/1 et seq. (West 2000)), authorizing the Illinois Department of Financial Institutions to enact rules "that are necessary and appropriate for the protection of consumers," in response to a report identifying problems with short-term lending practices, was neither impermissibly vague nor improper delegation by the General Assembly. In addition, rules were promulgated in compliance with the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2000)) and not in derogation of the dictates of the legislature despite containing language substantially identical to that in a bill that the General Assembly failed to pass.
Prairie Rivers Network v. Illinois Pollution Control Board, No. 4-01-0801 (4th District, October 24, 2002). The Illinois Pollution Control Board properly imposed burden of proof on third-party appellant to demonstrate that the National Pollutant Discharge Elimination System (NPDES) permit, as issued, violated Illinois or federal law. Further, there is no requirement under the Federal Clean Water Act (33 U.S.C. '1342(b) (2000)) or under the Illinois NPDES rules that a drastically altered permit be resubmitted to public hearing and comment after amendment or a prohibition against considering material submitted by an applicant after public comment period. Therefore, the appeal of the grant of a NPDES permit was properly denied.
Wilson v. State Employees' Retirement System, No. 1-02-0083 (1st District, December 20, 2002). Trial court was required to dismiss review of administrative determination by the Board of Trustees of the State Employees' Retirement System (SERS) to deny appeal from decision of the Executive Committee of SERS with regard to overpayment to plaintiff because plaintiff named SERS and Executive Committee of SERS as defendants but failed to name Board of Trustees of SERS as defendant. Because the Board of Trustees of SERS is the body that rendered the final administrative decision, the Board must be named to satisfy the provisions of section 3-107 of the Administrative Review Law (735 ILCS 5/3-107 (West 1998)). Further, failure to raise issue prior to court's decision to reverse administrative order does not waive it.
Blumhorst v. Illinois Department of Employment Security, No. 4-02-0038 (4th District, December 12, 2002). Because the record contains no evidence that plaintiff took action to request summons be served by circuit clerk within 35 days of issuance of final administrative decision denying him unemployment compensation benefits, trial court erred when it denied defendants' motion to dismiss asserting a violation of section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 2000)).
Cisneros v. White, No. 1-01-1254 (1st District, January 24, 2003). Although trial court correctly noted errors in findings of secretary of state's administrative law judge with regards to hardship that was imposed on applicant for restrictive driving permit by revocation of his driver's license, applicant's driving record (he was caught driving with no license or with revoked license) prevents him from proving that administrative law judge's conclusion that he failed to demonstrate that he was not a risk to public safety is against the manifest weight of the evidence.
Civil procedure
People v. Allen, No. 2-01-0977 (2nd District, February 4, 2003). After defendant was involved in an automobile collision in Illinois and transported to Iowa for treatment, the trial court erred by applying Iowa's physician-patient privilege to exclude results of blood alcohol test in DUI trial. As the forum state, with insufficient "special reason" to exclude results, Illinois exception to privilege found in 625 ILCS 5/11-501.4 (West 2000)) should have been applied.
Constitutional law
People v. Law, No. 93389 (December 5, 2002). Because section 6-16(c) of the Liquor Control Act of 1934 (235 ILCS 5/6-16 (c) (West 2000)), creating a misdemeanor offense of resident allowing a person under 21 to leave the residence after consuming alcohol, is unconstitutionally vague on its face, the trial court properly dismissed complaint against defendant.
People v. Carrera, No. 91465 (December 19, 2002). Appellate court correctly reversed trial court's denial of motion to suppress evidence seized by Chicago police officers outside of city limits pursuant to section 7-4-8 of the Illinois Municipal Code (65 ILCS 5/7-4-8 (West 1996)), which was later determined to be unconstitutional.
People v. Morgan, No. 90891 (January 24, 2003). Because the sentencing range for attempted murder after the enactment of Public Act 91-404 (15-20-25 to life sentencing) is greater than that for second-degree murder, because a defendant charged with attempted murder is not allowed to present evidence of mitigating circumstances available for defendant charged with second- degree murder, and because attempted second-degree murder has been deemed to be a logical impossibility, the attempt statute found in section 8-4 of the Criminal Code of 1961 (720 ILCS 5/8-4 (West 2000)), as amended by Public Act 91-404, violates the proportionate penalties clause of article II, section 11 of the Illinois Constitution of 1970. Therefore, the trial court was correct to dismiss charges against defendant for attempted murder.
People v. Pomykala, No. 93089 (January 24, 2003). Appellate court correctly concluded that section 9-3(b) of the Criminal Code of 1961 (720 ILCS 5/9-3(b) (West 2000)) is unconstitutional because it imposes a mandatory presumption on jury when deliberating reckless homicide case to find defendant guilty of recklessness if his blood alcohol exceeds legal limit. Case must be remanded for new trial without instruction containing presumption.
Friends of the Parks v. Chicago Park District, No. 93852 (February 21, 2003). Because section 3 of the Illinois Sports Facility Authority Act (70 ILCS 3205/3 (West 2000)), enabling the renovation of Soldier Field, violates neither the public purpose doctrine nor the public trust doctrine and because the enrolled-bill doctrine precludes court enforcement of the three-readings requirement for certified legislation, trial court's entry of summary judgment in favor of respondent in complaint challenging renovation project was correct.
Criminal law
Criminal counsel
People v. Harris, No. 88468 (December 19, 2002). Although trial court properly dismissed defendant's claim of ineffective assistance of counsel without evidentiary hearing pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)), affidavits attached to defendant's petition do establish potential Brady violation by virtue of the state's failure to disclose information that key witness in death penalty portion of hearing may have committed perjury.
People v. Johnson, No. 89910 (December 19, 2002). Trial court's decision to summarily dismiss defendant's claims of post-conviction petition is reviewed de novo. Defendant's petition failed to establish either bona fide doubt as to fitness to stand trial or ineffective assistance of counsel, the affidavits in support thereof being cumulative of trial testimony.
People v. Sparks, No. 2-01-0247 (2nd District, November 27, 2002). In trial for selling controlled substance within 1,000 feet of church, defendant's counsel was not ineffective by failing to raise foundation objections to the introduction of a measurement tool known as a "Light Detection and Ranging Device" used to measure distance between his sale of controlled substance and entrance to Salvation Army chapel. Further, measurement is to be made along straight line and not as one would walk. In addition, Salvation Army chapel qualifies as "church" within definition of statute because primary purpose is for religious worship.