Conclusion. The Board's new procedural rule on attorney representation and its decision in Recycle Technologies advance the policies of protecting parties and Board adjudications from the unauthorized practice of law. That is not to say that there are no competing policy arguments for allowing non-attorneys to represent others in at least some types of contested cases before the Board. However, practically speaking, any move in that direction would probably require action by the Illinois Supreme Court or General Assembly. Suffice it to say that administrative agencies should be proactive on the issue of non-attorney representationCassess their caseloads and ensure that persons practicing law on behalf of others are licensed attorneys.
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*This article was first published in the ISBA's Administrative Law newsletter, April 2002, Vol. 31, No.5, and is reprinted with permission.
Attorney General issues opinions
By Lynn Patton, 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 02-006 through 02-007 and informal opinions I-02-0012 through I-02-036 that may be of interest to the government bar. (See, "Attorney General issues opinions" ISBA Standing Committee on Government Lawyers newsletter, June 2002, Vol. 3, No. 4, for a summary official opinions 02-001 through 02-005 and informal opinions I-02-001 through I-02-011).
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/>.
Opinion No. 02-006, issued May 7, 2002: certification of new enterprise zones. The language of subsection 5.3(d) of the Illinois Enterprise Zone Act expressly authorizes the Department of Commerce and Community Affairs to certify enterprise zones "in each of the 10 calendar years commencing with 1983." Thereafter, subsection 5.3(d) provides that "the Department may not certify any additional Enterprise Zones." Since the 10 calendar years commencing in 1983 have passed, the Department is not currently authorized to certify new enterprise zones. 20 ILCS 655/5.3(d) (West 2000).
Opinion No. 02-007, issued May 7, 2002: circuit clerk's collection of service fees from persons tendering payment by credit card. (1) Section 27.3b of the Clerks of Courts Act requires the clerks of the circuit courts to impose and to collect a service fee from those persons paying fees, fines and costs by credit card. To the extent that MasterCard® continued to accept sales and credit items from the DeKalb County Circuit Clerk, MasterCard® is deemed to have consented to the collection of the service fee. (2) To the extent that a merchant who has contracted with MasterCard® violates the provisions of its contract with MasterCard®, MasterCard® is entitled to collect a fine under the contract. The assessment of a fine in the current circumstances, however, is not appropriate. 705 ILCS 105/27.3b (West 2000).
Informal Opinion No. I-02-012, issued April 2, 2002: administrative enforcement of seat belt ordinances. A "primary stop" seat belt use ordinance would be considered "a municipal regulation governing the condition or use of equipment on a vehicle," and a violation of such an ordinance would be classified as a "compliance violation" for purposes of section 11-208.3 of the Illinois Vehicle Code. Therefore, a "primary stop" seat belt use ordinance may be enforced administratively in accordance with that section. 625 ILCS 5/11-208.3, 12-0603.1 (West 2000).
Informal Opinion No. I-02-014, issued April 8, 2002: liability for late payment charges. Counties are liable for the payment of late fees on claims only to the extent permitted under the provisions of the Local Government Prompt Payment Act. A county board is without implied authority to require that county department heads, whether elected or appointed, be held personally responsible for any charges incurred due to late payment of a bill for county goods or services. 50 ILCS 505/6 (West 2000).
Informal Opinion No. I-02-016, issued April 16, 2002: applicability of the Freedom of Information Act to public utilities. Under the Freedom of Information Act, public bodies are required to make public records available for inspection or copying. The phrase "public bodies" does not include non-governmental entities such as public utility companies. Consequently, the Commonwealth Edison Company is not subject to the provisions of the Freedom of Information Act. 5 ILCS 140/2(a) (West 2000).
Informal Opinion No. I-02-018, issued April 16, 2002: recording of documents having digital signature. A county recorder has a duty to record any instrument that he or she receives that is entitled to be recorded, including those instruments having digital signatures executed in accordance with the Financial Institutions Digital Signature Act. The recorder is without authority to pass upon the validity of such instruments or signatures. 55 ILCS 5/3-5010 (West 2000); 205 ILCS 705/10 (West 2000).
Informal Opinion No. I-02-021, issued April 18, 2002: reporting of convictions to secretary of state. It is not necessary, based upon due process principles, that a defendant be informed that his or her entry of a guilty plea for felony Illinois Vehicle Code violations will be reported to the Secretary of State and may result in the revocation or suspension of driving privileges. Further, while the circuit clerk is required by statute to report convictions for violations of the Vehicle Code and certain other felonies to the Secretary of State, the State's Attorney is under no such obligation. The reporting of felony Vehicle Code violations and convictions by the State's Attorney to the Secretary of State for possible action under section 6-206 of the Vehicle Code is discretionary. 625 ILCS 5/6-204, 6-205, 6-206 (West 2000).
Informal Opinion No. I-02-025, issued May 1, 2002: state's attorney's representation of circuit clerk outside his county. Under subsection 3-9005(a)(4) of the Counties Code, a State's Attorney is under a duty to defend a county or State officer in an action or proceeding "within his county." Although circuit court clerks are now considered non-judicial officers in the judicial branch of State government, because clerks of the circuit court were considered county officers entitled to representation by the State's Attorney regardless of venue for over 100 years and because there is a nexus between the proceedings and the county, the clerks of the circuit courts should be considered county officers for purposes of subsection 3-9005(a)(4) of the Counties Code. Therefore, it is among the State's Attorney's duties to represent the clerk of the circuit court in a nonjudicial proceeding in an administrative tribunal in another county. 55 ILCS 5/3-9005 (West 2000).
By Marc Loro and Lynn Patton
The Legislation Subcommittee of the Committee on Government Lawyers (CGL) completed its third full legislative session in June. The Legislation Subcommittee interacts with the ISBA's Department of Legislative Affairs via e-mail to track the progress of proposed legislation and to suggest positions the ISBA may wish to take on pending bills.
The ISBA's Department of Legislative Affairs asked the CGL to review and comment on eleven bills, plus one Amendatory Veto message. Of the eleven bills sent to the CGL, an early position was taken to support two, to oppose one and to take no position on one. The remaining seven bills did not receive sufficient comment to formulate a position until late in the legislative session. The bills may be summarized as follows:
HB 3682 - Amends the Open Meetings Act to allow closed meetings to consider security procedures. CGL voted to take no position on this bill and its amendments. The bill was referred to the Senate Rules Committee on 4 April 2002 and remains there.
HB 3772 - Amends the State Lawsuit Immunity Act to allow current, former or prospective State workers who think their civil rights have been violated to file suit. Because of competing interests on the part of a number of CGL members which could not be reconciled (a number of members were both State employees, who would like to see their civil rights protected, and at the same time, they are also representatives of State agencies that might incur financial burdens by the passage of this legislation), the CGL voted to take no position on the bill and its amendments. The bill was re-referred to the Senate Rules Committee.
HB 3990 - Amends the Freedom of Information Act to specify that a public body's agreement settling litigation, other than litigation brought by a prisoner, is a public record but only as to the amount of funds collected or expended by the public body. The bill failed to meet the House's deadline for bills to be voted out of committee. As a result, the CGL voted to take no position on the bill. The bill was later re-referred to the House Rules Committee.
HB 4354 - Amends the Local Governmental & Governmental Employees Tort Immunity Act to require the indemnification of a worker for reasonable attorney fees incurred in defending a claim against an employee. The CGL was concerned about the fiscal implications of the passage of such a bill to units of local government and school districts, but none of the CGL members at the meeting where the legislation was discussed represent units of local government or work with the Local Governmental & Governmental Employees Tort Immunity Act. The Committee felt that the advisability of this bill was better addressed by the ISBA's Local Government Law Section Council. The bill was later amended to also address indemnification limits for local governmental employees. P.A. 92-810, effective 8/21/02.
HB 4411 - Amends the Open Meetings Act and the Freedom of Information Act with respect to homeland security. At the time of the CGL's review of this legislation, the bill had been amended to create the Security Information Protection Act as a shell bill. The CGL voted to take no position on the legislation until substantive language could be reviewed. The bill was referred to the Senate Rules Committee.
HB 4938 - Amends the State Records Act to provide that records created or coming under the authority of public officials are public property and may not be destroyed. The bill was later amended to allow the State Historian to appoint a representative to the State Records Commission and to restore a provision dealing with reports of impaired physicians. Since the ISBA's Legislative Committee has already voted to oppose this bill, the CGL took no position on the legislation. Amendatory veto, November 19, 2002.
SB 1706 - Amends the Freedom of Information Act to change the exemption from inspection and copying requirements from "computer graphic systems" to "computer geographic systems." The CGL voted to support the bill with the suggestion that a definition for the phrase "computer geographic system" be added. P.A. 92-0645, effective 7/11/02.
SB 1756 - Amends the Open Meetings Act to require a public body to post its agenda on its Web site at least 72 hours before meeting. The bill was later amended to change the posting requirement to 48 hours before the meeting and apply the web posting requirement to only those public bodies "whose staff maintains the Web site." The Committee agreed that the 48-hour posting requirement contained in Senate Amendment #1 was preferable to the 72 hour requirement found in the original bill. However, the Committee still had concerns with respect to the posting of all agenda and minutes on the Web site, as well as the uncertainty as to which version, the Web site or the hard copy, would constitute the official record. Therefore, the CGL voted to oppose the bill and Senate Amendment #1 as currently drafted. Governor vetoed, 8/2/02.
SB 2135 - Amends the State Library Act to require the provision of records from State agencies in an electronic format. The Committee remained unclear as to whether older records would need to be recreated in an electronic format if so requested by the State Librarian. The CGL voted to oppose the bill as currently drafted. P.A. 92-0617, effective 1/1/03.
SB 2313 - Amends the Compensation Review Act to prohibit public officials from receiving any increase in compensation based on a cost of living adjustment for the fiscal year beginning 7/01/02. The Committee voted to take no position on the bill. The bill was signed by the Governor on 28 June 2002. As Public Act 92-0607, the bill was effective June 28, 2002.
Listed below is a short summary of a number of pieces of legislation enacted by the 92nd General Assembly that may be of general interest to the government. (See, "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, April 2002, Vol. 3, No. 3, for a summary of Public Acts 92-178 through 92-521.)
Public Act 92-0522 - Amends the Township Code to allow a township to increase its property tax levy for a township fire department. Requires a township operating a fire department to provide as nearly adequate fire protection as is possible. Allows certain townships to adopt fire prevention codes and standards parallel to national standards. Requires townships providing fire protection services on the effective date of this amendatory Act to follow certain standards in the Fire Protection District Act. Effective February 8, 2002.
Public Act 92-0534 - Amends the Hospital District Law to provide that "assisted living units," "sheltered care facilities," and "ambulance facilities" are included in the definition of "facilities." Provides that the board of directors of a Hospital District, by public or private offer, may provide for the transfer, sale, lease, or other disposition of a public hospital and its facilities. Provides procedures for transferring, selling, leasing, or otherwise disposing of the public hospital and its facilities. Effective May 14, 2002.
Public Act 92-0538 - Appropriates moneys for the use of the State for State Fiscal Year 2003. Effective July 1, 2002.
Public Act 92-0539 - Amends the Township Code to provide that townships in counties with a population of 50,000 (instead of 500,000) or more may, by resolution, transfer from the road and bridge fund any balance no longer needed for road and bridge purposes to any other township fund or funds. For the period of one year, allows townships, by resolution, to transfer funds from the road and bridge fund to a township fund used for the purpose of the construction or maintenance of sewage or water treatment facilities. Effective January 1, 2003.
Public Act 92-0544 - Amends the School Code to provide that the Auditor General, instead of the State Board of Education, shall annually cause an audit to be made of the financial statements of all accounts, funds, and other moneys in the care, custody, or control of the regional superintendent of schools of each educational service region and of each educational service center (other than an educational service center serving the Chicago school district). Effective June 12, 2002.
Public Act 92-0548 - Amends the Forest Preserve Zoological Parks Act. Changes population requirements for allowing corporate authorities to establish zoological parks in counties with less than 3 million from forest preserve districts containing a population of 150,000 or more to forest preserve districts containing a population of 140,000 or more. Provides that the annual tax rate for a forest preserve district located in a county with a population in excess of 140,000, instead of 150,000, but less than 200,000 and that is contiguous to the Mississippi River shall not exceed .01 percent of the value of all taxable property in the district. Effective June 24, 2002.
Public Act 92-0549 - Amends the Public Funds Accounting Act. Authorizes the treasurer of any public or municipal corporation to use an electronic funds transfer as a method of disbursement. Effective June 24, 2002.
Public Act 92-0551 - Amends the Public Graveyards Act. Provides that townships may appropriate funds for maintenance of non-profit cemeteries, but not for religious or sectarian purposes. Effective January 1, 2003.
Public Act 92-0552 - Among other things, amends the Community Mental Health Act to authorize a community mental health board to enter into multiple-year contracts with respect to the provision of services and the employment of personnel. Removes a reference to the use of funds made available under the Federal, State and Local Fiscal Assistance Act of 1972. Replaces provisions concerning a board's power to acquire real property. Authorizes a board to organize a not-for-profit corporation for certain purposes. Effective June 24, 2002.
Public Act 92-0558 - Amends the Township Code. Provides that a township board, by ordinance, may decrease the maximum tax rate for the general assistance tax. If the board decreases the maximum tax rate by ordinance, then it may, at any time after the decrease, increase the maximum tax rate, by ordinance, to a rate less than or equal to the maximum tax rate immediately prior to the board's ordinance to decrease the rate. Effective June 24, 2002.
Public Act 92-0559 - Among other things, creates the Juvenile Drug Court Treatment Act. Permits the Chief Judge of a judicial circuit to establish a drug court program for minors including the format under which it operates. In judicial circuits that have such a program, a minor who has a substance abuse problem and who is subject to a delinquency proceeding may, with the consent of the prosecution and the minor and with the approval of the court, be admitted into a drug court program. Excludes from the program: (1) a minor charged with a crime of violence within the past 10 years, excluding incarceration time; (2) a minor who denies his or her use of or addiction to drugs; or (3) a minor who does not demonstrate a willingness to participate in a treatment program. Provides that the drug court program shall include a regimen of graduated requirements and rewards and sanctions, including but not limited to: fines, costs, restitution, public service employment, incarceration of up to 120 days, individual and group therapy, drug analysis testing, close monitoring by the court at a minimum of once every 30 days and supervision of progress, educational or vocational counseling as appropriate, and other requirements necessary to fulfill the drug court program. Provides for revocation and resentencing of the minor who violates the conditions of the program or who engages in criminal conduct rendering the minor unsuitable for the program, or who is not performing satisfactorily or who is not benefiting from education, treatment or rehabilitation. Effective January 1, 2003.
Public Act 92-0580 - Amends the School Code to provide that school districts are encouraged to create and use an emergency medical information form for bus drivers and emergency medical technicians for those students with special needs or medical conditions, to be filled out by the student's parent or guardian, with one copy on file at the school and another copy on the student's school bus in a secure location. Effective July 1, 2002.
Public Act 92-0582 - Amends the Public Funds Statement Publication Act to remove the requirement that the summary statement of operations to be filed with the public officers' annual statement must be "as excerpted from the annual financial report as filed with the appropriate State agency of the State of Illinois." Amends the Governmental Account Audit Act. Provides that the definition of "governmental unit" or "unit" does not include a drainage district that obtains approval for assessments and expenditures through the circuit court. Defines "report" to include both audit reports and reports filed instead of an audit report by a governmental unit "receiving revenue less than $850,000" (currently, "appropriating less than $200,000") during any fiscal year to which the reports relate. Changes references from "governmental unit appropriating less than $200,000" to "governmental unit receiving revenue of less than $850,000." Amends the Township Code regarding the independent audit of township accounts, changes references from "townships appropriating $200,000 or more" to "townships receiving revenue of $850,000 or more" and changes references from "townships appropriating less than $200,000" to "townships receiving revenue of less than $850,000." Effective July 1, 2002.
Public Act 92-0583 - Amends the Election Code and the Downstate Forest Preserve District Act to provide that in a forest preserve district that elects commissioners by district who are not also county board members, the president of the board of commissioners shall fill a vacancy in the office of commissioner by appointment within 60 days with the advice and consent of the other commissioners. Provides that vacancies in the office of such forest preserve president shall be filled by the forest preserve board of commissioners by appointing one of the commissioners to serve as president. Amends the Liquor Control Act of 1934. Authorizes the delivery and sale of alcoholic liquor on any golf course owned by a park district organized under the Park District Code, subject to the approval of the governing board of the district. Effective June 26, 2002.
By Chuck Gunnarson, Springfield
This edition of the In-Sites column contains some useful sites for performing various types of research. The information garnered during the 2000 national census is being made available electronically. At www.census.gov you can find a wealth of statistical information regarding economic, housing and social characteristics from the 2000 census, as well as certain data on past periods and projected future statistics on a number of subjects. The information is provided at the federal, state and county levels, making comparisons between these political subdivisions easy.
A site containing much information regarding the federal Freedom of Information Act (FOIA) is www.usdoj.gov/oip/foiapost/mainpage.htm. Run by the U.S. Department of Justice's Office of Information and Privacy, the site is a good place to begin searches regarding recent issues under FOIA. The site contains summaries of federal court decisions concerning FOIA, policy statements by and for federal agencies concerning various aspects of FOIA, including recent guidance concerning FOIA and homeland security issues, seminars concerning FOIA-related issues, and job openings for attorneys and legal assistants at federal agencies involving responding to FOIA requests.
Have you ever needed to track the progress of a bill at the federal or state level and were unsure where to go online to find the correct site? An article listing federal, state and commercial bill tracking resources can be found at www.llrx.com/columns/roundup18.htm. The author lists a number of useful resources to track legislation both at the federal and state levels. Links are included to governmental and commercial legislative tracking Web sites.
The Federal District Court for the Southern District of Illinois has a Web site informing practitioners about the court's electronic filing system. At www.ilsb.uscourts.gov/cmecf.htm you can find information on the hardware and training needed to utilize the system, schedules for training on use of the system, and links to bankruptcy court databases.
Have you ever been curious as to who is contributing to Illinois' political campaigns, and which candidates are receiving the money? The Illinois Campaign for Political Reform maintains a Web site at www.ilcampaign.org/search that provides information on these questions, and can be searched by either the candidate's or contributor's name.
Finally, if you have the home or business telephone number (assuming its not an unlisted/unpublished number) of an individual whose name and address you do not know, you can find out who is listed at that number at www.reversephonedirectory.com. You simply type in the telephone number into one of six separate search directories listed at the site, and the name and address of the individual at that number is shown. You can also access certain public, military and criminal records through other portions of this site.