The newsletter of the ISBA’s Standing Committee on Government Lawyers
Attorney General issues opinions on the State Gift Ban Act
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 1998)), 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 of all official and informal opinions issued by the office of the Attorney General construing the various provisions of the State Gift Ban Act (5 ILCS 425/5 et seq. (West 1998)).
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield office.
Opinion No. 99-007, issued June 30, 1999. Implementation of the State Gift Ban Act by Units of Local Government and School Districts. (1) Units of local government and school districts are not required to appoint ethics officers. (2) Units of local government and school districts are not required to appoint local ethics commissions. (3) Units of local government and school districts are not required to follow the complaint procedures set forth in section 60 of the State Gift Ban Act. (4) Local ethics commissions may levy a fine. (5) The "ultimate jurisdictional authority" for employees of local units of government and school districts is the officer or the corporate authority that employs him or her. (6) A State's Attorney may enforce local ordinances which implement the State Gift Ban Act, if an intergovernmental cooperation agreement has been entered into by the county with another unit of local government or school district and the State's Attorney approves the contract. (7) Local ethics commissions are not per se exempt from the provisions of the Open Meetings Act. (8) Documents generated or in the possession of a local ethics commission or an ultimate jurisdictional authority are not exempt per se from disclosure under the Freedom of Information Act. (9) The Attorney General is not the legal advisor for the local ethics commissions. 5 ILCS 425/5 et seq. (West 1998).
Opinion No. 00-002, issued March 7, 2000. Applicability of the State Gift Ban Act to Judges of Election. The position of judge of election is a public office generally subject to the provisions of the State Gift Ban Act. Because a judge of election is considered to be an "officer of the court," however, a judge of election is not subject to the provisions of the State Gift Ban Act pursuant to the court order entered in Illinois State Bar Association v. Ryan, Docket No. 98-MR-363 (Circuit Court, Sangamon County). 5 ILCS 425/5 (West 1998).
Informal Opinion No. I-99-039, issued August 20, 1999. Townships and Township Road Districts Sharing of an Ethics Commission under the State Gift Ban Act. Both townships and township road districts are required to adopt policies prohibiting the acceptance and solicitation of gifts, and to provide procedures for processing ethics complaints in accordance with constitutional standards. In doing so, townships and township road districts may enter into an intergovernmental cooperation agreement for the joint creation of an ethics commission. 5 ILCS 425/83 (West 1998).
Informal Opinion No. I-99-044, issued September 30, 1999. Applicability of the State Gift Ban Act to Trustees of the State and Local Pension Boards; State Gift Ban Act Exceptions. (1) The State Gift Ban Act applies to all employees and officials of a governmental entity, not just those public officials who are responsible for making and passing laws. (2) The state Gift Ban Act applies to the trustees of the various State retirement systems but not to the trustees of the several local retirement systems. (3) The language in section 83 of the State Gift Ban Act authorizing the exemption of "non-salaried appointed or elected officials," applies only to the elected or appointed officials of units of local government and school districts. Therefore, the trustees of the various state retirement systems may not be exempted from compliance with the provisions of the Act. Because of the dual status of the trustees of local retirement systems as municipal officers and employees, persons serving as trustees of the local retirement systems remain subject to local gift ban ordinances. (4) The exception contained in subsection 15(21) of the Act for golf and tennis does not extend to similar gifts of equal or lessor value. 5 ILCS 425/5, 15(21) and 83 (West 1998).
Informal Opinion No. I-99-046, issued October 26, 1999. Applicability of the State Gift Ban Act to Non-Salaried Hourly Employees of Units of Local Government and School Districts. Section 83 of the State Gift Ban Act authorizes units of local government and school districts to exempt "non-salaried appointed or elected officials" from local regulations. Non-salaried hourly employees are not elected or appointed officers who may be exempted from policies adopted pursuant to the provisions of the State Gift Ban Act. 5 ILCS 425/83 (West 1998).
Informal Opinion No. I-99-050, issued December 22, 1999. Community College Districts Subject to the State Gift Ban Act. Regardless of whether a community college district is categorized as a special district and a unit of local government or a school district, a community college district is subject to the provisions of section 83 of the State Gift Ban Act. 5 ILCS 425/83 (West 1998).
In addition to the foregoing opinions, the office of the Attorney General recently issued the following informal opinions which may be of general interest to the government bar.
Informal Opinion No. I-00-001, issued January 4, 2000. Change in Durational Residency Requirement for Candidates for Office in Home Rule Municipalities. A home rule municipality may, by referendum, change the durational residency requirement for elected municipal officers. The existence of a coterminous township will not inhibit that power. However, a residency requirement longer than one year may be subject to constitutional challenge. Ill. Const. 1970, art. VII, §6(a), (f); 65 ILCS 5/3.1-10-5 (West 1998).
Informal Opinion No. I-00-002, issued January 27, 2000. Compatibility officesCounty Clerk and Recorder and Park District Commissioner. There are no constitutional or statutory provisions which prohibit one person from holding the offices of county clerk and recorder and park district commissioner. Moreover, the duties of a county clerk and recorder and a park district commissioner would not conflict. Therefore, one person may hold the offices of county clerk and recorder and park district commissioner simultaneously.
Informal Opinion No. I-00-003, issued January 27, 2000. Public Auction of Unclaimed Impounded Vehicle. Section 11-15 of the Criminal Code of 1961 authorizes a peace officer who arrests a person for soliciting for a prostitute to impound any vehicle used by that person in the commission of that offense. Section 11-15 of the Code does not provide for the disposition of a vehicle so impounded. Section 4-208 of the Illinois Vehicle Code, however, authorizes the sale at public auction of unclaimed vehicles that remain unclaimed after proper notice has been given. 720 ILCS 5/11-15 (West 1998), as amended by P.A. 91-274, effective January 1, 2000 and P.A. 91-498, effective January 1, 2000; 625 ILCS 5/4-208 (West 1998).
Informal Opinion No. I-00-004, issued February 9, 2000. Conflict of InterestCounty Clerk's Interest in a Depository. A county clerk's duties with regard to public funds are purely ministerial in nature. A county clerk would not be called upon to act or vote upon the deposit of county funds in a depository. Therefore, a violation of section three of the Public Officer Prohibited Activities Act does not occur where a county clerk is a shareholder and serves as a member of the board of directors of a bank in which county funds are deposited. 50 ILCS 105/3 (West 1998).
Informal Opinion No. I-00-005, issued February 23, 2000. Effective Date of Motor Vehicle Registration Fee Increase. The increase in motor vehicle registration fees contained in Public Act 91-037 applies to all registrations for registration year 2001. The provisions of the Illinois Vehicle Code do not contemplate a reduced fee for those persons paying their 2001 registration year fees before January 1, 2000. 625 ILCS 5/3-806 (West 1998), as amended by P.A. 91-037, effective July 1, 1999.
Informal Opinion No. I-00-006, issued February 25, 2000. Conflict of Interest-Participation of an Officer on an Issue Previously Advocated as Counsel. While an attorney's past representation of a client regarding a particular issue may evidence his or her knowledge of the issue, it does not necessarily imply personal agreement with the position of that client, nor would it ordinarily disqualify the attorney from participating in a quasi-legislative proceeding regarding the issue.