The newsletter of the ISBA’s Standing Committee on Government Lawyers
Attorney general issues opinions
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 official opinions 00-009 through 00-018 and informal opinions I-00-027 through I-00-049 that may be of general interest to the government bar. (See, "Attorney general issues opinions on the State Gift Ban Act," ISBA Standing Committee on Government Lawyers newsletter, April 2000, Vol. 1, No. 1, for a summary of informal opinions I-00-001 through I-00-006 and "Attorneys general issue opinions addressing ethical concerns," ISBA Standing Committee on Government Lawyers newsletter, November 2000, Vol.2, No.1, for a summary official opinions 00-001 through 00-008 and informal opinions I-00-007 through I-00-026.)
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield office. Copies official opinions may also be found on the Internet at <http://www.ag.state.il.us/opinions.html>.
Opinion No. 00-011, issued October 12, 2000: county's contribution to a private legal defense fund. Under article VIII, section 1 of the Illinois Constitution of 1970, public funds may be expended only for a public purpose. Defraying the costs of purely private litigation does not serve a proper public purpose. Because the plaintiff's claims in Miami Tribe of Oklahoma v. Walden, Docket No. 4:00 CV 4142 (United States District Court, Southern District of Illinois) directly affect real property belonging to the county and the county's taxing and regulatory powers, however, it is not purely private litigation. Therefore, in the circumstances set forth in the opinion, a county board could properly determine that contributions to a private legal defense fund serve a public purpose. Ill. Const. 1970, art. VIII, sec. 1.
Opinion No. 00-012, issued October 12, 2000: access to county recorder's records via the Internet. (1) The county recorder, as an exercise of his or her authority to control the internal operations of the recorder's office, may establish and maintain a Web site that provides Internet access to information contained in the records of the county recorder. (2) The county recorder has no authority to assess a fee against persons or businesses desiring Internet access to the county recorder's files. (3) The county recorder may not use moneys in the county recorder's automation fund to establish and maintain a Web site. (4) Because the county recorder is under no duty to maintain a Web site, the determination of which public records or portions thereof to post on a Web site is a matter within the discretion of the county recorder. 5 ILCS 140/3 (West 1998); 55 ILCS 5/3-5005.2, 3-5018 (West 1998).
Opinion No. 00-018, issued December 29, 2000: application of the Prevailing Wage Act to grant recipients. The Prevailing Wage Act will apply to those not-for-profit corporations that are supported by a publicly funded stream of revenue and those which receive significant income and funding from public sources. Application of the Act to those institutions that receive one-time grants of public funds for specific purposes must be considered on a case by case basis to determine whether funding for a particular project constitutes support for the institution itself. Receipt of public funds for the construction of a fixed work for public use will subject the project to the provisions of the Act. 820 ILCS 130/2 (West 1999 Supp.).
Informal Opinion No. I-00-028, issued July 6, 2000: constitutionality of an Illinois Commerce Commission ruling requiring Commonwealth Edison to recover the costs of burying power lines. A violation of the contracts clause in both the federal and state constitutions occurs where a change in state law operates as a substantial impairment of a contractual relationship. A ruling by the Illinois Commerce Commission, which requires Commonwealth Edison to recover the costs of burying power lines within a municipality pursuant to a franchise agreement it entered into with the municipality from only those consumers living within the municipality's corporate limits, does not substantially impair a contractual relationship where the parties to the agreement should have foreseen the issuance of the ruling. U.S. Const. art. I, sec. 10, cl. 1; Ill. Const. 1970, art. I, sec. 16.
Informal Opinion No. I-00-029, issued July 20, 2000: payment of legal services from tort liability tax funds. Sections 9-103 and 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act authorize the expenditure of tort liability tax funds for "legal services directly attributable to the insurance ... program." Consequently, the costs associated with obtaining legal advice, or services requiring the use of legal skills or knowledge, that are directly attributable to an insurance, a self-insurance or joint self-insurance program may be paid out of tort liability tax funds. Moreover, the attorney's office expenses, the supplies and equipment associated therewith and the salary of support staff for the office may also be paid out of tort liability tax fund revenues, but only if those costs are directly related to the legal services required by the insurance or self-insurance program. 745 ILCS 10/9-103, 9-107 (West 1998), as amended by Public Act 91-0628, effective January 1, 2000.
Informal Opinion No. I-00-037, issued September 1, 2000: local professional development committees and regional professional development review committees. (1) Local Professional Development Committees and Regional Professional Development Review Committees are statutorily created public bodies that are subject to the provisions of the Open Meetings Act. (2) Local Professional Development Committees, as subsidiary bodies of school districts, and Regional Professional Development Review Committees, as administrative and advisory bodies associated with the regional superintendents of education, are "local public entities" to which the provisions of the Local Governmental and Governmental Employees Tort Immunity Act are applicable. 5 ILCS 120/1.02 (West 1998); 745 ILCS 10/1-206 (West 1998).
Informal Opinion No. I-00-038, issued August 29, 2000: delegation of Commissioner of Banks and Real Estate's authority to sign orders of summary suspension. Section 0.8 of the Office of Banks and Real Estate Act expressly authorizes the Commissioner of Banks and Real Estate to delegate to his or her deputy commissioners any power authorized by law to be performed. Section 20-65 of the Real Estate License Act of 2000 specifically authorizes the Commissioner to temporarily suspend the license of a real estate broker, salesperson or leasing agent. This suspension power may be delegated to a deputy commissioner. The authority to issue temporary suspension orders may not be delegated to other employees of the Office of Banks and Real Estate. 20 ILCS 3205/0.8 (West 1998); 225 ILCS 454/ 1-10, 20-65 (West 1999 Supp.).
Informal Opinion No. I-00-040, issued September 27, 2000: local law enforcement officers' use of throw phones under Illinois' eavesdropping statutes. Under section 108A-6 of the Code of Criminal Procedure of 1963, a law enforcement officer may use an eavesdropping device in an emergency situation upon approval of the state's attorney, or without it if a reasonable effort has been made to contact the state's attorney. The use of a "throw phone" in a hostage or barricade situation by local law enforcement officers would appear to fall squarely within the provisions of section 108A-6 of the Code, and the use of throw phones by law enforcement officers would not be unlawful in an emergency situation, as long as the procedures set forth in section 108A-6 are followed. 720 ILCS 5/14-2 (West 1999 Supp.); 725 ILCS 5/108A-6 (West 1998).
Informal Opinion No. I-00-042, issued October 16, 2000: city human relations commission subject to the Open Meetings Act. The city of Galesburg's Human Relations Commission is a "public body" subject to the provisions of the Open Meetings Act. To the extent that the Commission holds closed conciliation conferences that are not attended by a majority of a quorum of the commissioners of the Human Relations Commission, there is no "meeting" for purposes of the Open Meetings Act. Section 11-11.1-1 of the Illinois Municipal Code authorizes human relations commissions to hold closed meetings for the purpose of conciliating complaints of discrimination in housing. With respect to other hearings conducted by the commissioners or other meetings of the Commission itself, the Commission may be able to go into closed session under subsection 2(c)(4) of the Open Meetings Act to deliberate upon the evidence or testimony received. 5 ILCS 120/1.02 and 2(c)(4) (West 1998).
Informal Opinion No. I-00-044, issued October 23, 2000: candidate access to and conduct within a polling place. Sections 7-34 and 17-23 of the Election Code provide that candidates seeking office in a district or municipality encompassing two or more counties shall be admitted to any and all polling places throughout such district or municipality. Sections 7-34 and 17-23 further provide, however, that such candidates who desire to be admitted to polling places on election day in such district or municipality shall be required to have proper credentials from the appropriate election authorities. If a candidate does not possess proper credentials, the judges of election should refuse to admit the candidate to the polling place or instruct the candidate to leave the polling place. Candidates who are properly admitted to a polling place must comply with all rules governing the conduct of persons within a polling place. 10 ILCS 5/7-34, 17-23 (West 1999 Supp.).
Informal Opinion No. I-00-048, issued November 3, 2000: reproduction of the Great Seal of the State of Illinois on a mausoleum. The placement of a reproduction of the Great Seal of the State of Illinois on the mausoleum of a former constitutional officer is not an affixing or use of the "Great Seal of the State." Consequently, the Secretary of State is under no duty to review the propriety of the request. Ill. Const. 1970, art. V, sec. 16.