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 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 01-001 through 01-006 and informal opinions I-01-001 through I-01-025 that may be of interest to the government bar.
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 www.ag.state.il.us/opinions/opinions.html.
Opinion No. 01-001, issued February 2, 2001: police powers of investigators of the Department of Revenue. Department of Revenue investigators who have been appointed pursuant to section 39b15.1 of the Civil Administrative Code for the purpose of enforcing taxing measures administered by the Department do not have the authority to exercise their police powers to enforce the provisions of penal statutes generally. 20 ILCS 2505/39b15.1 (West 1998.)
Opinion No. 01-003, issued March 13, 2001: salary to be paid to temporarily appointed department directors. (1) Article V, section 21 of the Illinois Constitution of 1970 prohibits a change in salary for officers of the executive branch of state government during their terms office. Department directors of administrative agencies under the jurisdiction of the Governor are subject to the provisions of Article V, section 21 of the Constitution. (2) Although an incumbent department director is authorized to holdover at the conclusion of his or her fixed term office until a successor is appointed and qualified, for constitutional, public policy and public interest reasons, it must be concluded that a vacancy exists in the new term to which the Governor may make an appointment. (3) Incumbent department directors, who are reappointed to office at the end of their fixed term with the designation temporary appointee, are entitled to the increase in compensation established by the Governor prior to their temporary appointment. Ill. Const. 1970, art. V, §§ 9(b) and 21; 20 ILCS 5/5-605, 5-610 (West 1999 Supp.)
Opinion No. 01-005, issued June 14, 2001: application of the Property Tax Extension Limitation Law to combined school districts. (1) A new school district, which was created by the passage of a referendum combining two existing school districts, is subject to the provisions of the Property Tax Extension Limitation Law to the same extent as other non-home-rule taxing districts in the county. Therefore, the new school district's tax levy, beginning with its first levy year, must be extended in compliance therewith. (2) A combined school district would be considered a "consolidated taxing district," which is subject to the provisions of section 18-215 of the Property Tax Extension Limitation Law. (3) As a consolidated taxing district, the new school district's aggregate extension would be established by combining the last preceding aggregate extensions for the two school districts which formed the consolidated taxing district. 35 ILCS 200/18-195 (West 1998,) as amended by P.A. 91-859, effective June 22, 2000; 35 ILCS 200/18-215 (West 1998.)
Informal Opinion No. I-01-001, issued January 12, 2001: "catastrophic injury" under the Public Safety Employee Benefits Act. As used in the Public Safety Employee Benefits Act, the phrase "catastrophic injury" may properly be construed to mean a permanent injury incurred by a law enforcement officer, correctional officer, correctional probation officer or a firefighter in the line of duty, the magnitude of which renders the employee unable to perform the duties of his or her employment as such. 820 ILCS 320/10 (West 1998.)
Informal Opinion No. I-01-003, issued January 12, 2001: closed meeting to establish cap on construction bids. A county board cannot, consistent with the provisions of the Open Meetings Act, hold a closed meeting for the purpose of setting a confidential cap on the total amount that the county will pay for construction of a new building prior to the solicitation of bids for its construction. Neither subsection 2(c)(5) of the Open Meetings Act, regarding the purchase or lease of real property, nor subsection 2(c)(2) of the Open Meetings Act, regarding certain labor contract matters, can be read broadly enough to encompass such a discussion. 5 ILCS 120/2 (West 1998.)
Informal Opinion No. I-01-004, issued January 17, 2001: filing of statements of economic interest by veterans' assistance commission commissioners and superintendents. The Illinois Governmental Ethics Act requires the filing of statements of economic interest by all persons appointed to the governing board of a unit of local government and by employees who exercise authority similar to that of the head of a unit of local government. A veterans' assistance commission is a unit of local government that exercises limited governmental powers with respect to limited governmental subjects. The commissioners of a veterans' assistance commission set the policies for and establish the procedures and regulations within which the commission must operate. Therefore, the commissioners are appointed to the governing board of a unit of local government for purposes of the Act. The superintendent of a veterans' assistance commission exercises powers similar to that of the head of a unit of local government. Therefore, the commissioners and superintendent of a veterans' assistance commission are required to file statements of economic interest. 5 ILCS 420/4A-101 (West 1999 Supp.)
Informal Opinion No. I-01-006, issued February 1, 2001: renewal of teaching certificatesauthority to conduct hearings to determine delinquency in child support payments. Under subsection 10-65(c) of the Illinois Administrative Procedure Act, "agencies" authorized to issue professional or occupational licenses have been granted the authority to refuse to renew the license of a person found to be delinquent in his or her child support payments. Section 2-3.9 of the School Code indicates that the State Board of Education is the "agency" responsible for granting and suspending teachers' certificates generally. Nothing in the provisions of article 21 of the School Code relative to the State Board of Education alters this position. Therefore, with respect to teaching certificates, the State Board of Education is the agency authorized to conduct hearings under subsection 10-65(c) of the Administrative Procedure Act. 5 ILCS 100/10-65(c) (West 1999 Supp.); 105 ILCS 5/2-3.9 (West 1998); 105 ILCS 5/21-0.01, 21-1c, 21-2 and 21-14 (West 1999 Supp.).
Informal Opinion No. I-01-008, issued February 20, 2001: circuit court clerk's collection of fees related to microfilmed records. (1) Public officers may collect fees only as may be authorized by law. Nothing in the language of the Clerks of Courts Act or in the other pertinent statutory provisions expressly grants the clerks of the circuit courts the authority to collect a fee from the public for the use of the office's microfilm viewing device to inspect records maintained by the clerk. (2) Under section 13 of the Local Records Act, a public officer is required to provide copies of microfilmed public records upon receipt of the requisite fee, which is calculated as the actual cost of the copies plus a 15 percent service charge. (3) Pursuant to section 2 of the Fee Deposit Act, all fees collected by the circuit clerk are to be deposited with the county treasurer, unless otherwise provided by law. Except to the extent specified by law, funds received by the county treasurer are to be deposited into the county's general or corporate fund. 50 ILCS 205/13 (West 1998); 50 ILCS 315/2 (West 1998); 705 ILCS 105/16 (West 1998.)
Informal Opinion No. I-01-012, issued March 20, 2001: public access to real property owned by the Metropolitan Water Reclamation District of Chicago for recreational purposes. The Metropolitan Water Reclamation District of Chicago has statutory authority to lease, grant easements for or permit the use of its property to the extent that such use does not interfere with the use of the property by the District. The mere fact that property is owned by a public entity for a particular corporate purpose does not mean members of the public have free access to the property for recreational or other uses. Because the District is a political subdivision of the state, the procedures that it establishes to determine who may use its property must respect all civil rights protected by the United States and Illinois Constitutions. 70 ILCS 2605/8 (West 1998); U.S. Const., amend. XIV.
Informal Opinion No. I-01-018, issued April 4, 2001: state employee's provision of consulting services to the State of Wisconsin. An employee owes a fiduciary duty to his or her employer and must devote his or her best efforts to the employer's business. To the extent that an employee of the Illinois Department of the Lottery proposes providing consulting services to the Wisconsin Lottery that compete with his official duties at the Illinois Department of the Lottery, the state employee has a prohibited conflict of interest.
Informal Opinion No. I-01-021, issued May 16, 2001: distribution of fines and fees for traffic offenses. Section 16-105 of the Illinois Vehicle Code has long been construed to require that fines and fees imposed for violations of chapters 11 through 16 of the Code that occur within municipalities be distributed to those municipalities when municipal police officers sign complaints and appear as witnesses in court, without regard to whether the state's attorney or a municipal attorney appears in court to prosecute the case. Section 2-120 of the Illinois Vehicle Code, which governs disposition of fines and fees imposed under chapters 2 through 9 of the Code, contains language nearly identical to that in section 16-105 of the Code. Consequently, with respect to violations of the provisions of chapters 2 through 9 of the Code, when a municipal police officer signs the complaint and appears in court, fines and penalties that are not disbursed by the circuit clerk pursuant to the provisions of section 27.5 and 27.6 of the Clerks of Courts Act, or other enumerated exceptions, should be paid to the treasurer of the municipality, regardless of whether the state's attorney or a municipal attorney appears in court to prosecute the case. 625 ILCS 5/2-120 (West 1999 Supp.); 625 ILCS 5/16-105 (West 1998.)
Informal Opinion No. I-01-022, issued May 16, 2001: closed meetings to consider engaging the services of a law firm. Subsection 2(c)(1) of the Open Meetings Act authorizes public bodies to hold closed meetings to consider the appointment or employment of specific employees of the public body. Subsection 2(c)(3) authorizes public bodies to hold closed meetings to select a person to fill a public office. Members of a law firm are not public employees or public officers. Consequently, a public body is not authorized to hold closed meetings for the purpose of engaging a law firm to provide legal services under either subsection 2(c)(1) or (2)(c)(3) of the Open Meetings Act. 5 ILCS 120/2(c)(1) and (c)(3) (West 1998), as amended by P. A. 91-730, effective January 1, 2001.