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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2004, vol. 5, no. 5

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2002)), 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 official opinions 03-001 through 03-008 and informal opinions I-03-001 through I-03-015 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 of official opinions may also be found on the Internet at <>.

Opinion No. 03-001, issued January 7, 2003

Brush pickup in unincorporated areas

Townships are expressly authorized to provide branch and yard trimming removal, upon referendum approval, as set out in article 210 of the Township Code. It is neither necessary nor appropriate to imply the power to provide such services in some other manner. A township road district has no express authority to provide free brush removal for private land owners. No such authority can be implied from any provision of the Highway Code. 60 ILCS 1/210-5 et seq. (West 2000); 605 ILCS 5/9-111.1, 9-117, 6-802 (West 2000).

Editors' Note: Subsequent to the issuance of opinion No. 03-001, the pertinent provisions of the Township Code and of the Illinois Highway Code were amended to allow townships and township highway commissioners to provide branch and leaf collection services. Public Act 93-109, effective July 8, 2003, amended the Township Code and the Illinois Vehicle Code to provide that the township electors may authorize general road and bridge funds or town funds be used for the disposal of brush and leaves from property contiguous to roadways and for disaster relief services approved by the township board. The township electors may also grant the highway commissioner the authority to provide for the disposal of brush and leaves and for necessary disaster relief.

Opinion No. 03-002, issued January 7, 2003

Restrictions on public access to meetings of the Prisoner Review Board

(1) Subsection 2(c)(18) of the Open Meetings Act and section 15 of the Open Parole Hearings Act authorize the Prisoner Review Board to go into closed session to deliberate on petitions for parole. (2) Section 15 of the Open Parole Hearings Act authorizes the Board to limit the number of persons attending a parole hearing where security and safety so require. (3) Section 2.05 of the Open Meetings Act authorizes the use of recording devices in the open meetings of public bodies. (4) Use of a live audio or video feed, in the circumstances described in the opinion, is consistent with the Open Meetings Act. 5 ILCS 120/2(c)(18), 2.05 (West 2000); 730 ILCS 105/15 (West 2000).

Opinion No. 03-004, issued May 30, 2003

Funding of elementary and secondary schools

(1) Article X, section 1 of the Illinois Constitution does not require the State to contribute any specific level of funding to support the public school system. (2) The General Assembly must determine what constitutes a "minimally adequate education" and whether the current system of school funding is sufficient to meet the standard that the General Assembly has set. Ill. Const. 1970, art. X, § 1.

Opinion No. 03-006, issued August 18, 2003

Assignment of Board Members to Committees

The appointment of county board members and other persons to county board committees is not the "selection of a person to fill a public office" as that phrase is defined in subsection 2(c)(3) of the Open Meetings Act, and, therefore, such action cannot properly be considered in a closed meeting. The county board, or a committee thereof, may hold a closed meeting for the purpose of considering the appointment of persons to public offices. 5 ILCS 120/2 (West 2000).

Opinion No. 03-007, issued September 8, 2003

DNA database

Defendants placed on felony first offender probation pursuant to section 10 of the Cannabis Control Act or section 410 of the Illinois Controlled Substances Act are subject to DNA sampling pursuant to section 5-4-3 of the Unified Code of Corrections. 720 ILCS 550/10 (West 2002); 720 ILCS 570/410 (West 2002); 730 ILCS 5/5-4-3 (West 2002).

Opinion No. 03-008, issued September 8, 2003

At-large election of County Board Chairman

In counties having fewer than 450,000 inhabitants wherein the chairman of the county board is elected at-large and is not required to be a member of the county board, one person may run for and hold the two offices simultaneously.

Opinion No. 03-008, issued September 8, 2003

Filling of vacancy in office of County Board Chairman

Section 25-11 of the Election Code governs the filling of a vacancy in the office of county board chairman who is elected at-large, which occurs with more than 28 months remaining in the term. Subsection 2-3009(c) of the Counties Code does not govern the filling of such vacancies. 10 ILCS 5/25-11 (West 2002); 55 ILCS 5/2-3007, 2-3009(c) (West 2002).

Informal Opinion No. I-03-002, issued May 1, 2003

Compatibility of offices-County Board Member and School Board Member

Section 1.2 of the Public Officer Prohibited Activities Act permits a county board member in a county with fewer than 40,000 inhabitants to serve a "term of office" simultaneously on a board of education, regional board of school trustees, board of school directors or board of school inspectors. Although the General Assembly used the singular tense "term" of office in section 1.2, that language does not prevent a county board member in a county with fewer than 40,000 inhabitants from simultaneously serving as a school board member for more than one term of office. Section 1.2 does not contain language which limits the duration of the authorized simultaneous tenure in both offices. 50 ILCS 105/1.2 (West 2000).

Informal Opinion No. I-03-005, issued October 9, 2003

Provision of ambulance service by Fire Protection District without referendum

A fire protection district which has not passed an ambulance service referendum may use its general corporate funds to contract with a neighboring fire protection district that operates an ambulance service for the provision of ambulance services. The district purchasing the services cannot, however, limit the number of ambulance services within its territory or regulate such services. 70 ILCS 705/22 (West 2002).

Informal Opinion No. I-03-006, issued October 9, 2003

Compensation of County Board Vice Chairman

Sections 2-3008 and 4-10001 of the Counties Code authorize a county board to provide for additional compensation to be paid to the chairman of the county board. Neither section, however, contains any reference to the payment of additional compensation for service in any other organizational position on the board, including that of vice-chairman. Therefore, a county board does not have the authority to fix the compensation of the vice-chairman of the board at a rate in excess of that provided for county board members generally. 55 ILCS 5/2-3008, 4-10001 (West 2002).

Informal Opinion No. I-03-007, issued October 22, 2003

Sheriff's enforcement of motor vehicle laws in private subdivision

The sheriff is neither obligated nor authorized to enforce provisions of the Illinois Vehicle Code, other than articles IV and V, on private roadways, unless the homeowner's association and the county have entered into an agreement as required by section 11-209.1 of the Vehicle Code. The sheriff has discretion regarding the use of resources, such that he is not "obligated" to enforce trespassing laws in preference to his other duties. 625 ILCS 5/11-209.1 (West 2002); 55 ILCS 5/3-6021 (West 2002).

Informal Opinion No. I-03-008, issued October 30, 2003

Use of tort liability tax levy to fund employee medical insurance

Tort liability tax funds raised pursuant to section 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act cannot be used to pay for contractual obligations such as the costs associated with the provision of medical insurance and prescription drug coverage to county or municipal employees. 745 ILCS 10/9-107 (West 2002).

Informal Opinion No. I-03-010, issued November 26, 2003

Public employee's attendance at county board meetings during normal state/municipal business hours

Under the provisions of the Time Off For Official Meetings Act, a county board member is entitled to absent himself from his employment to attend a county board meeting. However, an adjustment in the compensation of an official government employee is required for time spent attending meetings as an official of another governmental body. The form of the adjustment, whether by a reduction in the government employee's salary, by the required use of the government employee's vacation or personal leave time, or by some other means, is a matter that must be addressed by the government employer. A policy requiring a reduction in the salary of or the use of personal leave by a public employee will not convert that person from an "exempt" employee to that of a "non-exempt" employee, for purposes of the Fair Labor Standards Act. 50 ILCS 115/1 (West 2002); 29 U.S.C. § 201 et seq. (2002); 29 C.F.R. § 541.5d (2002).

Informal Opinion No. I-03-011, issued November 26, 2003

Authority of County Board to change addresses to conform with emergency telephone system street address database

Section 5-1067 of the Counties Code grants county boards the authority to change street names and addresses in privately-owned, unincorporated portions of the county in order to create a master street address database to be used by the county's emergency telephone system board. The fact that certain properties have National Landmark status under the National Historic Preservation Act does not prevent the county board from making address changes, since the address changes do not violate Federal preservation laws and standards. 55 ILCS 5/5-1067 (West 2002); 16 U.S.C. § 470-1 et seq.

Informal Opinion No. I-03-012, issued December 19, 2003

Compatibility of offices-County board member and Port District board member

A county board member and a county board chairman selected from the membership of the county board are prohibited by section 1 of the Public Officer Prohibited Activities Act from being appointed to a position on a port district board. A county board chairman elected by the voters of the county may not serve simultaneously as a port district board member because of a common law conflict. 50 ILCS 105/1 (West 2002).

Informal Opinion No. I-03-014, issued December 30, 2003

Transfer into a County General Revenue Fund excess monies from a separately established Workers' Compensation Fund

The provisions of section 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act expressly prohibit the use of special tax funds for unrelated purposes. Therefore, a county does not have the authority to transfer excess funds from a separately established workers' compensation fund account funded by section 9-107 of the Tort Immunity Act into the county's general corporate fund. 55 ILCS 5/5-1011 (West 2002); 745 ILCS 10/9-107 (West 2002).

Informal Opinion No. I-03-015, issued December 30, 2003

Verbatim record requirement of Open Meetings Act-Use of stenographic transcription

The amendments to section 2.06 of the Open Meetings Act made by Public Act 93-523, effective January 1, 2004, require a verbatim record of all closed meetings and require that the record be made using an audio or a video recording format. The amendments to section 2.06 do not authorize the use of stenographic transcription. 5 ILCS 120/2.06 (West 2002), as amended by Public Act 93-523, effective January 1, 2004.