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 2004)), the Attorney General is authorized, upon request, to furnish 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 05-001 through 05-010, as well as official opinion 06-001. Informal opinions I-05-001 through I-05-008 and I-06-001 through I-06-022 are also summarized.
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 <http://www.illinoisattorneygeneral.gov/opinions/index.html>.
Opinion No. 05-001 Issued January 12, 2005
Restrictions on Political Activities
Members of the Illinois Executive Ethics Commission are prohibited by subsection 20-5(f)(4) of the State Officials and Employees Ethics Act (5 ILCS 430/20-5(f)(4) (West 2003 Supp.)) from “actively participat[ing] in any campaign for any elective office.” This phrase includes such political activities as the making of contributions to a candidate for a political organization, as well as participating in a political event. Although subsection 20-50(f) places significant restrictions upon activities that are generally protected by the First Amendment, because of the extremely sensitive nature of the duties of the Illinois Executive Ethics Commission and the importance of avoiding any doubt as to its impartiality, such restrictions are neither unreasonable nor inappropriate and thus do not impermissibly restrict the constitutionally protected First Amendment rights of the commissioners. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-001.pdf>.
Opinion No. 05-002 Issued April 15, 2005
Fees for Accessing Information Contained in a Geographic Information System
Subsection 7(l)(i) of the Freedom of Information Act ( 5 ILCS 140/7(l)(i) (West 2003 Supp.)) does not authorize a public body to collect additional fees to obtain information in a computer geographic system, which would include a geographic information system. Rather, subsection 7(l)(i) authorizes a public body to withhold from inspection and copying information contained in a computer geographic system. Should a public body decide to provide public access to information in its computer geographic system, the public body may charge a fee only to reimburse its actual cost of reproduction in accordance with the provisions of section 6 of the Freedom of Information Act. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-002.pdf>.
Opinion No. 05-003 Issued April 15, 2005
Ability of County Clerk to Restrict Access to Absentee Ballot Applications
Under article 19 of the Election Code, a county clerk is without authority to prohibit third parties from distributing absentee ballot applications and is further without authority to refuse to accept absentee ballot applications, properly completed in the statutory form, because the application did not originate directly from the county clerk’s office. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-003.pdf>.
Opinion No. 05-004 Issued May 13, 2005
Utilizing Private Contractors to Transport Persons under the Jurisdiction of the Department of Corrections
The transportation of persons under the jurisdiction of the Illinois Department of Corrections to and from correctional facilities or other locations outside of Illinois constitutes “services relating to the operation of a correctional facility or the incarceration of persons in the custody of the Department of Corrections.” As a result, the Private Correctional Facility Moratorium Act prohibits the use of private contractors to transport persons under the jurisdiction of the Department of Corrections to and from Illinois. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-004.pdf>.
Opinion No. 05-005 Issued June 30, 2005
Constitutionality of Reduction of State Contributions to the Retirements Systems
On May 29, 2005, the General Assembly passed Senate Bill 27, which was signed into law by the Governor on June 1, 2005, as Public Act 94-004. This Act, among other things, made changes to the required State contributions to the five State-funded retirement systems. Specifically, Public Act 94-004 reduced the required State contributions to the retirement systems by $1.1787 billion in FY2006 and $1.1332 billion in FY2007. Public Act 94-004 is constitutional in that it: (1) does not cause the incurrence of “State debt,” as that phrase is defined in article IX, section 9, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IX, §9) by reducing the amount of scheduled payments to the State retirements systems over the next two fiscal years, thereby requiring the legislation to have passed by a three-fifths vote of each house of the General Assembly; (2) does not violate article XIII, section 5, of the Constitution (Ill. Const. 1970, art. XIII, §5), which creates an enforceable contractual relationship that protects against the diminishment or impairment of State pension benefits; and (3) does not violate the provisions of the American Federation of State, County, and Municipal Employees contract which requires that the State make contributions to the retirement system, thereby constituting an impairment of contract in violation of article 1, section 16, of the Constitution (Ill. Const. 1970, art. I, §16). <http://www.illinoisattorneygeneral.gov/opinions/2005/05-005.pdf>.
Opinion No. 05-006 Issued July 12, 2005
Applicability of Ethics Act to Judges on the Board of Trustees of the Judges Retirement System
The State Officials and Employees Ethics Act (5 ILCS 430/1-1 et seq. (West 2002)) only applies to the executive and legislative branches of government. It does not apply to the officers and employees of the judicial branch. Therefore, the requirements of the Ethics Act will apply to a judge who serves on the Board of Trustees of the Judges Retirement System only if service on the Board is separate and apart from his or her judicial office. The Chief Justice of the Supreme Court serves on the Board as an ex-officio member. Service on the Board, therefore, is one of the official duties of the Chief Justice and is an inherent function of the judicial branch. Accordingly, the Chief Justice, in her capacity as an ex-officio member of the Board, is not subject to the Ethics Act’s provisions. Similarly, because section 18-135 of the Pension Code (40 ILCS 5/18-135 (West 2004)) requires, as a condition precedent to appointment, that the other judge trustees be sitting judges, the judge trustees are members of the judicial branch and thus are not subject to the Ethics Act. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-006.pdf>.
Opinion No. 05-007 Issued September 7, 2005
Use of Non-Statutory Election Systems in Home Rule Municipalities
Under article VII, section 6 of the Illinois Constitution of 1970, a change in the manner of selecting officers of a home rule municipality may be effected by referendum, regardless of whether the legislature has authorized the particular method for selection. Therefore, because the Election Code and the Municipal Code provisions for selecting municipal officers may be superseded by a referendum adopted in a home rule municipality pursuant to article VII, section 6, home rule municipalities may adopt procedures for electing municipal officers by cumulative voting or instant run-off voting with referendum approval. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-007_2529.pdf>.
Opinion No. 05-008 Issued September 20, 2005
Compliance with the Help America Vote Act
Public Act 93-1071, effective January 18, 2005, which requires that a centralized, statewide voter registration list be compiled from the voter registration databases of local election authorities is consistent with title III, section 303 of the Federal Help America Vote Act of 2006 (HAVA) (42 U.S.C.A. §15483 (West. Supp. 2005)). Although Public Act 93-1071 is consistent with HAVA, it does not specify how the State Board of Elections is to maintain the database or verify the accuracy of the information contained in the database. The Board, in developing the statewide database, must ensure compliance with these principles. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-008.pdf>.
Opinion No. 05-009 Issued October 5, 2005
Governmental Ethics and Conflict of Interest
Due to the specific definitions found in the State Officials and Employees Ethics Act (5 ILCS 430/1-1 et seq. (West 2004)), community college districts are considered “State agencies” subject to the provisions of the Ethics Act. Although community college districts also constitute special districts and are considered “units of local government,” due to the definition of “State agency” contained in the Ethics Act, community college districts are not authorized to adopt their own ethics ordinance or resolution pursuant to the provisions of section 70-5 of the Ethics Act (5 ILCS 430/70-5 (West 2004). <http://www.illinoisattorneygeneral.gov/opinions/2005/05-009.pdf>.
Opinion No. 05-010 Issued December 16, 2005
State Matters/Intergovernmental Cooperation
The Abraham Lincoln National Airport Commission (ALNAC) is composed of both home rule municipalities, which possess broad powers to deal with local affairs and are exempt from competitive bidding statutes, and non-home-rule municipalities, which are limited in their powers and clearly subject to competitive bidding statutes. To comply with applicable procurement laws, ALNAC must fulfill the procurement requirements that govern each of its individual members. Thus, ALNAC is bound by the statutory limitations governing its non-home-rule members. Under Illinois law, the Illinois Department of Transportation also does not have the authority, without express legislative approval, to convey State-owed land to any entity for less than fair market value. <http://www.illinoisattorneygeneral.gov/opinions/2005/05-010.pdf>.
Opinion No. 06-001 Issued January 24, 2006
Operation of Keno by the Illinois Department of Revenue
The game of Keno is not a lottery. Therefore, neither the Governor nor the Illinois Department of Revenue has the authority under current law to establish the proposed game as an extension of the State’s lottery. <http://www.illinoisattorneygeneral.gov/opinions/2006/06-001.pdf>.
Informal Opinion No. I-05-001 Issued January 26, 2005
Elections – Determination of whether a Referendum is Advisory or Binding
A referendum proposition concerning whether the LaSalle County Board Chairman should be elected on an at-large basis was advisory, rather than binding, because the initiating petition referred specifically to the advisory referendum provisions of section 2-3002 of the Counties Code (55 ILCS 5/2-3002 (West 2003 Supp.), despite the fact that the petition contained signatures from more than 10 percent of the registered voters of the county as required for binding referenda under section 28-7 of the Election Code (10 ILCS 5/28-7 (West 2002)).
Informal Opinion No. I-05-002 Issued January 31, 2005
Compatibility of Offices – Village Trustee and Township Highway Commissioner
Because of the potential conflict of duties that arises when one governmental unit contracts with another, an individual may not serve simultaneously as both a village trustee and a township highway commissioner because the individual would not be able to represent the interests of both entities adequately, fully, and faithfully.
Informal Opinion No. I-05-003 Issued January 31, 2005
Compatibility of Offices – City Council Member and Library District Trustee
Because of the potential conflict of duties that arises when one governmental unit contracts with another, an individual may not serve simultaneously as both a library district trustee and a city council member because the individual would not be able to represent the interests of both entities adequately, fully, and faithfully.
Informal Opinion No. I-05-004 Issued June 14, 2005
Use of Bond Proceeds to Procure Property by Eminent
Proceeds of township bonds, issued pursuant to section 125-10 of the Township Code (60 ILCS 1/125-10 (West 2004)), may be used to procure parks lands through the use of eminent domain under the clear language of section 125-15 of the Township Code (60 ILCS 1/125-15 (West 2004)) which provides that bond proceeds “shall be used, solely for the purpose of procuring and improving one or more parks in the township. Section 125-20 of the Township Code bears the heading “Use of bond proceeds,” but does not address that issue. Section 125-15, not section 125-20, establishes the uses to which bond proceeds may be applied by prescribing that “the proceeds shall be used, solely for the purpose of procuring and improving one or more parks in the township.”
Informal Opinion No. I-05-005 Issued June 14, 2005
Status of Capitol Complex Police Officers for Purposes of Social Security Exemption
Employees holding the position of “Police Officer” in the Office of Secretary of State Department of Police are eligible for inclusion within the alternative retirement annuity formula set out in section 14-110 of the Illinois Pension Code (40 ILCS 5/14-110 (West 2004), as amended by Public Act 94-004, effective June 1, 2005) because such employees are considered “policemen” under the Pension Code in that they perform duties that include maintaining order, making arrests, and initiating other enforcement actions.
Informal Opinion No. I-05-006 Issued September 23, 2005
Compatibility of Offices – County Coroner Serving as the County Sheriff
The duties of the coroner and sheriff are compatible. Whether the same person may simultaneously hold both offices will depend upon factual considerations, given that the sheriff is required to attend to the duties of his or her office on a full-time basis.
Informal Opinion No. I-05-007 Issued September 23, 2005
Compatibility of Offices – City Alderman and County Jail Administrator
The position of county jail administrator is one of employment, rather than an office, and is therefore not incompatible with the office of city alderman. The fact that the city shares riverboat gambling revenue with the county does not preclude the dual service as public employees are not deemed to have an interest in the contracts of their governmental employers.
Informal Opinion No. I-05-008 Issued December 16, 2005
Dissolution of Assessment Districts
A county which had previously established four assessment districts may provide for the assessment of the entire county in the general assessment year provided for that county and abolish the separate assessment districts. When it does so, the previously entered order of the Property Tax Appeal Board providing for lowered assessments on properties will remain in effect until the time of the general assessment so provided.
Informal Opinion No. I-06-001 Issued January 6, 2006
Operational Control of a Veterans Assistance Commission
A county board is not required to make payment on claims submitted by a veterans assistance commission where moneys appropriated for the use of the commission have been exhausted. The county does not possess the authority to require the veterans assistance commission to review and to approve all claims signed by the superintendent of the veterans assistance commission before they are submitted to the county for payment. The veterans assistance commission is authorized to determine the number of employees that the commission will employ and also is authorized to establish the terms of employees’ employment, subject to the approval of the county board.
Informal Opinion No. I-06-002 Issued January 6, 2006
Use of County Property to Recover Private Property for a Fee
It would be a violation of the constitutional limitation on the use of public property for a county dive team to engage in the routine business of the recovery of private property for hire. However, when there is a public purpose to be served, the dive team is not constitutionally prohibited from incidentally benefitting a private interest by the recovery of private property. The county board has no statutory or constitutional authority to charge a fee for the recovery of lost items.
Informal Opinion No. I-06-003 Issued January 10, 2006
Status of Military Security Police as Police Officer for Purposes of Social Security Exemption
The positions of Military Security Police I and Military Security Police II may be designated by the Director of Military Affairs as exempt from Social Security coverage pursuant to sections 218(d)(5)(A) and 218(d)(8)(D) of the Social Security Act, as provided in section 21-107 of the Illinois Pension Code.
Informal Opinion No. I-06-004 Issued January 12, 2006
County Board of Health Vacancy
Under the provisions of section 5-25012 of the Counties Code (55 ILCS 5/5-25012 (West 2004)), a person who is appointed to fill a vacancy on a board of health serves only the remaining term of office of the member that he or she replaces. The appointee does not commence a full, three-year term of office.
Informal Opinion No. I-06-005 Issued January 13, 2006
State’s Attorney’s Prosecution of Municipal Ordinance Violations is Not Private Practice of Law
A county board, with the approval of the State’s Attorney, may contract with municipalities for the prosecution of municipal ordinance violations. A State’s Attorney who prosecutes municipal ordinance violations pursuant to the terms of an intergovernmental agreement does so in his or her official capacity as State’s Attorney. Therefore, the State’s Attorney does not violate the prohibition on engaging in the private practice of law contained in section 4-2001 of the Counties Code (55 ILCS 5/4-2001 (West 2004)).
Informal Opinion No. I-06-006 Issued January 13, 2006
Approval of Expenditures that Exceed an Appropriated Line-Item
A county board cannot increase a line-item appropriation in the county’s annual budget, or expend unappropriated money, except as specifically authorized under division 6-1 of the Counties Code (55 ILCS 5/6-1001 et seq. (West 2004)). A county board member who knowingly and without legal justification does any act which adds to the county expenditures or liabilities in any year anything above the amount provided for in the annual budget for that fiscal year may be subject to the penalties set out in section 6-1008 of the Counties Code (55 ILCS 5/6-1008 (West 2004)).
Informal Opinion No. I-06-007 Issued January 23, 2006
Unclaimed Property Held by Circuit Clerk
The circuit clerk should pay unclaimed bail deposits to the county treasurer pursuant to section 110-17 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-17 (West 2004)). All other unclaimed, and presumed abandoned, funds in the custody of the circuit clerk should be reported and delivered to the State Treasurer in accordance with sections 8, 11, and 13 of the Uniform Disposition of Unclaimed Property Act (765 ILCS 1025/8, 13 (West 2004); 765 1025/11 (West 2004), as amended by Public Act 94-686, effective November 2, 2005).
Informal Opinion No. I-06-008 Issued January 25, 2006
Status of Capitol Police Investigators for Purposes of Social Security Exemption
Persons holding the position of Capitol Police Investigator in the Office of the Secretary of State Department of Police are eligible for inclusion in the alternative retirement annuity formula provided for in section 14-110 of the Illinois Pension Code (40 ILCS 5/14-110 (West 2004), as amended by Public Act 94-004, effective June 1, 2005).
Informal Opinion No. I-06-009 Issued January 25, 2006
Sharing of Confidential Information by SHOCAP Committee Members
A physician who has signed an interagency agreement with a Serious Habitual Offender Comprehensive Action Program (SHOCAP) may be a member of a SHOCAP Steering Committee and, as such, may receive confidential information about SHOCAP clients, in accordance with the interagency agreement and the comprehensive, information sharing order entered by the court, but may only share general medical information and may not disclose information gained through doctor-patient confidentiality.
Informal Opinion No. I-06-010 Issued January 25, 2006
Felony Forfeiture of Pension Benefits
The felony conviction of an employee of the Illinois Department of Corrections for the offenses of uttering and possessing counterfeit and forged securities did not relate to or arise out of and was not connected with her employment as a correctional officer. Therefore, she was not required to forfeit her retirement benefits.
Informal Opinion No. I-06-011 Issued January 26, 2006
Compatibility of Offices –Community College District Trustee and Regional Board of School Trustee
Because of the potential conflict of duties, an individual may not serve simultaneously as both a community college district trustee and a member of a regional board of school trustees because the individual would not be able to represent the interests of both entities adequately, fully, and faithfully.
Informal Opinion No. I-06-012 Issued January 31, 2006
Appointment of Inspectors
The Director of the State Police has the authority to appoint inspectors, regardless of whether the individual inspector’s full time duties are related to drug enforcement or to other laws enforced by the Department.
Informal Opinion No. I-06-013 Issued January 31, 2006
Compatibility of Offices – County Board Member and School Board Member
The offices of county board member and school board member in a county with over 40,000 inhabitants are incompatible. If a county board member, during his or her term of office, is elected to the incompatible office of school board member, the election to the school board is void under section 1 of the Public Officer Prohibited Activities Act. If a school board member, during his or her term of office, is elected to the office of county board member, acceptance of the county board position is an ipso facto resignation of the school board position.
Informal Opinion No. I-06-014 Issued February 2, 2006
Funding of Regional Office of Education
Although no specific level of funding is prescribed by statute, each of the county boards of a consolidated, multi-county regional office of education is under a duty to appropriate sufficient funds to ensure that the regional superintendent can carry out the duties prescribed by law in the operation of the regional office of education.
Informal Opinion No. I-06-015 Issued February 2, 2006
Application of Medicare Tax to Employees Who Change Employing Agencies
An employee who left employment with the State Board of Higher Education to accept new employment with Illinois State University qualified as an individual engaged in continuous State service before April 1, 1986, and was therefore excepted from having to pay the Medicare Tax on income under section 3121(u)(2)(C) of the Federal Insurance Contribution Act (26 U.S.C. §3121(u)(2)(C) (2004)).
Informal Opinion No. I-06-016 Issued February 2, 2006
Surcharge on Residents’ Water Bills for Maintaining Municipal Swimming Pool
Although a non-home-rule municipality with less than 500,000 may operate and maintain a swimming pool, may charge and collect reasonable fees for the use of their swimming pools, and may level a tax for establishing, maintaining and conducting recreation systems when the electors have provided their approval, a municipality does not possess the statutory authority to add a surcharge to its residents’ water bills for the purpose of maintaining a municipal swimming pool.
Informal Opinion No. I-06-017 Issued February 24, 2006
Rebate or Abatement of Surplus Property Tax Funds
A non-home-rule county does not possess the authority to provide a fixed figure general property tax rebate or abatement to address the accumulation of surplus property tax funds.
Informal Opinion No. I-06-018 Issued February 24, 2006
Compatibility of Offices – School Board Member and Village Zoning Board of Appeals Member
Because of the potential conflict of duties, an individual may not serve simultaneously as both a school board member and a village zoning board of appeals member because the individual would not be able to represent the interests of both entities adequately, fully and faithfully.
Informal Opinion No. I-06-019 Issued March 10, 2006
Emergency Medical Services Personnel Serving as Deputy Coroners
There is no statutory prohibition against simultaneous service as a deputy coroner and an Emergency Medical Services (EMS) System employee. When an individual who is employed by an EMS System also serves as a deputy coroner, the coroner and the EMS System should assess whether there are any conflicts in their respective policies and protocols.
Informal Opinion No. I-06-020 Issued March 10, 2006
Township Zoning Board of Appeals As Quasi-Adjudicative Body
In some circumstances, a township zoning board of appeals functions as a quasi-adjudicative body and may hold a closed meeting pursuant to a subsection 2(c)(4) of the Open Meetings Act (5 ILCS 120/2(c)(4) (West 2004)) to consider evidence or testimony it has received. Deliberations with respect to special use permits involve a quasi-judicial determination of facts as applied to existing requirements of law. Variances and zoning amendments, however, are a legislative function and would not satisfy the criteria for the closed meeting exception.
Informal Opinion No. I-06-021 Issued March 13, 2006
Compatibility of Offices – Mayor and Police Chief
Section 3.1-15-15 of the Municipal Code (65 ILCS 5/3.1-15-15 (West 2004)), which generally prohibits a mayor from holding another municipal office, prevents a mayor from simultaneously serving as police chief of the same municipality. The common law doctrine of incompatibility would also preclude the simultaneous holding of the office of mayor and police chief because of a conflict in duties between the two offices.
Informal Opinion No. I-06-022 Issued March 16, 2006
Authority of Emergency Telephone System Board to Purchase Real Estate
Emergency telephone system boards have not been granted the necessary statutory authority to purchase or hold real property.