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

June 2009, vol. 10, no. 4

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2007 Supp.)), 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 opinion Nos. 08-001 through 08-004 and informal opinions I-08-023 through I-08-030 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. 08-001

Issued August 7, 2008

Redistricting After a Special Census

A municipality must immediately redistrict if the results of an “official census” show that it has the requisite number of inhabitants to authorize it to increase the number of aldermen. While the number of aldermen per municipality is generally based on the number of inhabitants in the municipality, certain exceptions apply. Subsection 3.1-20-10(b) of the Illinois Municipal Code authorizes certain municipalities which have redistricted pursuant to a “new federal decennial census” to adopt ordinances or resolutions restricting the number of aldermen to one step below the normally required number. Because subsection 3.1-20-10(b) is limited to Federal decennial census results, a municipality which has redistricted pursuant to a special census may not adopt such a resolution or ordinance. 65 ILCS 5/3.1-20-10(b) (West 2006); 65 ILCS 5/3.1-20-25(c) (West 2007 Supp.).

Opinion No. 08-003

Issued December 23, 2008

Relocation of a “Retail Tobacco Store” under the Smoke Free Illinois Act

If an existing business that qualifies for the retail tobacco store exemption under section 35 of the Smoke Free Illinois Act relocates after January 1, 2008, the business will be subject to the same limitations as a retail tobacco store that begins operating after that date. 410 ILCS 82/35 (West 2007 Supp.).

Opinion No. 08-004

Issued December 31, 2008

Payment of Unexpended Proceeds from Sale of Medical District Property into State Treasury

For purposes of section 10 of the Illinois Medical District Act (the Act), the term “expended” means paid out or actually spent. Consequently, section 10 of the Act requires that, by July 10 of each year, the Illinois Medical District Commission transmit to the State Treasury all proceeds from the sale of property on hand as of June 30, in excess of $350,000, that were neither paid out nor necessary to satisfy revenue bond obligations. Although the Commission may additionally retain funds necessary to pay enforceable contractual obligations existing as of June 30 that will be paid no later than September 30 of that year, any such funds not actually paid out by September 30 must be transmitted to the State Treasury for deposit no later than October 10. 70 ILCS 915/10 (West 2006).

Informal Opinion No. I-08-023

Issued August 7, 2008

Restrictions on City Council Members Who Own Property Located Within a TIF District

Subsection 11-74.4-4(n) of the Illinois Municipal Code prohibits city council members who own property located in an existing redevelopment project area from voting on or taking any other official action in connection with matters concerning a redevelopment plan, a redevelopment project, or the redevelopment project area, unless one of the statutory exceptions applies. 65 ILCS 5/11-74.4-4(n) (West 2006).

Informal Opinion No. I-08-024

Issued August 14, 2008

Procurement of and Accounting for Contracts for Consulting Services

The Statewide Accounting Management System (SAMS) and the Illinois Procurement Code serve different purposes; the classification of a transaction in one does not control or mandate any particular treatment of a transaction in the other. Consulting services generally constitute “professional and artistic services” under the Procurement Code. Only qualifying “professional and artistic services” are required to be procured in accordance with article 35 of the Procurement Code. The treatment of a particular contract as “professional and artistic” for purposes of the SAMS procedures of the Office of the Comptroller does not require that services be procured in accordance with article 35 of the Procurement Code. 30 ILCS 500/1-1 et seq. (West 2006); 44 Ill. Adm. Code §1.2035 (Conway Greene CD-ROM June 2003).

Informal Opinion No. I-08-025

Issued August 28, 2008

County Sheriff’s Authority to Impose a Surcharge on Municipalities to Cover Expenses Associated with Providing Dispatch and LEADS Services

Absent a statutory grant of authority, a sheriff may not unilaterally impose a surcharge or similar type fee on a municipality to cover the costs associated with providing dispatch and LEADS services to municipalities. A county and a municipality, however, may enter into an intergovernmental agreement for the provision of authorized services. Under the terms of that contract, a municipality could agree to compensate a county for the costs of providing dispatching and LEADS services. A sheriff is under no statutory duty to provide non-emergency dispatch and LEADS services to a municipality, and he or she may discontinue the provision of those services at any time. 55 ILCS 5/4-5001 (West 2007 Supp.).

Informal Opinion No. I-08-026

Issued September 25, 2008

Applicability of Statutory Public Defender Malpractice Immunity and Indemnification to Private Court-appointed Counsel for the Indigent

Neither section 5 of the Public and Appellate Defender Immunity Act nor section 5-1003 of the Counties Code is applicable to attorneys who are appointed by the court to represent indigent defendants or minors in cases in which a public defender is deemed to have a conflict of interest. Therefore, neither statute provides immunity to, or indemnification from, malpractice claims brought against a court-appointed private attorney. 55 ILCS 5/5-1003 (West 2006); 745 ILCS 19/5 (West 2006).

Informal Opinion No. I-08-027

Issued October 2, 2008

Compatibility of Offices – County Board of Health Member and City Council Member

Because of a potential conflict in duties, the offices of city council member and county board of health member are incompatible. 55 ILCS 5/5-25013 (West 2006).

Informal Opinion No. I-08-028

Issued October 30, 2008

Authority of the State Board of Elections to Collect Monetary Penalties Assessed Against Political Committees

Pursuant to rules promulgated by the State Board of Elections, the Board must collect past due accounts in accordance with the Illinois State Collection Act. Pursuant to the Collection Act, each State agency is responsible for collecting past due accounts “through all reasonable means.” The phrase “all reasonable means” is limited to collection actions which are either specifically prescribed by law and/or administratively reasonable. Because the Collection Act delegates contracting with private collection agencies to the Debt Collection Bureau, and because the State Board of Elections is not otherwise authorized to contract with private collection agencies, the Board may not contract with private collection agencies to collect outstanding fines. 10 ILCS 9/10 (West 2007 Supp.); 30 ILCS 210/3 (West 2006); 30 ILCS 210/5, 10 (West 2007 Supp.).

Informal Opinion No. I-08-029

Issued November 20, 2008

Circuit Court Judge’s Authority to Solemnize Marriages Statewide

A judge for the Circuit Court of Cook County is authorized to solemnize marriages anywhere within the State of Illinois. 750 ILCS 5/209 (West 2006).

Informal Opinion No. I-08-030

Issued December 11, 2008

Offense Relating to Parking or Registration under Section 3-707 of the Illinois Vehicle Code

An “offense relating to parking or registration” refers to, among other things, an offense connected to or having to do with the registration certificates, registration plates, or registration stickers issued to motor vehicles. A violation of section 3-707 of the Illinois Vehicle Code, which generally prohibits the operation of an uninsured motor vehicle on the State’s public highways, does not constitute “an offense relating to parking or registration,” as that phrase is used in subsection 5-9-1(c) of the Unified Code of Corrections. As a result, a person convicted of violating section 3-707 is not exempt from the additional penalty authorized by subsection 5-9-1(c) of the Unified Code of Corrections. 625 ILCS 5/3-707 (West 2007 Supp.), as amended by Public Act 95-876, effective August 21, 2008; 625 ILCS 5/7-601 (West 2006).