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

March 2011, vol. 12, no. 3

Attorney General issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2009 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. 10-001 through 10-003 and informal opinion Nos. I-10-009 through I-10-014 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. 10-001

Issued December 17, 2010

Public Library District’s Operation of a Raffle

Special districts, such as public library districts, possess only those powers expressly granted to them by the Constitution or by statute, together with those powers necessarily implied therefrom. Under the Public Library District Act of 1991, public library districts do not possess the requisite authority to operate a raffle. Therefore, the Schaumburg Township Public Library District may not receive a raffles license, nor may it operate a raffle under current Illinois law. 230 ILCS 15/2 (West 2008). < 001.pdf>.

Opinion No. 10-002

Issued December 29, 2010

Acceptance of Mexican Consular Identification Cards by a Notary Public

Notaries public are State officers under section 10 of the Consular Identification Document Act (the Identification Act). As such, they are required to accept Mexican consular identification cards from Mexican nationals for identification purposes with limited exceptions. Section 6-102 of the Illinois Notary Public Act, which provides that identification documents include those “documents * * * issued by a state or federal government agency,” was not intended to limit those documents which notaries public may accept for identification purposes generally, but rather was intended to restrict documents used as identification in certain real estate conveyances in Cook County, as contemplated by section 3-102 of the Notary Public Act. Accordingly, construing the Notary Public Act and the Consular Identification Document Act so as to give effect to both statutes, notaries are required to accept the Mexican consular identification card for identification purposes, subject only to the exceptions set out in section 10 of the Identification Act and for real estate transactions contemplated by section 3-102 of the Notary Public Act. 5 ILCS 230/10 (West 2008); 5 ILCS 312/3-102, 6-102 (West 2008). < 002.pdf>.

Opinion No. 10-003

Issued December 30, 2010

Authority to Contract with Private, Not-For-Profit Corporations for Auxiliary Police Services

While the Illinois Municipal Code authorizes municipalities to appoint auxiliary police officers, neither the Illinois Constitution of 1970, the Illinois Municipal Code, nor any other State statutes grant non-home-rule municipalities the authority to contract with private, not-for-profit corporations, private security firms, or other private business entities for the provision of auxiliary police services. Although home rule municipalities may appoint auxiliary police officers, home rule municipalities do not possess, as an exercise of their home rule powers, the authority to contract with private, not-for-profit corporations, private security firms, or other private business entities for auxiliary police services and to grant the entity’s unidentified employees or members the authority to carry firearms and wear peace officer style uniforms, unless specific employees or members are properly appointed as auxiliary police officers and successfully complete all necessary training. Ill. Const. 1970, art. VII, §§6, 10; 65 ILCS 5/3.1-30-5; 3.1-30-20 (West 2008). < 003.pdf>.

Informal Opinion No. I-10-009

Issued July 30, 2010

County Board Member’s Interest in Wind Energy Company Seeking a Special Use Permit Whether a county board member who has contracted with a developer for the use of his property for the erection of wind towers for a proposed wind energy conversion system has a conflict of interest with regard to the county board’s consideration of and vote on other wind energy conversion system projects proposed by the same developer or other wind energy conversion systems proposed generally is a question of fact.

Informal Opinion No. I-10-010

Issued August 30, 2010

Compatibility of Offices –County Board Member and Assistant Public Defender

The offices of assistant public defender and county board member are incompatible. Assistant public defenders are deemed to be public officers in Illinois. Section 1 of the Public Officer Prohibited Activities Act (the Act) prohibits a county board member from serving in another public office, unless otherwise authorized by law. If an assistant public defender were to be elected to the office of county board member, the appointment as an assistant public defender would be void under section 1 of the Act. It is also impermissible to hold the positions of assistant public defender and county board member simultaneously under section 3 of the Act. 50 ILCS 105/1 (West 2008); 50 ILCS 105/3 (West 2009 Supp.), as amended by Public Act 96-1058, effective July 14, 2010.

Informal Opinion No. I-10-011

Issued September 9, 2010

State’s Attorney as a “Law Enforcement Agency” for Purposes of the Reciprocal Reporting Requirements of the School Code and the Juvenile Court Act of 1987

The term “law enforcement agency” as used in sections 10-20.14 and 22-20 of the School Code and sections 1-7 and 5-905 of the Juvenile Court Act does not include the State’s Attorney’s office or any part thereof. To conclude otherwise would render language in each of the statutes superfluous. Because neither a State’s Attorney’s office nor a unit thereof is considered to be a law enforcement agency, for purposes of these provisions, it is unnecessary to address whether records of the State’s Attorney’s office constitute “law enforcement records” under section 5-915 of the Juvenile Court Act. 105 ILCS 5/10-20.14, 22-20 (West 2008); 705 ILCS 405/1-7, 5-905 (West 2009 Supp.); 705 ILCS 405/5-915 (West 2009 Supp.).

Informal Opinion No. I-10-012

Issued September 9, 2010

Applicability of FOIA to the Circuit Clerk; Exclusion of Information in Court Records under the Privacy of Child Victims of Criminal Sexual Offenses Act

Court files maintained by a circuit clerk are not subject to the Freedom of Information Act (FOIA), because FOIA does not apply to the judiciary and circuit clerks are members of the judicial branch of State government. Under the Clerks of Courts Act, however, all court records are to be “open to inspection” and examination. The Privacy of Child Victims of Criminal Sexual Offenses Act (the Privacy Act) limits the provision of free access to court records, by requiring a circuit clerk to exclude the name of any child victim of a criminal sexual offense from any requested court record. Therefore, it is proper for a circuit clerk to redact a child victim’s name from a court record involving a criminal sexual offense. In the absence of a statutory period otherwise providing, the White County circuit clerk’s procedures for responding to requests for court records containing information excluded from disclosure under section 3 of the Privacy Act within five days of receipt are reasonable. 725 ILCS 190/3 (West 2008); 5 ILCS 140/2 (West 2009 Supp.), as amended by Public Act 96-1000, effective July 2, 2010.

Informal Opinion No. I-10-013

Issued November 16, 2010

Residency Requirement for County Health Department Employees and for the Employees of the County’s Elected Officials

In the absence of a statutory provision, a county board may not apply an ordinance requiring the county’s employees to establish or maintain residency within the county to the employees of the county’s elected officials, who possess internal control over the operation of their offices, or to the county’s health department. 55 ILCS 5/3-2003.2, 3-3003, 3-5005.2, 3-6018, 3-9006, 3-10005.1, 5-25001, 5-25012, 5-25013, 5-25015 (West 2008); Ill. Const. 1970, art. VII, §4.

Informal Opinion No. I-10-014

Issued December 7, 2010

Proper Distribution of Fees Collected Pursuant to Section 5-1101(d-5) of the Counties Code

Subsection 5-1101(d-5) of the Counties Code authorizes counties to impose a $10 fee on a judgment of guilty or a grant of supervision entered under section 5-9-1 of the Unified Code of Corrections, provided that the fees are placed in the county general fund and used to finance the county drug court, the county mental health court, or other specified court use. Section 27.6 of the Clerks of Courts Act sets forth a statutory fee disposition formula for a limited class of traffic, criminal, and quasi-criminal offenses. To the extent that fees collected under subsection 5-1101(d-5) relate to the offenses specified in section 27.6 of the Clerks of Courts Act, the distribution method set forth in subsection 5-1101(d-5) controls. 55 ILCS 5/5-1101(d-5) (West 2009 Supp.), as amended by Public Act 96-924, effective June 14, 2010; 705 ILCS 105/27.6 (West 2009 Supp.), as amended by Public Act 96-1175, effective September 20, 2010. ■