MarkMcCoy.com - - Articulate Anarchy, Reasoned Rebellion, Paroxysmal Philosophy

[My Commentary] So, if we look at it in these terms, we could say that Ford is a corporation (municipality) that is owned by the shareholders (Citizens/electors) who in turn elect the Officers, or Board (City Council, Mayor...) to perform the duties set forth in the Charter which were written to control the function of the "body" in achieving the ends of the shareholder/citizen. This body, in turn, passes ordinances (By-laws) that regulate the functions of that body in meeting the objectives of the shareholder/citizen. The shareholders believe that their dividends (benefits) are being wasted on providing health care coverage to workers (City employees) who smoke, and therefore want to make Ford a non-smoking company (municipality). The Board of Ford (City council) passes an ordinance (By-law) that prohibits smoking for employees of Ford (City employees). Now, does that mean that Ford can force the smoking shareholders to quit smoking as well? No. The shareholders are not subject to the regulations governing the operation of the corporate body of Ford, the same way that Citizens are not subject to the regulations (ordinances) of the corporate body (Collinsville).

So, how do we, the People, create a government that is laid out with a charter and by-laws for the purpose of securing our freedoms and liberty, as well as performing in a collective capacity that which would be otherwise inefficient or cumbersome for us to perform individually? Why, you take up "residency", of course. Normally, Citizens retain all of their natural rights that are protected by the Constitution. However, if you want to derive any of the "corporate benefits" of the "corporation", you must become a resident of that corporation and therefore subject to the governing by-laws of that corporation. You do not need to be a resident to walk into a public library and read a book. However, in order to take that book out of the library's control and have it entrusted to you for safe-keeping and return, you must be a resident of that corporate body which subjects you to the ascribed penalties for violating your agreement with the library for the use and safe return of that book. That library card, that you have to sign (give your permission and therein claim the status of resident) your name and claim residency. That contract is then enforceable with fines and punishment for your violating any provision of that agreement.

Residents derive benefits or exercise privileges that Citizens do not. If your tax dollars are going to fund a function of government then you have paid your way and are asking for nothing more than a Citizen is entitled to. However. if you are deriving a benefit that cannot be traced to a service provided through your payment of taxes, then you are acting as a resident. Most of the things provided by government in its proper capacity are paid by our taxes, i.e.., water, sewer, trash, roads...etc. The City gets you to claim the status of resident in order to receive these services, which is a trap, but you are not automatically conscripted to the ordinances unless they specifically apply to a particular benefit derived.

1. [1.3] Elections and Referenda

By necessity, the matter of certain elections and referenda also is discussed in this chapter.

While the specific statutory requirements with which there must be compliance are noted, it is

generally understood that such referenda usually are commenced by the filing of a petition with

the circuit court, which must then (a) conduct a hearing, (b) fix a time and date for an election on

the given proposition, (c) publish notice of election, (d) canvass the election returns, and (e)

judicially determine the election result.

2. [1.4] Notice Procedure

Procedures for the giving of proper notice of election in specific instances usually are

included in the applicable statutes. However, in summary, the usual manner of providing notice

of election is by either (a) publication thereof at least once, not more than 30 nor less than 15 days

in advance of the election (referendum), in one or more newspapers published in the city or

village or, if no newspaper is published in the city or village, then in one or more newspapers

with a general circulation in the city or village; or (b) in municipalities with less than 500

population in which no newspaper is published, posting the notice of election in three prominent

places within the municipality.

3. [1.5] Multiple Petitions

Sometimes more than one petition to form a city or a village or to change the existing form of

incorporation may be filed praying that different propositions be presented to the electorate. For

example, if one petition requests a vote on adoption of the commission form and another petition

requests a vote on the adoption of the managerial form, both propositions may be submitted at the

same election, but each proposition must be stated separately, and in the event they conflict with

one another, the proposition receiving the larger majority is adopted. Illinois Municipal Code §5-

1-13. See also §1.34 below regarding multiple petitions to incorporate a portion of a village or

incorporated town as a new village.

II. ORGANIZATION OF MUNICIPALITIES

A. [1.6] General Law

Before 1870, every city, village, or other incorporated town was formed by a special charter

or special act of the state legislature. After the adoption of the 1870 Illinois Constitution, in which

this type of special charter or act creating municipalities was prohibited, the Illinois legislature

enacted a general Cities and Villages Act, passed by the 27th General Assembly in 1872. Because

the 1870 Constitution provided that no act could be broader than its title, the Cities and Villages

Act so adopted and passed by the General Assembly was limited in its applicability to cities and

villages and not to incorporated towns. As a result, since 1872 the only type of “incorporated

town” has been a city or a village because the only methods of incorporation available are those

established in the Cities and Villages Act.

[My Commentary] Confused? Allow me to explain. The 1870 Constitution prohibited, though the use of special charters, the incorporation of:

1. Cities

2. Villages

3. Towns

Nowhere in the 1870 Constitution does it say that the legislature "may" incorporate "anything", it merely says that the legislature "may not" so charter these things. So, the legislature passed an act which allowed for the incorporation of "Cities and Villages", but not "Cities, Villages, and Towns". Since the 1870 Constitution said that no act can be broader than its title, the "Cities and Villages Act" was limited to Cities and Villages instead of Cities, Villages and Towns.

This is like the constitution saying that the state may not regulate cats, dogs, and hamsters; but the legislature creates the Cats and Dogs Act, which does not regulate hamsters. Since the title of the act does not include hamsters, the constitution was not violated by the act, because they are only regulating Cats and Dogs. I believe that the spirit of the 1870 Constitution could be interpreted to mean that the incorporation of "ANY" type of municipality would not be allowed. Otherwise, why wouldn't the constitution state that towns would not be incorporated, but Cities and Villages would?

From 1870 to 1970, all municipalities in Illinois were subject to the Cities and Villages Act, a general incorporation act that enumerated the governing powers given to all cities and villages in the state, prohibited special legislation, and instead reserved powers exclusively to the state legislature. It was during this time that Collinsville became incorporated as a City.

As a result, Collinsville is statutorily considered to be properly incorporated pursuant to State statutes under the following:

(65 ILCS 5/1‑1‑3) (from Ch. 24, par. 1‑1‑3)
Sec. 1‑1‑3. All existing municipalities which were incorporated or which changed their corporate organization under "An Act to provide for the incorporation of cities and villages," approved April 10, 1872, as amended, and all existing municipalities which were incorporated under any general act prior to July 1, 1872, shall be treated as properly incorporated under this Code.

Of course, the 1970 Constitution does define what a municipality is, to wit:

SECTION 1. MUNICIPALITIES AND UNITS OF LOCAL GOVERNMENT
"Municipalities" means cities, villages and incorporated
towns. "Units of local government" means counties,
municipalities, townships, special districts, and units,
designated as units of local government by law, which
exercise limited governmental powers or powers in respect to
limited governmental subjects, but does not include school
districts.
(Source: Illinois Constitution.)

It may be wise to assume that the 1970 constitution is considering only, 1.) Pre-1870 incorporated cities, villages and towns; 2.) Pre-1870 incorporated cities, villages and towns, as well as post 1872 incorporated Cities and Villages established under the Cities and Villages Act.

So, the 1870 Illinois Constitution forbade the use of special charters for the use of incorporating cities and villages. In order to incorporate prior to 1870, special legislation was needed. The legislature enacted the Cities and Villages Act which made the rules of incorporation general in nature and not special. This is not necessarily a bad thing. I question how to reconcile those chartered municipalities, such as Collinsville, that existed prior to 1872 as incorporated villages; operating on a charter set forth by the legislature, now abandoned and now consolidated into the general municipal definition of the State Statutes. I have no problem with local governance. However, corporations operate under special law, and not necessarily under constitutional law. Even though the legislative act for creating such a creature exist within the purview of the legislature, such creatures in-and-of themselves are not exercising constitutional authority in as much as they are administrative rules limited to special subjects.

It is well settled that the construction or creation of a municipal corporation is essentially a

legislative act. The powers of government and the method of their exercise can be spawned only

from the state legislature pursuant to existing regulations and limitations imposed on the General

Assembly in the Constitution. See Alarm Detection Systems, Inc. v. Village of Hinsdale, 326

Ill.App.3d 372, 761 N.E.2d 782, 260 Ill.Dec. 599 (2d Dist. 2001); Queenwood East Sheltered

Care Home, Ltd. v. Village of Morton, 94 Ill.App.3d 51, 418 N.E.2d 472, 474 – 475, 49 Ill.Dec.

618 (1981); and Two Hundred Nine Lake Shore Drive Building Corp. v. City of Chicago, 3

Ill.App.3d 46, 278 N.E.2d 216, 219 (1st Dist. 1971), all citing Father Basil’s Lodge, Inc. v. City

of Chicago, 393 Ill. 246, 65 N.E.2d 805, 810 (1946). See also City of Chicago v. Santor, 30

Ill.App.3d 792, 334 N.E.2d 176 (1st Dist. 1975); People ex rel. Curren v. Wood, 391 Ill. 237, 62

N.E.2d 809 (1945). As a result, the general regulations concerning the methods and procedures of

incorporation as well as the necessary preexisting conditions are all contained in the Illinois

Municipal Code of 1961, which is the existing refinement of the Cities and Villages Act of 1872,

as amended and modified to date.

In that the organization of municipalities has always been the sole responsibility of the

General Assembly, there are some older statements of the judiciary that still govern today. In

1874, the Illinois Supreme Court stated: “Whether cities, towns or villages should be incorporated

. . . presents no question of law or fact for judicial determination. It is purely a question of policy,

to be determined by the legislative department.” City of Galesburg v. Hawkinson, 75 Ill. 152, 157

(1874). See also Eisele v. Morton Park District, 122 Ill.App.2d 226, 258 N.E.2d 127 (3d Dist.

1970).

The Illinois statutes, like those in many other states, require certain minimums and conditions

precedent, which include regulations to prevent a multiplicity of municipalities — both cities and

villages. The following sections discuss first the requirements for the selection of a name, which

apply to both cities and villages, and then considerations unique to incorporating each type of

entity.

B. Selection of Name

1. [1.7] Registration of Name

Before any other action may be taken on any given petition to incorporate territory as a city

or village, the name proposed for the city or village must be filed with the Secretary of State. The

mechanics involved in this filing are similar to those involved in securing a reservation of name

when incorporating a private corporation. The difference, however, lies in the fact that the

language contained in the Illinois Municipal Code is such that the securing of the Secretary of

State’s certificate (indicating that the proposed name for the city or village has not been adopted

for use by any other municipality) is jurisdictional. Code §2-1-7 indicates that no action on any

petition for incorporation may be taken until the Secretary of State has issued such a certificate,

commonly referred to as a “certificate of availability.”

2. [1.8] Taking Name

Illinois, like most states, provides that cities and villages must be named “City of

____________” or “Village of ____________.” Illinois Municipal Code §§2-2-12, 2-3-8.

Historically, however, if a municipality happens to call itself “the Town of ____________,” it has

been held that such designation did not invalidate the incorporation of the city or village. People

ex rel. Mohlenbrock v. Pike, 197 Ill. 449, 64 N.E. 393, 394 (1902). This concept of striving to

uphold the acts of any municipality whenever the question of name arises has also been adopted

by the state legislature with respect to the question of procedure of changing names of cities and

villages (Code §2-4-8).

In the field of municipal law, it is common for enabling legislation to recite that the courts

shall take judicial notice of the existence of the names of cities and villages. While Illinois law

does not specify that judicial notice shall be taken of the original name, it does recite that “[a]ll

courts shall take judicial notice of the existence of all cities and villages incorporated under this

Code” (Code §2-1-1) and that “[t]he courts shall take judicial notice of [a] change of name”

(Code §2-4-6). Therefore, the practical effect is that Illinois law is very closely aligned in this

area with the general theory of municipal law throughout our nation.

C. [1.9] Incorporation of Cities

The four sections of the Illinois Municipal Code dealing with the incorporation of cities (§§2-

2-5 through 2-2-8) have been thoroughly discussed and reviewed in In re City of Prospect

Heights, 8 Ill.App.3d 780, 291 N.E.2d 336 (1st Dist. 1972). In that case, the court held that the

first three sections must be read as a whole to ascertain their true meaning. While both §§2-2-6

and 2-2-7 have been amended (very likely as a result of the Prospect Heights decision), the

meaning, intent, and interpretation of those sections are reasonably clear, so the procedure

described in the following sections may be accurately described as the procedure to be followed

in the incorporation of cities.

In a subsequent case involving the same city, the court further elaborated on the question of

contiguous territory and again upheld the incorporation of the city notwithstanding the somewhatgerrymandered

boundaries involved in that incorporation. In re Incorporation of City of Prospect

Heights, 79 Ill.App.3d 378, 398 N.E.2d 378, 34 Ill.Dec. 703 (1st Dist. 1979).

Note that Code §§2-2-7 and 2-2-8 have since been amended to conform to the statutory

consolidation of elections, Supreme Court Rules, etc.

1. [1.10] Area

In regions containing fewer than 7,500 residents, an area may be incorporated if (a) the area

is a contiguous territory; (b) the area does not exceed four square miles; (c) the entire area is not

included within the corporate limits of any other municipality; (d) the area contains at least 2,500

persons, 2,000 of whom live in “immobile dwellings”; and (e) consent to the incorporation has

been received from any existing municipality that has a boundary line within one and one-half

miles of the boundary line of the proposed municipality. If the area contains 7,500 or more

residents, the consent of a neighboring municipality within one and one-half miles is not

necessary or prerequisite to the petition. Illinois Municipal Code §§2-2-5, 2-2-6.

However, if the area of contiguous territory (a) is in a county containing at least one million

inhabitants, (b) does not exceed four square miles, (c) is not already included within the corporate

limits of any municipality, (d) has residing within it all the registered voters of a township who

are not already included within the corporate limits of any municipality, and (e) is wholly

bounded by a single municipality, it need contain only more than 1,200 residents to incorporate.

Code §2-2-5.

Note that Code §2-2-1.1 defines “immobile dwelling” as “any dwelling place except a tent,

camp trailer, house car or house trailer whether or not such tent, camp trailer, house car or house

trailer is placed on a foundation or otherwise permanently affixed to the realty.”

2. [1.11] Petition

Provided the area requirements listed in §1.10 above can be met, any 200 electors residing in

that area may file a petition for incorporation addressed to the circuit court. The petition, which

must be filed with the clerk of the county in which the area is located, must set forth (a) a general

but definite description of the lands intended to be incorporated within the proposed city (for all

practical purposes this description should be identical to the description contained on the accurate

map that will have to be utilized and filed later in the proceedings); (b) the number of inhabitants

residing in the territory to be incorporated; (c) the name of the proposed city; (d) if the area

contains less than 7,500 residents, a statement that no part of the territory lies within one and onehalf

miles of the boundary line of any existing municipality that has not given its prior consent to

the incorporation; and (e) a request that the question of incorporation be submitted to the electors

residing within the limits of the proposed city. Illinois Municipal Code §2-2-6.

3. [1.12] Notice of Hearing

Within five days after the petition is filed, the court must enter an order fixing the time and

date for hearing on the petition not more than 35 days nor less than 25 days after the filing of the

petition. When the hearing date and time have been fixed by order of the court, the petitioners

must give notice of the hearing on the petition in the usual manner. See §1.4 above. The notice

must be specific and must be published in accord with the following portion of Illinois Municipal

Code §2-2-6:

This notice shall state that a petition for incorporation has been filed and give the

substance thereof including a description of the territory to be incorporated, the

number of persons residing within the territory, and the date fixed for hearing. This

notice shall be given by publication thereof at least once in one or more newspapers

published in the proposed city or, if no newspaper is published therein, then in one

or more newspapers with a general circulation within the proposed city.

4. [1.13] Hearing

Any person who owns real estate or resides within the territory proposed for incorporation as

a city may be heard in objection to the petition for incorporation by filing the objection after the

petition has been filed but no less than five days before the day set for hearing on the petition.

The objection must be on one or more of eight grounds, which are listed in Illinois Municipal

Code §2-2-7:

(1) that the territory described in the petition is not contiguous territory, (2) that the

territory or some portion thereof is already included within another municipality,

(3) that the territory has residing therein fewer than 7,500 residents and some

portion of the territory lies within 1½ miles of the boundary line of an existing

municipality which has not consented to the incorporation, (4) that the territory

exceeds 4 square miles, (5) that the petition is not signed by the requisite number of

electors [200], (6) that the requisite number of persons [2,500, of whom 2,000 reside

in immobile dwellings] do not reside within the territory described in the petition, (7)

that the description of the territory contained in the petition is inaccurate or

inadequate, or (8) that the incorporation adversely affects an existing municipality,

within 1½ miles of the boundaries of the territory described in the petition, with

respect to its ability to perform and render necessary governmental services.

Since the only persons usually objecting on the basis of item 8 above are municipalities, the

statute provides that this objection can be overcome by modification of the boundaries of the

territory described in the petition without dismissing the petition. With the other seven objections,

the burden is on the petitioner to prove the allegation of the petition or suffer the dismissal of the

entire petition.

5. [1.14] Referendum

If the court finds that the allegations in the petition have been sustained, it must render an

order designating at which election the question of incorporation will be submitted. Illinois

Municipal Code §2-2-7. The statute specifies the form of the ballot and indicates that the results

of the election are to be entered on the records of the court. Code §2-2-8.

6. [1.15] Election of Officers

If the majority of those voting cast votes in favor of incorporation, the court enters an order

(which for the purposes of appeal is considered a final order) causing the court clerk to perform

the same duties relating to elections as required of the municipal and/or county clerk by the

Election Code, 10 ILCS 5/1-1, et seq. Illinois Municipal Code §2-2-10.

As an aside, the first city officers hold their offices for the terms provided in the Code and

until their respective successors are elected and qualified at the next general municipal election.

Code §2-2-11.

D. Incorporation of Villages

1. [1.16] Area

Unlike the procedure for incorporating a city, the procedures for incorporating a village differ

depending on the population of the county in which the unincorporated area is located and of the

area to be incorporated, whether the area is a village in fact, or whether it has long been

incorporated as a town. In counties of less than 150,000 population based on the last preceding

federal census, any area may be incorporated provided (a) the area is a contiguous territory, (b)

the area does not exceed two square miles in overall size, (c) the area or any part thereof has not

already been included within the corporate limits of any municipality, (d) there are residing

within the area at least 200 persons living in dwellings other than those designed to be mobile,

and (e) the area is owned by at least 30 different owners. Illinois Municipal Code §2-3-5. In

addition, if the area contains fewer than 7,500 residents and lies within one and one-half miles of

the boundary line of any existing municipality, the consent of the existing municipality must be

obtained before any further steps to incorporate may be taken. Code §2-3-5 also regulates the

forms of the petition for incorporation as well as the number of electors who may file it. In re

Incorporation of Village to be Known as Village of Mitchell, 316 Ill.App.3d 284, 743 N.E.2d 571,

252 Ill.Dec. 703 (5th Dist. 2000); Kelley v. Village of Willowbrook, 38 Ill.App.2d 112, 186

N.E.2d 369 (2d Dist. 1962) (abst.). For a discussion of “contiguity,” see In re Proposed

Incorporation of Village of Volo, 229 Ill.App.3d 321, 592 N.E.2d 628, 170 Ill.Dec. 192 (2d Dist.

1992).

In counties of 150,000 or more residents as determined by the last federal census, any area

may be incorporated if the area (a) is a contiguous territory, (b) is at least four square miles in

overall size, and (c) contains at least 2,500 inhabitants residing in permanent dwellings. Code §2-

3-5a(a). However, if the county has less than 1,000,001 population and has adopted an official

plan and a suitable resolution, the county board must first determine that (a) the proposed

incorporation is compatible with the plan for the development of the county and (b) the territory

described in the petition constitutes a sufficient tax base to ensure the ability of the village to

provide all necessary municipal services to its inhabitants. Code §2-3-18. See also In re Village of

Forest Knoll, 148 Ill.App.3d 436, 499 N.E.2d 129, 101 Ill.Dec. 762 (2d Dist. 1986). It is worth

noting that if the area to be incorporated contains fewer than 7,500 residents and lies within one

and one-half miles of any existing municipality, the consent of the existing municipality must be

obtained, as in the incorporation of a village in a county of less than 150,000 population. Code

§2-3-5a(a). See also Town of Godfrey v. City of Alton, 33 Ill.App.3d 978, 338 N.E.2d 890 (5th

Dist. 1975).

In counties with more than 240,000 but fewer than 400,000 residents based on the last

preceding federal census, an area may be incorporated if the area (a) is a contiguous territory, (b)

is at least three square miles in overall size, and (c) contains at least 5,000 inhabitants residing in

permanent dwellings. No consent of neighboring municipalities is required. Code §2-3-5a(b).

In counties with more than 316,000 but fewer than 318,000 residents based on the last

preceding federal census, an area may be incorporated if it (a) is a contiguous territory, (b) does

not exceed one square mile, (c) contains between 1,000 and 1,500 inhabitants residing in

permanent dwellings, and (d) is located within ten miles of a county having a population of less

than 150,000. No consent of neighboring municipalities is required. Code §2-3-5a(c).

In a county with more than 400,000 but fewer than 410,000 residents based on the last

preceding federal census, an area as well as an additional area adjacent thereto and also within the

same township not exceeding four square miles may be incorporated as a village in the same

manner as provided in Code §2-3-5a(a), if the total area (a) is contiguous territory, (b) does not

exceed one square mile, (c) contains at least 400 inhabitants residing in permanent dwellings, and

(d) is located in a township adjacent to a county of less than 150,000 inhabitants as determined by

the last preceding federal census. Neither the consent of a municipality nor the finding of the

county board under §2-3-18, if otherwise applicable, need be obtained. Code §2-3-5a(d).

Once the area of the proposed village has been laid out to meet the requirements stated above,

the remaining steps are procedural, involving the filing of a petition, a hearing thereon, an

election, a canvass of votes, and a first election of officers. In the organizing of any municipality,

once the court has determined whether there has been compliance with the statutory requirements,

there is no other issue for any court to determine. In re Incorporation of Village of Capitol

Heights, 41 Ill.2d 256, 242 N.E.2d 247 (1968); People ex rel. County of DuPage v. Lowe, 36

Ill.2d 372, 224 N.E.2d 1 (1967).

2. [1.17] Petition

If the area sought to be incorporated lies in a county of less than 150,000 population, 35

electors may file the petition (addressed to the circuit court) with the circuit clerk of the county.

Illinois Municipal Code §2-3-5. If the area lies in a county of 150,000 or more, the petition must

be filed by 250 electors residing within the area to be incorporated. Code §2-3-5a(a). In either

case, the petition must contain

a. a legal description of the area intended to be included in the proposed village;

b. the number of residents in that area;

c. the name of the proposed village; and

d. a prayer that the question of the incorporation of the area as a village be submitted to the

electors residing within the limits of the proposed village. Code §§2-2-5, 2-3-5a(a).

If the area contains fewer than 7,500 residents and lies within one and one-half miles of the

limits of any existing municipality, the consent of that municipality must be obtained before the

area may be incorporated. Code §2-3-5a(a).

While the statute requires only “a definite description of the lands intended to be embraced in

the proposed village” when the area lies in a county of less than 150,000 population, it is

advisable to use a legal description contained on an accurate map drawn and drafted by a certified

land surveyor in any such filing in order to avoid any problems. Such a map of the land and

territory eventually will be needed in any event and should be attached to the petition as an added

precaution. See People ex rel. Cameron v. New, 214 Ill. 287, 73 N.E. 362 (1905). A legal

description is required in a county of 150,000 or more. Code §2-3-5a(a)(1).

3. [1.18] Hearing

Unlike the procedure for incorporating a city, when the petition has been filed, the court is

required to hear testimony and rule whether the area sought for incorporation is a village in fact.

Illinois Municipal Code §2-3-6. The courts have described a village as any assemblage in the

county of houses or dwellings, businesses, or both, whether or not situated on laid-out streets.

They have even gone as far as to suggest that the issue will be resolved by a ruling on whether the

area is in fact one that may be incorporated as a village as having met the area requirements.

People ex rel. County of DuPage v. Lowe, 36 Ill.2d 372, 224 N.E.2d 1 (1967). If the court rules

that the area does not meet the statutory requirements and is not a village in fact, the petition is

denied, and no subsequent petition may be filed within one year after the ruling is entered. If, on

the other hand, the court finds that the area is a village, the court enters an order finding that the

area constitutes a village in fact and the proposition is certified and submitted to the electors of

the area in the manner provided by the Election Code. Municipal Code §2-3-6.

4. [1.19] Referendum

The form of the ballot must be substantially as set forth in Illinois Municipal Code §2-3-6.

The election returns are made to and canvassing thereof done by the court. If the majority of the

votes cast are in favor of incorporation as a village, the area is incorporated as a village under the

Code, and the court orders the first election of officers. Code §§2-3-6, 2-3-7.

5. [1.20] Election of Officers

The order calling for the first election of officers must also fix the time and place thereof and

set forth all other acts with reference to the election as though it were a first election of officers of

a newly incorporated city. See §1.15 above. Once elected, the terms of the new officers cease

after their successors have been elected and qualified at the next regular election. Illinois

Municipal Code §2-3-7.

III. REORGANIZATION OF MUNICIPALITIES

A. [1.21] Change of Incorporated Town to Village

An “incorporated town” has been defined as a unit of local government organized under

special charter granted by the legislature before the adoption of the 1870 Constitution. Committee

of Local Improvements of Town of Algonquin v. Objectors to Assessment, 39 Ill.2d 255, 234

N.E.2d 778 (1968).

1. [1.22] Petition

In the event a town incorporated before the adoption of the 1870 Constitution desires to

change its entity to that of a village operating under the current Illinois Municipal Code, the

procedure to accomplish the change is relatively simple. All that is required is that 30 electors

residing within the incorporated town present the corporate authorities of the town with a petition

to the effect that the question of whether the town should become a village shall be submitted to

the electors within the town. The town board (corporate authorities) then certifies the question,

which shall then be submitted for an election on the matter that shall be conducted in the manner

prescribed by the Election Code. Municipal Code §2-3-1.

2. [1.23] Referendum

The form of ballot must substantially adhere to the form contained in Illinois Municipal Code

§2-3-2. Upon submission of the question to the voters, the corporate authorities must cause a

statement of the election results to be transcribed on the records of the town. Code §2-3-3. If a

majority of the votes are cast in favor of village government, the town is automatically

incorporated as a village under the general law. The existing town officers continue in office as

“like officers of the village” until their successors are appointed or elected under Code §2-3-4.

B. [1.24] Change of Charter Cities, Towns, and Villages to Municipalities Under General

Law

The Illinois Municipal Code has taken into consideration the fact that citizens may become

uneasy with living in a city or a village and may resolve to change the form of incorporation of

their particular municipality.

1. [1.25] Petition in Charter City

Whenever one eighth of the electors voting at the last preceding city election in a special

charter city incorporated before 1870 petition the city council to submit the question of whether

the city shall incorporate under the modern Illinois Municipal Code, the municipal clerk must

certify the question for submission to a vote of the electors of the city at an election to be held in

accordance with the Election Code. Municipal Code §2-2-1.

2. [1.26] Petition in Charter Town or Village

In any incorporated town or village having a population of at least 2,500 persons, including at

least 2,000 persons living in immobile dwellings, one eighth of the electors may petition the

president and board of trustees of the village to incorporate as a city, and then the reorganization

procedure will be identical to that for a special charter city. Illinois Municipal Code §2-2-4.

Unlike charter cities, however, a proposition reorganizing a given town or village as a city under

the Code may not be presented to the electorate more than once in four years. Id.

3. [1.27] Notice and Referendum

The mayor of a special charter city, incorporated town, or village shall publish a notice of

election in the usual manner. The form of ballots used at this election shall be substantially in the

form set forth in Illinois Municipal Code §2-2-3, and the question contained thereon shall be as

follows: “Shall the [City] [Town] [Village] of ______________ be incorporated as a city under

the general law?” The election judges shall make their returns to the corporate authorities, who

shall canvass the returns and cause the results of the canvass to be entered on the records of the

city, incorporated town, or village. If the majority of the votes cast favor incorporation as a city

under the general law contained in the Code, the city, incorporated town, or village, as the case

may be, is automatically incorporated as a city under the Code.

4. [1.28] Officers

If a special charter city votes to incorporate under the Illinois Municipal Code, its officers

remain in office until their successors are elected and have qualified. Code §2-2-3. However, if an

incorporated town or village votes to change its form of government to that of a city under the

Code, the change of form does not take effect until the city officers are elected and have qualified

at the next regularly scheduled election for officers. Code §§2-2-4, 2-2-9. The election must be

conducted in accordance with the Election Code, and the former officers of the town or village

must cause the result to be entered on the records of the new city. Municipal Code §2-2-9. The

city officers elected at the initial election serve until their successors are elected and have

qualified following the next general municipal election. Code §2-2-11.

C. Change of City to Village

1. [1.29] Petition and Referendum

The Illinois Municipal Code also deals with the change of any city to a village, stating that

upon the filing of a petition by one fourth of the electors of the city, the city clerk shall certify in

the manner provided in the Election Code the question for submission to the electors of whether

the city shall incorporate as a village. Municipal Code §2-3-9. Only one such referendum may be

held in any ten-month period. The question must be substantially in the form set out in Code §2-

3-9.

If a majority of votes cast at the election are in favor of the reorganization, then the city

automatically becomes a village under general law contained in the Code, retaining its name with

the word “Village” being substituted for the word “City.”

2. [1.30] Election of Officers

If the electors vote to reorganize, the officers of the former city hold their offices until the

next general municipal election at which village officers are elected and until their successors

have qualified. Illinois Municipal Code §2-3-9.

D. [1.31] Change of Portion of Any Village or Incorporated Town to Village

The Illinois Municipal Code also provides procedures for incorporation of part of a village or

part of an incorporated town as a village.

1. [1.32] Area

The area involved as part of a village or incorporated town must (a) lie on the border of the

village or incorporated town adjacent to the new village to be incorporated and (b) have at least

500 inhabitants “living in immobile dwellings other than those designed to be mobile.” In

addition, the original village or incorporated town must be left with at least four square miles of

territory and at least 500 inhabitants living in immobile dwellings. Illinois Municipal Code §2-3-

10.

NOTE: The definition of “immobile dwelling” for use in connection with incorporation of a

village found at Code §2-3-1.1 differs from the one for use in connection with incorporation of a

city. See §1.10 above; Code §2-2-1.1. Unlike the latter, the definition used for the incorporation

of a village specifies that house trailers placed on permanent foundations and assessed as realty

are deemed to be “immobile dwellings.”

2. [1.33] Petition

If the area requirements can be satisfied, then a petition must be presented to the circuit court

for the county in which the village or incorporated town is located asking that the question of

incorporating a part of that village or incorporated town into a new village under the Illinois

Municipal Code be submitted to the electors of the existing village or incorporated town. The

petition must be signed by at least 50 electors, but in the event that more than 500 votes were cast

by electors residing in the described territory at the last preceding election, the petition must be

signed by electors residing in the described territory equal to one tenth of the number of votes

cast in that territory at the last preceding general or municipal election. In addition, the petition

must set forth “(1) a definite description of the lands intended to be embraced in the proposed

village, (2) the number of inhabitants residing therein, and (3) the name of the proposed village.”

Code §2-3-10.

3. [1.34] Referendum

Upon the presentation of a valid petition for incorporation of a part of a village or

incorporated town, the court must consider the petition and enter appropriate orders for

certification and submission to the electors of the existing village or town. Illinois Municipal

Code §2-3-11. The question of incorporating the territory described in the petition may be

submitted at any regular election. Id.

Two or more petitions to separate part of the same town or incorporated village may be

submitted for action by vote at the same election, provided, however, that in the event any two

petitions embrace part of the same territory to be separated, the first such petition presented must

be the only one submitted to a vote. Code §2-3-12. Section 2-3-12 sets forth further provisions for

the procedures of bringing these petitions to the public for vote until one petition is carried or

until all petitions are voted down. Furthermore, if territory affected by an election regarding the

incorporation of part of a village or incorporated town is within the jurisdiction of the board of

election commissioners, then the election is to be conducted by that board rather than by the

corporate authorities of the village or incorporated town. Code §2-3-13. If a majority of the

electors in the village or incorporated town, as well as a majority of the electors residing in the

territory proposed to be incorporated as a new village, vote in favor of the incorporation, the

territory is automatically a new village with the name specified in the petition. Code §2-3-15. No

other election on the same question concerning the same territory may be held until ten months

have elapsed. Code §2-3-14; In re Petition of Village of Hickory Park, 10 Ill.App.2d 146, 134

N.E.2d 542 (2d Dist. 1956).

4. [1.35] New Officers

Upon the creation of the new village, the new officers are elected in the same way as the first

officers in a newly incorporated village. See §1.20 above. Until the election and qualification of

those officers, the officers of the original village or incorporated town have jurisdiction and

control of the new village. However, upon the election and qualification of the officers of the new

village, the terms of those officers of the old or original village or incorporated town who

continue to reside in the new village or incorporated town end. Illinois Municipal Code §2-3-16.

E. [1.36] Change of Name

Although the mere change of corporate name does not come close to effecting a

reorganization or change of incorporation (Catlett v. People, 151 Ill. 16, 37 N.E. 855 (1894)), the

subject is properly discussed here since a change of name when a city becomes a village or vice

versa is mentioned in §§1.27, 1.29, and 1.34 above. Furthermore, without the present enabling

legislation to provide the procedure recited in §§1.37 – 1.42 below, and before the 1870 Illinois

Constitution, it is doubtful that a change of name could have been accomplished without formal

reorganization, which might even have involved dissolution and later reincorporation.

1. [1.37] Petition

A municipality, like a private corporation or any natural person, can have several names by

which it is known but only one legal name as its corporate designation. If the citizenry desires to

change the name of a city or village, at least one half of the electors who voted for the officers of

the city or village at the last election can commence proceedings by signing a petition requesting

that the name of the city or village be changed and presenting it to the corporate authorities of the

municipality. Illinois Municipal Code §2-4-1.

2. [1.38] Certificate of Secretary of State

Following presentation of the petition described in §1.37 above, the corporate authorities of

that city or village must file the proposed name with the Secretary of State. If, after the proposed

name has remained on file with the Secretary of State for 60 days, it appears from information in

that office that the proposed name has not been adopted by any other municipality, the Secretary

of State shall grant a certificate (commonly referred to as a “certificate of availability”) so

indicating. Illinois Municipal Code §2-4-2. The information concerning the names of the

municipalities in the state should be readily available to the Secretary of State because the

Secretary is duty bound to keep a file of all of the names, arranged in alphabetical order. Code §2-

4-3. As a result, if the proposed name happens to be a name of another city or village in Illinois,

the petitioners will be informed of this fact by the Secretary, and thereafter the petitioners may

file another proposed name.

3. [1.39] Hearing on Petition

Only after the Secretary of State has issued the certificate of availability may the board of

trustees or city council fix the time when the petition is to be considered at a public hearing.

Notice of this hearing must be published at least once not more than 30 nor less than 15 days

before the hearing in one or more newspapers published in the municipality or, if no newspaper is

published in the municipality, then in one or more newspapers with a general circulation in the

municipality. In municipalities with less than 500 population in which no newspaper is published,

publication may be made by posting a notice in three prominent places within the municipality.

Whether the notice is published in a newspaper or by posting, the notice must state that a name

change has been requested, the time when the action on the petition will be taken, and that

objections, if any, will be heard at that time. Illinois Municipal Code §§2-4-4, 2-4-5.

4. [1.40] Filing of Ordinance

If the city council or village board of trustees determines that a name change is desirable,

“they shall make an order changing the name and adopting the name requested in the petition.”

Illinois Municipal Code §2-4-5. The corporate authorities then must file a copy of the order

making the change with the Secretary of State, who must publish notice of the name change in the

same manner set out in §1.39 above for publication of the notice of the hearing on the petition.

Code §2-4-6. At this time, courts take judicial notice of the name change. Id.

While the statute is silent as to whether the “order” must be in the form of an ordinance or a

resolution, it is better practice to advise the corporate authorities to pass an ordinance since the

term “order” is used. Under classical definitions and long-standing decisions in the courts,

resolutions or motions are not deemed to be laws and, hence, would not truly be “orders.” For

further discussion of this topic, see John J. Zimmermann, Whether Resolutions or Motions Are

Law, 10 Mun. Att’y 43 (1969).

5. [1.41] De Facto Change of Name

Under Illinois Municipal Code §§2-4-7 and 2-4-8, whenever the name of a municipality has

been changed under the procedure set forth in §§1.37 – 1.40 above, all of the proceedings, rights,

duties, and privileges shall be affected whether they are those of the municipality or those of third

parties dealing with the municipality. In fact, even if there has been no compliance with the

statutory procedure, the name of the municipality is changed, and all matters commencing under

the name as changed “shall be valid if they would have been valid if done under the old name.”

Code §2-4-8; People ex rel. Mohlenbrock v. Pike, 197 Ill. 449, 64 N.E. 393 (1902).

6. [1.42] Unincorporated Villages and Towns

The Illinois Municipal Code also recites a short procedure for changing the name of an

unincorporated town or village. In that instance, when a majority of electors residing in the

unincorporated town or village petition the circuit court of the county, the court may change the

name of that town or village provided that, first, a plat of the town or village has been filed with

the recorder and, second, the petitioners have complied with the provisions of Code §2-4-2

regarding the filing of the proposed name with the Secretary of State and the obtaining of a

certificate of availability. Code §2-4-9.

IV. [1.43] OPERATIONAL FORMS OF GOVERNMENT

The law concerning municipal corporations allows for various and sundry forms of

government. Villages and cities may elect trustees and aldermen at large or from districts or

wards. Village and city government may operate through the use of trustees and aldermen as

commissioners (see §§1.62 – 1.72), through a strong mayor (see §§1.73 – 1.79), or through a

manager or administrator (see §§1.53 – 1.61). Finally, with the advent of home rule under the

1970 Illinois Constitution, villages and cities may vary the statutory forms prescribed in the

Illinois Municipal Code and handle their own “government and affairs,” tailoring their own

systems of government to suit their needs by way of voter-approval through referenda. Flowers v.

City of Moline, 251 Ill.App.3d 348, 622 N.E.2d 38, 190 Ill.Dec. 628 (3d Dist. 1993); Perkins v.

City of Chicago Heights, 47 F.3d 212, 214 – 215 (7th Cir. 1995).

A. Special Charter and General Law Forms

1. [1.44] Special Charter

A few remaining cities and villages were founded before the effective date of the 1872 Cities

and Villages Act pursuant to authority contained in the 1870 Constitution. As indicated in §1.6

above, the only method of incorporation of cities, villages, and towns in those days was through a

special charter or special law passed by the General Assembly. From earliest times, in English

common law, a charter was a grant of rights and privileges from the Crown to any person or other

legal entity. In more modern times, the charter granting these rights and franchises is usually

given to a corporation by the sovereign power of the state legislature. BLACK’S LAW

DICTIONARY, p. 250 (8th ed. 2004). A charter differs from a constitution in that the former is

granted by the sovereign, while the latter is established by the people themselves. State

legislatures have power not granted the federal government under the United States Constitution

yet remain bound by their respective state constitutions.

2. [1.45] 1870 Constitution

Until Article IV of the 1870 Illinois Constitution came into being, the only method available

for creation of a municipality was to pass special legislation. Article IV, §22, of that Constitution

forbade the General Assembly to “pass local or special laws” in certain “enumerated cases,”

including “[i]ncorporating cities, towns or villages, or changing or amending the charter of any

town, city or village.” Clearly, the Constitutional Convention, in writing and formulating the

1870 Constitution, recognized that a general law could be made applicable to the incorporation of

all cities and villages, thereby paving the way for the enactment of the “Cities and Villages Act of

1872.” In passing this law, Illinois followed the lead of many of its sister states in providing a

general charter for all cities and villages incorporated thereunder.

3. [1.46] General Charter

In order for the more modern general law noted in §1.45 above to succeed as a substitute for

the special charter, it was essential to provide regulations to act as guidelines for cities and

villages so that they would not overstep the bounds of their authority. To accomplish this end, it

was necessary to set down in the law the purposes for which municipalities are generally created

and to identify those purposes by and through grants of power that would otherwise appear in the

special charters of old.

a. [1.47] Delegation of Authority

Cities and villages are created to care for the general health, safety, welfare, and morals of

their citizenry. However, if a municipality desires to legislate in order to meet these objectives,

specific authority under the Illinois Municipal Code is indispensable; the municipality cannot act

under its police power alone. The police power must be coupled with a less general and more

specific power granted by the state legislature. City of Des Plaines v. Gacs, 65 Ill.App.3d 44, 382

N.E.2d 402, 22 Ill.Dec. 82 (1st Dist. 1978); Rocking H. Stables, Inc. v. Village of Norridge, 106

Ill.App.2d 179, 245 N.E.2d 601 (1st Dist. 1969); Good Humor Corp. v. Village of Mundelein, 33

Ill.2d 252, 211 N.E.2d 269 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326

(1964); Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). For

example, as of this writing, most Illinois municipalities (necessarily excluding home rule units,

which have greater power) have the power to license dogs but have no such authority to license

cats. Code §11-20-9. In Greater Chicago Combine & Center, Inc. v. City of Chicago, No. 04 C

5429, 2004 U.S.Dist. LEXIS 25706 (N.D.Ill. Dec. 16, 2004), the plaintiff challenged Chicago’s

home rule ordinance prohibiting importing, selling, owning, keeping, or otherwise possessing any

live pigeon. The U.S. district court found that the Illinois statute on the subject disposed of the

plaintiff’s claim because the General Assembly had authorized cities to enact such ordinances.

510 ILCS 45/7. As a result, any attempt to legislate in an area in which there has been no

delegation of authority becomes a futile, useless act labeled “arbitrary and unreasonable.” This

concept, which has become known as “Dillon’s Rule” due to its enunciation in 1 John F. Dillon,

COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS §237 (5th ed. 1911),

requires that (aside from any outright constitutional grant of authority to local governmental

units) any statutory language delegating state authority be construed strictly. Specifically, when

statutes granting powers to municipal corporations are concerned, any fair and reasonable doubt

of the existence of a power has always been resolved against the municipality. LaSalle National

Bank v. Village of Brookfield, 95 Ill.App.3d 765, 420 N.E.2d 819, 51 Ill.Dec. 405 (1st Dist.

1981); Redmond v. Novak, 86 Ill.2d 374, 427 N.E.2d 53, 55 Ill.Dec. 933 (1981); Chicago School

Transit, Inc. v. City of Chicago, 35 Ill.2d 82, 219 N.E.2d 522 (1966); Houston v. Village of

Maywood, 11 Ill.App.2d 433, 138 N.E.2d 37 (1st Dist. 1956); Annot., 104 A.L.R. 1335 (1936). In

some instances, the state has refused to grant certain powers to municipal corporations; e.g., only

the state can make violations of law other than federal law a felony. Illinois Municipal Code §1-

2-1. In other instances, the control of the populace might be shared with local governmental

authorities; e.g., the state legislature has made it a crime for motorists to violate speed restrictions

but has allowed individual municipalities the right to set those speed restrictions within their

corporate limits. 625 ILCS 5/11-604; Code §11-40-1. In still other instances, the state may allow

for a complete duplication of regulations rather than a mere sharing in the control and power; e.g.,

some businesses can be made to procure local business licenses in addition to the necessary state

license providing the local authorities desire to enact the proper ordinances. Code §11-42-1, et

seq. Finally, the legislature may grant complete and total authority to local government for the

regulation and control of matters that the state could not feasibly and would not desire to

legislate; e.g., zoning matters presently are left to the sole control of political subdivisions within

the state. Code §11-13-1, et seq.

b. [1.48] Proper Exercise of Power

Dillon’s Rule (see §1.47 above) demands that some form of statutory enabling legislation

delegating authority to legislate in a given situation must exist along with the general authority

under the police power to preserve the health, safety, morals, and general welfare of the citizenry.

Regulations finally passed and approved by other than home rule authorities must take the form

required by the state legislature in that situation. It has long been a general rule of law that when

the legislature grants a municipality the power to do any act and further prescribes the manner in

which the power shall be exercised, the power must be exercised in that manner and not

otherwise. Maywood-Proviso State Bank v. City of Oakbrook Terrace, 67 Ill.App.2d 280, 214

N.E.2d 582 (2d Dist. 1966); Union National Bank v. Village of Glenwood, 38 Ill.App.3d 469, 348

N.E.2d 226 (1st Dist. 1976); Illinois Municipal Retirement Fund v. City of Barry, 52 Ill.App.3d

644, 367 N.E.2d 1048, 10 Ill.Dec. 439 (4th Dist. 1977); Chicago Union Traction Co. v. City of

Chicago, 207 Ill. 544, 69 N.E. 849 (1904); People ex rel. Conlon v. Mount, 186 Ill. 560, 58 N.E.

360 (1900). It is also a rule in the general law that notwithstanding the existence or nonexistence

of specific and additional requirements within the enabling legislation itself, any and all

ordinances passed by the local authorities must begin with the ordaining clause specified

separately under Illinois Municipal Code §1-2-2:

The ordaining clause of ordinances in cities shall be: “Be it ordained, by the City

Council of ____________.”

The ordaining clause of ordinances in villages shall be: “Be it ordained by the

President and Board of Trustees of the Village of ____________.”

Unless the charter of an incorporated town otherwise provides, the ordaining

clause of ordinances in incorporated towns shall conform as nearly as possible to

one of the forms specified in this section.

In Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614 (1908), there was a question as to the

validity of the action of the city council purporting to increase the number of police officers on

the police force. That action was shown by the following excerpt from the proceedings of the city

council:

“Ald. Cullerton presented the following order: ‘Ordered that the superintendent of

police be, and he is hereby, authorized to increase the number of police officers on

the police force by filling vacancies wherever they exist and are necessary, the total

number of officers on the force, however, after such increase is made, not to exceed

the number authorized to be appointed under the appropriation budget of 1901.’

Which was, on motion, duly passed by yeas and nays, as follows:” — followed by the

names of 66 aldermen voting yea and 1 voting nay. 85 N.E. at 616 – 617.

The appellee introduced in evidence, over the appellant’s objection, the appropriation

ordinance for the year 1901 showing the appropriation of $2.5 million for 2,500 police officers at

$1,000 each, also, the appropriation ordinances for the years 1903, 1904, 1905, and 1906,

showing appropriations in those years for, respectively, 2,380, 2,306, 2,278, and 2,196 police

officers. The court said:

It was error to admit this evidence. The statute requires the action of the city

council in providing for the election or appointment of officers, other than those

mentioned in the statute, to be by ordinance. It cannot act by mere resolution. The

order of the council of January 5, 1903, was only a resolution. It was not an

ordinance and did not purport to be one. It was not styled in accordance with

section 2 . . . which requires the style of ordinances to be: “Be it ordained by the city

council of. . . .” It purported to increase the number of police officers, but, if any

number of police officers had been theretofore authorized to be appointed, it must

have been done by ordinance, and that ordinance could not be amended or modified

by a resolution of the council. 85 N.E. at 617.

As noted above, the statute requiring an “ordaining clause” is the law, and this case has been

followed as controlling in City of Chicago v. Marsh, 250 Ill. 512, 95 N.E. 473 (1911), and in City

of Springfield v. Postal Telegraph-Cable Co., 253 Ill. 346, 97 N.E. 672 (1912). The case has also

been upheld numerous times. See, e.g., Naumovich v. Howarth, 92 Ill.App.2d 134, 234 N.E.2d

185 (4th Dist. 1968); Western Pride Builders, Inc. v. Koraska, 91 Ill.App.2d 458, 235 N.E.2d 313

(1st Dist. 1968); McCarty v. City of Rockford, 96 Ill.App.3d 531, 421 N.E.2d 576, 51 Ill.Dec. 941

(2d Dist. 1981).

4. [1.49] Recapitulation — Dillon’s Rule

The expression, explanation, and example of Dillon’s Rule in §§1.47 and 1.48 above are

meant to underscore and to emphasize further the importance of today’s general law as a

substitute for yesterday’s special charters. It must be remembered that any municipal corporation

achieves all of its powers from the charter under which it acts as a body politic and corporate. The

charter contains the fundamental or organic municipal powers and may even prescribe the form of

municipal organization. Again, before 1870, this charter was specially created, passed, and given

to each city, town, or village. Today, the charter is contained in the general law — the Illinois

Municipal Code and other statutory provisions together with the 1970 Illinois Constitution and

court decisions interpreting those documents.

B. [1.50] Aldermanic and Trustee Forms

With the evolution of the general law as we know it today in the Illinois Municipal Code, the

question of what must go into the charter has been replaced with the question of which of the

forms available under the Code will be adopted and undertaken. The first bridge to cross is

whether the new municipality will use an aldermanic or a trustee form. Without reference to the

contrary, if it is a city, it will use the aldermanic form of government; if it is a village, it will use

the trustee form.

1. [1.51] Differences Between Cities and Villages

The differences between cities and villages have been virtually eliminated. In a city, the

mayor is the chief executive officer, as is the mayor or president of a village. The functions and

duties of the executive in each of the forms are identical. Illinois Municipal Code §3.1-35-5. The

most salient difference remaining is that in a village the number of trustees is always six elected

at large (Code §3.1-25-5), while in a city the number of aldermen may vary from six to twenty

elected from wards, depending on the city’s population (Code §3.1-20-10), except as may

otherwise be provided by modification to allow trustees to be elected from districts and aldermen

to be elected at large. See §§1.52 and 1.56 below. Even this difference may not be as great as it

appears since the number of aldermen in a city may be reduced by one half by referendum. Code

§3.1-20-20. (As an aside, §3.1-20-20 also allows for the reinstatement of the full number of

aldermen by referendum.)

The term of office of the mayor, president, aldermen, and trustees in cities and villages is four

years, but each municipality of less than 500,000 population may adopt a two-year term for these

elected officials. Code §3.1-10-65.

The powers and duties of the trustees as individuals are identical to the functions and duties

of aldermen. Code §3.1-45-15. Likewise, the board of trustees has the same powers and duties as

a city council. Code §3.1-45-5.

The mayor or president with the advice and consent of the city council or board of trustees

may appoint (a) a treasurer, if the treasurer is not an elected position in the municipality; (b) a

collector; (c) a comptroller; (d) a marshal; (e) an attorney or corporation counsel; (f) one or more

purchasing agents or deputies; (g) the auxiliary policemen determined necessary by the corporate

authorities; (h) police matrons; (i) a commissioner of public works; (j) a budget director or budget

officer; and (k) other officers necessary to carry into effect the powers conferred on

municipalities. Code §3.1-30-5, et seq.

2. [1.52] Representation at Large vs. Representation by Wards or Districts

In effect, the real issue in the incorporation of cities and villages is never whether to be a city

or to be a village but rather whether to have aldermen or trustees initially elected at large or from

wards and districts. Hence, the political issue of running aldermen and trustees at large or from

districts determines whether a new municipality will be a city or a village because upon

incorporation, cities automatically are divided into wards, each being represented by two

aldermen. Illinois Municipal Code §§3.1-20-15 through 3.1-20-25. On the other hand,

immediately upon incorporation of a village, trustees are elected at large. Code §3.1-25-20. While

villages of 5,000 or more population may later wish to elect trustees from districts, this change of

form may be accomplished only by referendum. Code §§3.1-25-75, 3.1-25-80.

Before discussing the other forms, it should be noted that cities and villages can function very

well without adopting one of the more sophisticated of the various governmental forms available

— commission form, managerial form, strong mayor form, or other form allowed by the Illinois

Constitution.

C. [1.53] Managerial Form

Cities and villages may find it convenient to relieve the mayor or president of some or all of

the administrative duties, which may be accomplished through the passage of ordinances

adopting the administrative “form” of operation or the managerial form of government. The

former relieves the executive from many of the more menial tasks by allowing the appointment of

what is effectively an administrative assistant. Discussed in §1.61 below, this “form” has no

foundation in the statutes but arises from the general power of a municipality to hire officers and

employees.

The managerial form represents the total elimination of ministerial responsibilities from the

office of mayor or president. The council is the policy-making body, and the manager, then,

becomes the chief administrative officer. THE MUNICIPAL YEAR BOOK, p. 4 (44th ed. 1977);

56 AM.JUR.2d Municipal Corporations §186 (1971). Municipalities adopting this form may

merely adopt an ordinance similar to that called for in Illinois Municipal Code §5-3-10 or may

call for a referendum and conduct an election on the proposition. If the proposal to adopt this

managerial form is voted on by referendum and carries, then mere passage of an ordinance will

be insufficient to abandon the form for any other.

In theory, while adoption of this form by referendum creates security for the office of

manager, there are knowledgeable colleagues who believe that any such form of government or

government operation that is not adopted by referendum is no more than an administrative form

and that the managerial form can be adopted only by referendum. Such discussions have led at

least one court to recite:

When a “manager” form of government is used, it is relevant and pertinent to know

whether reference is made to a managerial form of government adopted by

referendum (Ill.Rev.Stat.1973, ch. 24, par. 5-1-4) [Code §5-1-4] or whether it is a

nonreferendum type, also generally referred to as a “manager” or “administrator”

operation. The latter type of operation is adopted by means of an ordinance.

Regardless of which method is used to establish a “manager” form of operation, the

purpose common to both forms is to provide a single person with full administrative

authority to carry out the executive or ministerial functions of government.

[Emphasis added.] Gagne v. Village of LaGrange, 36 Ill.App.3d 864, 345 N.E.2d 108,

112 (1st Dist. 1976).

The appendix to this chapter includes sample ordinances adopting the managerial form by

referendum (see §1.93) and adopting the managerial form through ordinance (see §1.94).

1. [1.54] Petition or Ordinance Calling for Election

To accomplish adoption of the managerial form by referendum, any city or village of fewer

than 500,000 people must elect to operate under the managerial form of government. Illinois

Municipal Code §5-1-1. This election may be held pursuant to an ordinance passed by the

corporate authorities or pursuant to court order. Code §5-1-4. Under the latter method, before the

circuit court may enter such an order, it must be petitioned by a number of resident electors equal

to at least one tenth of the number of votes cast for mayor at the last preceding mayoral election.

The court then sets a date for a hearing on the sufficiency of the petition (a form for this petition

is contained in Code §5-1-6), which hearing must take place not less than 10 nor more than 30

days after the petition has been filed. Code §5-1-5.

2. [1.55] Referendum

Assuming the petition is sufficient, the court will order the proposition of adopting the

managerial form of government to be submitted to an election. Illinois Municipal Code §5-1-5.

The proposition must be substantially in the form set out in Code §5-1-8. Certified copies of the

canvass of the votes made by the proper election officials must be transmitted to the municipal

clerk and the clerk of the court, both of whom must transcribe the copy on their records. Code §5-

1-9.

If a majority of the electors voting vote “yes,” the mayor or president must immediately

proclaim that Article 5 of the Illinois Municipal Code is in force (though the operation of the

managerial form is not deemed to commence until a manager is appointed) (Code §5-1-8) and

transmit a certificate of adoption of the managerial form to the Secretary of State, the county

recorder, and the clerk of the court for filing in each of their respective offices (Code §5-1-10). If

a majority of the electors vote “no,” the question may not be submitted again for 22 months. Code

§5-1-8.

3. [1.56] Representation

Upon adopting the managerial form of government, the city or village can elect

simultaneously to retain wards or districts. Illinois Municipal Code §§5-1-4, 5-2-1. If it does not,

the municipality thereafter elects council members or trustees at large rather than from wards or

districts. In this case, the number of aldermen and their terms of office are controlled by the

remainder of Division 2 of Article 5 of the Code. It should be noted, however, that included in

Division 2 are specific statutory procedures that (a) restrict the number of aldermen or trustees;

(b) stagger terms; (c) govern redistricting, changing from representatives at large to

representatives from wards or districts and vice versa, or instituting selection in part at large and

in part from wards or districts; and (d) provide specific forms for ballots to be used in each of the

foregoing types of election.

4. [1.57] Chief Administrative Officer

The great diversity of forms for electing aldermen or trustees under the managerial form of

government noted in §1.56 above flows from the fact that a single person appointed as manager

has almost total responsibility for carrying into effect and implementing the policies articulated

by the city council or village board. The manager’s duties, powers, obligations, and other

responsibilities are fully set forth in Illinois Municipal Code §5-3-7, most of which is reproduced

below:

The council or board of trustees, as the case may be, shall appoint a municipal

manager, who shall be the administrative head of the municipal government and

who shall be responsible for the efficient administration of all departments. He shall

be appointed without regard to his political beliefs and need not be a resident of the

city or village when appointed. The manager shall be appointed for an indefinite

term, and the conditions of the manager’s employment may be set forth in an

agreement. In the case of the absence or disability of the manager, the council or

village board may designate a qualified administrative officer of the municipality to

perform the duties of the manager during such absence or disability. The manager

may at any time be removed from office by a majority vote of the members of the

council or the board.

The powers and duties of the manager shall be:

(1) To enforce the laws and ordinances within the municipality;

(2) To appoint and remove all directors of departments. No appointment shall

be made upon any basis other than that of merit and fitness . . . ;

(3) To exercise control of all departments and divisions thereof created in this

Article 5, or that may be created by the council or board of trustees;

(4) If the city or village was subject to the aldermanic form provisions of Article

3 at the time of adoption of this Article 5 to appoint and remove all officers who are

not required to be elected by Article 3;

(5) To have all the powers and exercise all the duties granted elsewhere in this

Code to municipal clerks and comptrollers with respect to the preparation of a

report of estimated funds necessary to defray the expenses of the city or village for

the fiscal year for the consideration of the corporate authorities prior to the

preparation of the annual appropriation ordinance;

(6) To attend all meetings of the council or board of trustees with the right to

take part in the discussions, but with no right to vote;

(7) To recommend to the council or board of trustees for adoption such

measures as he may deem necessary or expedient;

(8) To perform such other duties as may be prescribed by this Article 5 or may

be required of him by ordinance or resolution of the board of trustees or council.

Under the manager form, however, the mayor or president does appoint all members of

boards and commissions not established in Article 3 or Article 4 of the Code in the manner there

provided and also appoints the membership of the board of local improvements with the consent

of the council or board. Code §§5-3-1, 5-3-11.

5. [1.58] Passage of Ordinance Pursuant to Referendum

To assure the proper implementation of the managerial form of government after the election

to adopt it, the law provides that the corporate authorities at their first meeting must pass an

ordinance that (a) amplifies the powers and duties of the manager in conformity with Article 5,

(b) defines the scope of each department and of each division thereunder, (c) defines and

prescribes the powers and duties of appointive officers and employees, (d) fixes the salaries of all

appointive officers and employees, and (e) provides for independent audits of all accounts of the

city or village conducted independently of the manager by some person selected by the council or

the village board. In addition, the council or board may in that ordinance (a) assign appointive

officers and employees to one or more of the departments, (b) require an appointive officer or

employee to perform duties in two or more departments, and (c) make such rules and regulations

as may be necessary or proper for the efficient and economical conduct of the business of the city

or village. Illinois Municipal Code §5-3-10.

6. [1.59] Practical Effect of Form

In practice, the managerial form of government is far different from any other form presently

known in municipal government. It represents a firm and often very proper cleavage between

municipal officials who are elected and those who are appointed or who are employees. It offers

an opportunity for many small municipalities to effect efficient government when there are no

persons among the citizenry who would otherwise have the time or the expertise to take on both

the policy-making legislative functions of elected office while sitting as mayor, president,

alderman, or trustee and the administrative functions of appointed officers involved with the dayto-

day running of the various departments. When the form is properly carried out, no alderman or

trustee communicates with any appointed personnel except through the city or village manager.

The alderman’s or trustee’s role as an elected official is to legislate and set the municipal policy

as a member of the council or board, not to get involved personally with the actual

implementation of that law and policy; that function is the manager’s. The manager is, by law, to

be present at all meetings of the council or board, to take part in the discussions of that body with

no right to vote, and to make recommendations to those corporate authorities as the manager sees

fit. Illinois Municipal Code §5-3-7.

7. [1.60] Abandonment of Form

A city or village that has operated under the managerial form for at least four years after the

first manager is appointed may abandon the managerial form. In such case, a petition to abandon

must be signed by electors equal in number to at least ten percent of the votes cast for mayor at

the last preceding quadrennial municipal election and be filed with the circuit court. The court

shall set a date not less than ten nor more than thirty days thereafter for a hearing on the

sufficiency of the petition, and notice thereof must be given the clerk or the mayor at least seven

days prior to the hearing. If the court finds the petition is sufficient, it shall order that the

proposition be submitted to the voters of the municipality at an election other than a primary

election. The clerk of the court shall certify the proposition to the election authorities in the

following form: “Shall (name of city or village) retain the managerial form of municipal

government?” Illinois Municipal Code §5-5-1(a).

If a majority of the electors voting vote “yes,” the proposition to abandon is rejected; if a

majority of the electors voting vote “no,” the proposition is approved. Code §5-5-1(b). If

approved, the abandonment shall not affect the rights or liabilities of the city or village, and the

elected officials in office at the time of the abandonment shall continue in office until the

expiration of their respective terms. However, the municipality shall become subject to the form

contained in Article 3.1 or Article 4 of the Code, whichever was in force in the municipality at the

time it adopted the managerial form. Following approval of abandonment, the next succeeding

election and qualification of officers shall be those prescribed in the Article 3.1 or Article 4 form.

Code §5-5-1(c). If they are elected from wards or districts, the officers to be elected shall be

elected from the same wards or districts as existed immediately before the abandonment. Code

§5-5-1(d).

On the other hand, if the officers to be elected were elected at large but prior to the adoption

of the managerial form were elected from wards or districts, then after approval of abandonment

the first group of aldermen, trustees, or commissioners (as the case may be) shall be of the same

number and run from the same wards or districts as provided for at the time of the adoption of the

managerial form. However, if during the time the managerial form was in existence the district or

ward boundaries changed, after abandonment the corporate authorities shall alter the boundaries

so as to conform as nearly as possible to the former division of the corporate area of the

municipality in existence immediately before the adoption of Article 5 and the next general

municipal election for officers shall be held at the time specified in §3.1-10-75 or §3.1-25-15. In

the event the terms of the aldermen or trustees operating under Article 3 were staggered prior to

adoption of the managerial form, they shall choose by lot which of them shall serve initial twoyear

terms as in the case of a first election after incorporation as provided by §3.1-20-35 or §3.1-

15-5, as the case may be. Code §5-5-1(e). No proposition to abandon the managerial form can be

submitted to the voters more often than once in 46 months. Code §5-5-1(f).

Accordingly, upon abandonment, the city or village normally reverts to the form of

government it used immediately before adoption of the managerial form. Nevertheless, even this

may be changed. Under the provisions of Code §§5-5-5 and 5-5-6, upon abandonment, the

commission or strong mayor forms may be adopted, or the abandoning municipality may revert to

the aldermanic or trustee form.

D. [1.61] Administrator Form

Sometimes cities or villages adopt a managerial form of government by ordinance only and

erroneously refer to what is actually a manager (albeit without the security of manager-byreferendum

discussed above) as an “administrator.” Actually, an administrator is no more than

the right arm of the mayor or president. There may be many names used instead of “city

administrator” or “village administrator,” including “chief administrator,” “managing director,”

“executive director,” “executive assistant,” “business administrator,” or “chief administrative

officer.” Whatever the title used, however, in most cases the administrator is only the mayor’s or

president’s appointed aide, with no authority other than what the mayor or president may confer

to implement ideas, techniques, and/or methods of conducting the day-to-day affairs of the

municipality.

While the administrator has no voice at council or board meetings and cannot directly affect

the policy-making decisions of that body the way a manager can, the administrator does,

nevertheless, offer the city or village the same expertise as a manager by bringing professional

management into municipal administration. As in the managerial form, the elected mayor or

president is freed to focus on policy-making. The mayor or president remains the chief

administrative officer as well as the chief executive officer. Furthermore, depending on local

ordinances, customs, and usage, the mayor or president may have sole authority and say in

appointing the administrator, or the appointment may require the advice and consent of the

council or board. Also, the mayor or president may be empowered to remove the administrator or

may need the approval of the council or board. All or some of the duties of the administrator may

be assigned by the mayor or president, or they may be determined entirely by the council or

board. The mayor or president usually appoints all department heads, but sometimes this

responsibility is left to the administrator.

Basically, it is the administrator’s job to render administrative counsel and advice to the

mayor or president, coordinate the various departments and personnel, recommend the hiring and

firing of employees, prepare the municipal budget (often under the mayor’s or president’s direct

supervision) for its presentation by the mayor or president to the council or board, administer the

budget after its approval, represent the mayor or president and/or the city or village at various

affairs and functions, and generally accomplish such other duties as the mayor or president may

from time to time assign. THE MUNICIPAL YEAR BOOK, p. 3 (40th ed. 1973).

E. [1.62] Commission Form

Any municipality of less than 200,000 population may elect by referendum to operate under

the commission form of government. Illinois Municipal Code §4-2-1.

1. [1.63] Petition and Hearing

Before a referendum may be held, the circuit court of the county must be petitioned by a

number of electors from the city or village equal to one tenth of the number of votes cast for all

candidates for mayor or president at the last municipal election for that office. The court must

then conduct a hearing on a date not more than thirty nor less than ten days after the petition has

been filed. Notice of filing and of the date of hearing must be given to the mayor or president and

to the municipal clerk at least seven days before the hearing. Illinois Municipal Code §4-2-2.

2. [1.64] Notice

If the petition to hold a referendum is found sufficient based on the law and the form

contained in Illinois Municipal Code §4-2-3, the court will enter an order certifying the

proposition for submission to the electorate in accord with the Election Code. Notice of this

referendum concerning whether the municipality will adopt the commission form of government

is to be given in the same fashion as provided for general municipal elections. Code §4-2-2.

3. [1.65] Referendum

The canvass of the election is to be made by the proper officers of the election, who are to

forward a certified copy of the results to the municipal clerk and to the clerk of the court, who in

turn enter the results on their records. Illinois Municipal Code §4-2-6. If a majority votes against

adopting the commission form of government, no referendum can be held again on the matter for

a period of 22 months, but if a majority votes in favor of the proposition, the commission form of

government goes into effect on the date of the next general municipal election. Code §4-2-5.

Immediately after that election, the mayor or president must send a certificate stating that the

municipality has adopted the commission form to the Secretary of State, the county recorder, and

the clerk of the circuit court, each of whom files the certificate in the respective office. Code §4-

2-7.

4. [1.66] First Officers and Meetings

At the next following April of an odd-numbered year (being the next general municipal

election), the municipalities adopting the commission form of government shall elect a mayor and

four commissioners following the expiration of the term of office of the mayor or president (a)

holding office when the change of form is adopted, (b) elected when the change of form is made,

or (c) elected at the next biennial election held after the adoption of the form. Illinois Municipal

Code §4-3-2. The municipality also shall discontinue its wards or districts since the entire council

(the mayor and four commissioners) must run at large. Id. The terms of office, conduct of primary

and general elections, petitions and statements of candidacy, registration and qualifications of

voters, and forms of ballots are controlled by Code §§4-3-4 through 4-3-18 and as provided for in

the Election Code.

The conduct and time of council meetings, regular and special, are regulated by Municipal

Code §4-5-12. Under this section, the mayor and four commissioners each have the right to vote

on all questions coming before the council. While the mayor has no veto power, each ordinance,

resolution, or warrant passed or ordered by the council must be signed by the mayor or any two

commissioners, and all ordinances and resolutions also must be filed for record before they are

considered to be in force. Id.

5. Specific Officers

a. [1.67] Petition and Referendum

A separate referendum or separate ballot at the initial election for mayor and commissioners

may be held upon petition to require candidates for commissioner to run for a specific office.

Illinois Municipal Code §4-3-19. The petition need contain signatures equal to only ten percent of

the number of electors voting for mayor at the last preceding mayoral election. The proposition

must be substantially in the form set out in Code §4-3-19. If the majority of those voting vote in

favor of the proposition, thereafter candidates run for specific offices, i.e., commissioner of

accounts and finances, commissioner of public health and safety, commissioner of streets and

public improvements (who, per Code §4-5-3, serves ex-officio as commissioner of public works),

and commissioner of public property. Code §4-3-19. The mayor is commissioner of public

affairs. The commissioner of each department is superintendent of that department. Code §4-5-3.

b. [1.68] Principal Officers

Pursuant to Illinois Municipal Code §4-5-1, “[t]he mayor shall be the president of the council

and preside at its meetings, and he shall supervise all departments and report to the council for its

action all matters requiring attention in any department. The commissioner of accounts and

finances shall be vice president of the council, and in case of a vacancy in the office of mayor or

the absence or inability of the mayor, shall perform the duties of the mayor.”

c. [1.69] Departments and Personnel

To carry out the executive and administrative powers and duties distributed among the five

departments mentioned in §1.67 above, the council by ordinance must determine the parameters

of authority of each department, officer, and employee and by ordinance must make additional

rules to carry out the business of the municipality in the most efficient and economical manner.

Illinois Municipal Code §4-5-2.

Normally, which commissioner is responsible for each department is determined by majority

vote at the very first meeting of the new council unless, of course, this has already been

accomplished by adoption of the requirement that commissioners run for specific office. Code §4-

5-3. In any event, by majority vote and with slight variation depending on local law, the council

usually appoints a municipal clerk, corporation counsel, city attorney, assistant city attorney, city

treasurer, library trustees, commissioner of streets and public improvements, superintendent of

streets, superintendent of special assessments, superintendent of sewers, city engineer, and any

other necessary additional officers. Code §4-5-4(a). In addition, in those cities over 50,000

population that have adopted the Civil Service Act, the police department is part of the

department of public affairs and the offices of corporate counsel, city attorney, assistant city

attorney, and all other members of the legal department are assigned to that department and

appointed by the mayor. Code §4-5-4(b).

Unless it is provided by ordinance that the superintendent or commissioner of each

department has the power, the council has the right to hire and fire the heads of all departments

that are subordinate to or within the five principal departments. Code §§4-5-5, 4-5-9. Without

question, all other officers and employees (exclusive of those under the Civil Service Act or Fire

and Police Commissioners Act) are subject to appointment and discharge by the commissioner of

their department. Code §§4-5-6, 4-5-7.

6. [1.70] Practical Disadvantages

The hiring and firing provisions noted in §1.69 above seem to be the biggest drawbacks of the

commission form of government in that they tend to foster a patronage system. The concern of

the author regarding patronage is underscored by specific penalty provisions contained in Illinois

Municipal Code §§4-8-2 through 4-8-7. Penalties are provided for bribery, promises of

appointment, illegal campaign contributions, and conflicts of interest and are obviously intended

to dissuade unethical and immoral activity engendered by the power in the law as presently in

force.

An additional drawback to the commission form of government involves an alternate method

of causing the construction of any public improvements. As is usual for most municipalities,

whatever the form, contracts for public improvements or maintenance of public property over

$10,000 must be based on specifications approved by the council, any work or other public

improvement exceeding $20,000 that is not to be paid for in whole or in part by special

assessment or special taxation must be let to the lowest responsible bidder unless four of five

commissioners vote to award the contract without advertising for bids, in which case the proper

officers can enter into the contract. Code §4-5-11(1). However, an alternate method provides that

if authorized by a vote of four of the five council members, the commissioner of public works or

other proper officer designated by ordinance shall superintend and cause to be carried out the

construction of the public improvements and shall employ exclusively for the performance of all

manual labor thereon laborers and artisans whom the municipality shall pay by the day or hour.

All material of the value of $20,000 or more used in the construction of that work or

improvement shall be purchased by contract let to the lowest responsible bidder in the manner

prescribed by ordinance. Code §4-5-11(2).

The commission form of government is also criticized for developing special interests of the

commissioners as opposed to general concern for the welfare of the community because each

legislator is interested only in the department he or she supervises.

7. [1.71] Advantages

Extraordinary control over certain public utilities seems to be one of the reasons the

commission form of government came into existence. See Illinois Municipal Code §§4-5-10, 4-9-

3. Another obvious advantage of the commission form flows from the fact that the commissioners

are the superintendents of departments. This cuts administrative costs and can be a boon to the

taxpayers of smaller communities in which part-time commissioners accomplish much of the

routine paperwork, especially as additional full-time administrative staff would otherwise be

unwarranted and extravagant.

8. [1.72] Abandonment

After the municipality has operated under the commission form of government for at least

two years, the question of abandonment may be considered. Illinois Municipal Code §4-10-1. The

proceedings necessary to abandon the commission form are commenced by filing with the

municipal clerk a petition containing the proposition signed by a number of electors equal to 25

percent of the number of votes cast for mayor at the last preceding general municipal mayoral

election. The municipal clerk then certifies the proposition to the proper election authorities for

submission to the electors of the municipality. If the court finds the petition sufficient, it orders

the proposition to be submitted to the electorate at the next regular municipal election. Id.

Note that in cities and villages with fewer than 50,000 citizens, the issue can be submitted

only within the year preceding the expiration of the terms of office of the elective officers and

cannot be submitted more than once in that year. In municipalities of 50,000 or more, the

question of abandonment cannot be submitted more than once in 22 months. Id. Although the

statute indicates that if the majority vote in favor of abandonment the city or village reverts to a

city or village under the general law contained in Article 3 of the Code, there is no reason to

believe that another proposition to adopt the managerial form or the strong mayor form, presented

on a separate ballot, could not also be voted on in the same election in which the issue of

abandonment is submitted to the voters. This procedure has, in fact, been followed in many

managerial-form cities and villages that were previously under the commission form. See also

Code §§5-5-5, 5-5-6.

F. [1.73] Strong Mayor Form of Government

When the Cities and Villages Act was amended and revised in 1941, most of the law

regulating municipalities was placed into ten articles. It seems that the authors of the Act wished

to revise the existing laws simply by recodifying them and, as a result, limited the amount of

substantive revision. The drafters of the 1961 version of the Illinois Municipal Code apparently

had the same problem.

Initially, Article 6 of the Illinois Municipal Code was to have been a recodification of the law

concerning the City of Chicago, but for reasons not germane to this discussion the law was left

outside the Code. As a result, the Municipal Code of 1961 contained only ten articles even though

the last article was Article 11. George M. Platt, The Illinois Municipal Code, 65 ILCS (S.H.A.) 5.

In 1969, however, the General Assembly did pass a law, P.A. 76-746, adding an Article 6 to the

Code. That article is known as “The Strong Mayor Form of Municipal Government.” Code §6-1-

1. This form of government is available to any municipality that (1) does not have less than 5,000

nor more than 500,000 population (Code §6-2-1) and (2) is not an incorporated town that has

superseded a civil township (Code §6-1-3).

1. [1.74] Petition

The procedure for adoption of the strong mayor form of government is similar to that for

adoption of the managerial and commission forms of government in that a petition must first be

submitted and an election held on the issue of whether the municipality should adopt the strong

mayor form of government. Electors equal to one tenth of the number of votes cast for all

candidates for mayor or president at the last preceding municipal election must petition the circuit

court in the county in which the municipality is located in order for the proposition to be

submitted to a vote. Illinois Municipal Code §6-2-2.

2. [1.75] Hearing

Once the court receives a petition to adopt the strong mayor form of government, it must set a

date not less than ten days nor more than thirty days after filing of the petition for a hearing on its

sufficiency and must give notice of the hearing in writing to the city or village clerk and to the

mayor or village president at least seven days before the date of the hearing. Illinois Municipal

Code §6-2-2. If the court finds the petition sufficient, it orders the proposition to be submitted to

the electorate at the next regular municipal election, and the clerk of the court certifies the

proposition to the proper election authorities for submission to the electors of the municipality in

accord with the Election Code. Id. The form of the petition and the form of the proposition are

contained in Municipal Code §§6-2-3 and 6-2-5 respectively.

3. [1.76] Result of Referendum

Following the election to adopt the strong mayor form of government, a canvass of the votes

on the proposition is transmitted to the village or city clerk and to the county clerk, both of whom

transcribe the canvass on their records. Illinois Municipal Code §6-2-6. In the event the strong

mayor form is adopted by the electors, the mayor or village president must immediately transmit

a certificate to that effect to the Secretary of State, the county clerk, and the county recorder, all

of whom must file or record this certificate in their offices. Code §6-2-7.

4. [1.77] Powers of Mayor

The concept of the strong mayor form of government is to emphasize the role of the mayor

and to give the mayor certain additional powers and duties over and above those of a mayor or

president in a city or village operating under a different form. It should be noted, however, that if

any other article of the Illinois Municipal Code or any other regulation provides for appointments

to boards, commissions, or other agencies by the mayor and the corporate authorities, when the

village board or city council actually creates such boards and commissions, the appointments to

those agencies must be made in the manner so provided and, hence, not necessarily by the mayor.

Code §6-4-1.

The mayor’s powers under this form include

a. enforcing laws within the municipality;

b. appointing and removing administrative assistants, the budget and finance director, the

heads of all other departments, and all other officers of the municipality, commissions,

boards, and other agencies, except those covered by the Civil Service Act in

municipalities that have adopted it as provided in Code §6-4-14, but “[n]o appointment

shall be made upon any basis other than that of merit and fitness and in compliance with

provisions of [the Code] and with qualifications established by the city council or

village”;

c. controlling all departments and divisions of the municipality created by the council;

d. recommending to the council the adoption of such measures as the mayor deems

necessary or expedient; and

e. performing such other duties as may be prescribed by Article 6 of the Code or may be

required by ordinance. Code §6-4-7.

In addition, the mayor can approve or disapprove ordinances passed by the council. If the

mayor approves the ordinance, the mayor signs it. If the mayor disapproves the ordinance, he or

she returns it to the council with written objections at the next regular meeting of the council not

less than five days after its passage. If the mayor fails to return the ordinance in the manner set

forth, it becomes effective despite the absence of a signature. Code §6-4-2.

5. [1.78] Representation by Wards or Districts

When the strong mayor form of government has been adopted by referendum as discussed in

§1.76 above, the corporate authorities must divide the municipality into wards no later than 30

days before the first day on which candidate petitions may be filed for the primary election at

which the first municipal officers are to be nominated for office. Illinois Municipal Code §6-3-1.

As a result, the terms of office of the elected officials holding office at the time of the issuance of

the mayor’s certificate that the strong mayor form of government has been adopted terminate

upon the election of the officers of the new form of government unless the existing municipality

was a city divided into an equal number of wards as the city under the new strong mayor form, in

which case the aldermen holding office continue to serve until the expiration of the terms for

which they were elected. Code §6-3-2. The voters in the city under the new form elect a mayor, a

clerk, and a municipal treasurer at large and from 8 to 20 aldermen from wards. Code §6-3-3.

Two aldermen are elected to represent each ward, and the number of aldermen is determined by

population according to a schedule set out in §6-3-3. Division into wards, redistricting of the city,

resignation of an alderman or other officer and other vacancies in office, and qualifications for

city office are covered in Code §§6-3-4 through 6-3-9.

6. [1.79] Passage of Ordinance Pursuant to Referendum

At the first meeting of the council after Article 6 and the strong mayor form of government

become effective in any city or village, pursuant to the terms of Illinois Municipal Code §6-4-10,

the council must pass a general ordinance

(1) amplifying the powers and duties of the mayor in conformity with this Article 6,

(2) defining the scope of each department and of each division thereunder, (3)

defining and prescribing the qualifications, powers and duties of appointive officers

and employees, (4) fixing the salaries of all appointive officers and employees, (5)

providing for independent audits of all accounts of the city or village, which audits

shall be conducted independently of the mayor by some person selected by the

council, (6) repealing all city ordinances in conflict with the provisions of this

statute. Full reports of such audits shall be filed with the public records of the city

or village. The power with respect to such audits shall not be construed to limit the

responsibility of the mayor for the proper expenditure of city or village funds.

Note carefully that the statute continuously uses the words “city,” “wards,” “council,” and

“aldermen” when it is fairly obvious from the outset that the form of government is available to

villages also. Code §1-1-2(8). As a result, one must keep in mind while reading the statute that if

the subject municipality is a village, the term “trustee” should be substituted for “alderman” and

the term “district” should be substituted for “ward.” The Code, then, would be applicable to

trustees as well as aldermen in this particular instance. Code §6-1-2.

G. [1.80] Constitutional Form

Since 1970, cities and villages have been given the added advantage of tailoring the form of

government under which they wish to operate to the specific needs and requirements of the

community. The 1970 Constitution provides that counties and municipalities other than home rule

units have the powers “by referendum, to adopt, alter or repeal their forms of government

provided by law.” ILL.CONST. art. VII, §7. Home rule units are also given similar power

“subject to approval by referendum to adopt, alter or repeal a form of government provided by

law.” ILL.CONST. art. VII, §6(f). This section further states, “A home rule municipality shall

have the power to provide for its officers, their manner of selection and terms of office only as

approved by referendum or as otherwise authorized by law.”

It appears, then, that any existing city or village can, by suitable election, amend its current

form. For example, a city could increase the number of aldermen per ward to three, or a village

could increase the number of trustees from six to eight or ten or even to authorize trustees to run

from more than six districts — thereby accomplishing whatever advantage there may be for that

particular community without the necessity of changing from a village to a city.

In Clarke v. Village of Arlington Heights, 57 Ill.2d 50, 309 N.E.2d 576 (1974), the

Village of Arlington Heights, a home rule municipality in northwest Cook County, after a

referendum on the issues, adopted an ordinance changing the office of village clerk from an

elected position to an appointed position and increased the number of trustees from six to

eight. One resident, John Clarke, filed suit to challenge the village’s authority to change to a

form of government not provided in the Illinois Municipal Code. In addition, he argued that

the general law required the village clerk to be elected. In deciding the issues and in allowing

the referendum and subsequent ordinance to stand, the court quoted Kanellos v. County of

Cook, 53 Ill.2d 161, 290 N.E.2d 240, 243 (1972).

The concept of home rule adopted under the provisions of the 1970 constitution

was designed to drastically alter the relationship which previously existed between

local and State government. Formerly, the actions of local governmental units were

limited to those powers which were expressly authorized, implied or essential in

carrying out the legislature’s grant of authority. Under the home-rule provisions of

the 1970 constitution, however, the power of the General Assembly to limit the

actions of home-rule units has been circumscribed and home-rule units have been

constitutionally delegated greater autonomy in the determination of their

government and affairs. To accomplish this independence the constitution conferred

substantial powers upon home-rule units subject only to those restrictions imposed

or authorized therein. 309 N.E.2d at 578.

The court in Clarke further stated:

We find that the Village of Arlington Heights may effect these structural revisions of

its government pursuant to its constitutional authority explicitly set forth in section

6(f), which empowers it to provide for its municipal officers, the manner of their

selection and term of office. (See generally Parkhurst, Two Years Later: The Status of

Home Rule in Illinois, University of Illinois Bulletin, Vol. 71, No. 52, pp. 26 – 27

(1973).) This action take[s] precedence over the present legislative provisions of the

Municipal Code limiting the number of Village trustees to six (par. 3-5-2) and

requiring the election of a Village clerk (par. 3-5-9). As Kanellos and [People ex rel.

Hanrahan v. Beck, 54 Ill.2d 561, 301 N.E.2d 281 (1973)] make clear, a home-rule unit

may preempt statutory provisions enacted prior to the adoption of our present

Constitution, as was accomplished in the present instance. 309 N.E.2d at 579.

Clearly, then, the provisions of the 1970 Constitution are not deemed to restrict municipalities in

the form of government impressed by general statute on any given city or village. On the

contrary, once cities and villages have been organized under the general law, their municipal

status alone will allow the residents by referendum to use the 1970 Constitution in choosing

whatever form of government they desire or modifying any form to meet the needs of the

community. See also Boytor v. City of Aurora, 81 Ill.2d 308, 410 N.E.2d 1, 43 Ill.Dec. 1 (1980);

Marshall v. City of Chicago Heights, 59 Ill.App.3d 986, 376 N.E.2d 657, 17 Ill.Dec. 511 (1st

Dist. 1978); Pechous v. Slawko, 64 Ill.2d 576, 357 N.E.2d 1144, 2 Ill.Dec. 701 (1976).

V. [1.81] DISSOLUTION AND CONSOLIDATION OF MUNICIPALITIES

Like private corporations, municipal corporations can be and sometimes ought to be

dissolved. The general rule, though, is that continued existence of a municipal corporation cannot

be questioned collaterally. Town of Geneva v. Cole, 61 Ill. 397 (1871). In addition, in People ex

rel. Petty v. Thomas, 361 Ill. 448, 198 N.E. 363 (1935), it was held that the officers of a

municipal corporation, as well as the residents living within its boundaries, are just as powerless

to dissolve it except in the manner prescribed by statute. Logically, it would appear from the very

short division on dissolution in the Illinois Municipal Code (Code §§7-6-1 through 7-6-8), as well

as from the obvious problems involved with existing bonds and other liabilities, that the

continued existence of a body politic and corporate is something to be encouraged. To that end,

the General Assembly added a division, Consolidations (Code §§7-7-1 through 7-7-12), to the

Code. A “consolidation” pursuant to this division is the method by which two or more

municipalities are dissolved simultaneously and a new municipality is incorporated. In connection

with any dissolution, while it is not clear whether the constitutional creation of home rule units

under the 1970 Constitution has changed the ultimate power of the legislature over the existence

of such home rule units, it can be argued that just as the authority must first be granted by the

General Assembly to incorporate, so too it must be granted to dissolve. The power of the General

Assembly to create municipal corporations is based on the preemption sections of the 1970

Constitution. ILL.CONST. art. VII, §§6(g), 6(h), 6(i). Accordingly, no nonexistent municipality

can become a home rule unit by creating itself. Therefore, because cities and villages cannot be

created except in the manner provided by law, the author believes that municipalities cannot be

dissolved or consolidated except in the manner provided by law.

A. [1.82] Involuntary Dissolution

Any time there are fewer than 50 persons populating any given city or village, upon petition

by the county board to the circuit court of the county within which that municipality is located,

that particular city or village may be ordered to dissolve after a hearing upon notice as directed by

the court. Illinois Municipal Code §7-6-7. The steps that must be taken to wind up the affairs of

the corporation are then substantially identical to those procedures for the acting officers of a

municipality to follow in the voluntary dissolution of a corporation. See Code §§7-6-4 through 7-

6-6.

B. [1.83] Voluntary Dissolution

Voluntary dissolution occurs after a referendum on the proposition to dissolve is petitioned

for by a number of electors equal to a simple majority of the total votes cast at the last preceding

general municipal election. Illinois Municipal Code §7-6-1. When the municipal clerk receives

such a petition, the clerk certifies the question of whether the municipality should be dissolved to

the proper election authorities, who submit the proposition to the electors of the municipality in

accordance with the Election Code (id.) and in substantially the form set out in Municipal Code

§7-6-2. If a majority of votes cast on the question are affirmative, the municipality is dissolved,

and if a majority are negative, the municipality continues. Code §7-6-3. If defeated, the

proposition cannot be resubmitted to a vote for a period of 22 months. Id.

1. [1.84] Action by Officers

If the vote is in favor of dissolution, those holding elected office become mere acting officers

whose sole object is to wind up the affairs of the corporation. Illinois Municipal Code §7-6-4. By

statute, there will be no further elections for municipal officers since that municipal corporation is

automatically dissolved upon the returns being made and canvassed. Id. Pursuant to Division 6 of

Article 7 of the Code, those acting officers, in closing up the business affairs of that municipality,

must do the following:

a. give notice of the result of the election to the Secretary of State within ten days after the

election and file a copy of the notice with the county clerk (§7-6-5);

b. make the necessary conveyances of title to municipal properties (§7-6-4);

c. levy and collect taxes for the purposes of paying debts and obligations but create no new

obligations of the municipality (id.);

d. distribute all money remaining after winding up the affairs of the municipality to the

school treasurer for the township or school unit, as the case may be, in which the greater

part of the municipality was situated (id.); and

e. file with the county clerk a statement under oath reflecting all of the closing-up

transactions (§7-6-6).

2. [1.85] Action by Creditors and Others

It would appear that the assignment of elected officers to wind up the affairs of the

municipality and the power granted to them to levy and collect taxes should, in the ordinary

circumstances, assure that all claims against the municipality will be paid upon its dissolution.

However, there is a line of cases holding that when there is a complete dissolution of a

corporation and no officers remain to wind up its affairs, creditors of the corporation are

practically without remedy as far as an appeal to the judiciary is concerned. Rees v. City of

Watertown, 86 U.S. (19 Wall.) 107, 22 L.Ed. 72 (1873); Supervisors v. Rogers, 74 U.S. (7 Wall.)

175, 19 L.Ed. 162 (1868); Ernest M. Loeb Co. v. Avoyelles Drainage District No. 8, 92 F.Supp.

126 (W.D.La. 1950), aff’d, 189 F.2d 965 (5th Cir. 1951). In Barkley v. Levee Commissioners, 93

U.S. (3 Otto) 258, 23 L.Ed. 893 (1876), the United States Supreme Court held that the only

recourse for such creditors of a defunct and dissolved municipal corporation is an appeal to the

legislature of the state in which the city or village was located. In another case, it was held that (a)

the courts have the power to compel the levy and collection of taxes by mandamus, but when no

officer can be found to perform the duty of levying and collecting them, there is no sufficient

ground for equity jurisdiction; (b) the principle is the same when no one can be found to accept

the office of collector of taxes that have already been levied; and (c) no power exists in either a

court of equity or a court of law to fill the office of tax collector. Thompson v. Allen County, 115

U.S. 550, 29 L.Ed. 472, 6 S.Ct. 140 (1885), aff’g 13 F. 97 (D.Ky. 1882). Both Barkley and

Thompson have been cited regularly as authority. See Rorick v. United States Sugar Corp., 120

F.2d 418 (5th Cir. 1941); Board of Education of Independent School District 20, Muskogee,

Oklahoma v. State of Oklahoma, 409 F.2d 665 (10th Cir. 1969).

C. Consolidation of Municipalities

1. [1.86] Power To Consolidate

The provisions of Illinois Municipal Code §7-7-1, et seq., offer an alternative to any other

method of unifying municipal corporations allowed by law. Any two or more municipalities

located in one or more counties may consolidate provided each county has a population of not

more than 200,000 based on the most recent federal census and the municipalities are contiguous

to each other or will be contiguous upon consolidation. Municipalities are not precluded from

consolidating and deemed to be contiguous regardless of whether the municipalities are separated

by a park or forest preserve district, railroad or public utility right-of-way, or highway or toll

highway under the jurisdiction of any township or any department or division of the state.

However, any such park or forest preserve district, railroad or public utility right-of-way, or

highway or toll highway under the jurisdiction of any township or any department or division of

the state is not considered part of the consolidated municipality. Code §7-7-3. Once consolidated,

the new (consolidated) municipality shall comprise the entire territory and all of the inhabitants of

all of the dissolved (consolidating) municipalities combined. It shall also “inherit” all of the

liabilities and assets of the consolidating municipalities, including pending lawsuits, and must

honor vested rights of individuals (including bondholders) and afford them all remedies they had

prior to the consolidation as well as those afforded as new remedies by reason of the

consolidation. Code §7-7-12.

2. [1.87] Resolution or Petition; Referendum

Before any simultaneous dissolution and consolidation shall be effective, the Illinois

Municipal Code requires a specific question (the form of which is found in Code §7-7-9) to be

put to the voters in each of the consolidating municipalities. Code §7-7-4. No proposed

consolidation ordinance shall be effective unless approved by a referendum conducted in accord

with §28-7 of the Election Code, 10 ILCS 5/28-7. See Municipal Code §7-7-7. If the

consolidation referendum is approved by voters in fewer than all of the consolidating

municipalities, the consolidation shall be effective only as to those municipalities in which the

question is approved and that will be contiguous as of the date of the consolidation. However, in

those situations involving three or more municipalities, the form of the proposed ordinance could

require that the question be approved by a majority of the voters voting in each of the

consolidating municipalities in order to become effective. Code §7-7-8.

3. [1.88] Proposed Ordinances; Form of Government

While the public question for consolidation is initiated in accord with §28-7 of the Election

Code, Illinois Municipal Code §7-7-4 requires that the petition or resolution of each consolidating

municipality must be accompanied by and incorporate by reference a proposed consolidation

ordinance — each of which is entitled “Ordinance Providing for the Consolidation of the Cities,

Villages, or Incorporated Towns of ____________ into a Single Municipality with the Interim

Name of ____________” and shall otherwise be identical except as to form. In substance, at a

minimum the proposed ordinance must designate the municipal clerk of one of the consolidating

municipalities who shall perform the duties of the local election official (see Code §7-7-11) and

contain the items and information set forth with specificity in §7-7-4, as follows:

(1) the minimum number of municipalities or the specific municipalities in which

the approval of the voters shall be necessary to effect the consolidation; (2)

procedures for the selection of the permanent name of the consolidated

municipality; (3) the compensation of the corporate authorities of the consolidated

municipality; (4) the date the consolidation shall be effective; (5) procedures for the

orderly succession of powers, functions, assets, liabilities and personnel and the

merger of the administrative offices of the consolidating municipalities; (6) the dates

for election of the initial corporate authorities and other elected officers of the

consolidated municipality; (7) the identity of the members of the transition

committee; and (8) a form of government for the consolidated municipality,

including: (i) the powers and functions of the various officers; (ii) their terms of

office, whether those terms shall be staggered and if so, the procedure for staggering

the terms of the initial officers; (iii) the manner of selection of the officers; and (iv) if

the form of government is other than a form established by this Code, whether the

positions of treasurer and clerk are elective or appointive.

The consolidation ordinance may contain such other matters as are necessary or appropriate for

the purposes of implementing the consolidation, including specifications of the form of

government, whether an existing one established by the Illinois Municipal Code or one created

pursuant to Article VII of the Illinois Constitution. Code §7-7-5. The ordinance in its proposed

form must be filed with the clerk of each consolidating municipality and be made available to the

public by those clerks. Code §7-7-4. Each such clerk must also publish the ordinance in its

proposed form in a newspaper of general circulation in each consolidating municipality not less

than 30 nor more than 60 days prior to the referendum. Code §7-7-6.

4. [1.89] Transition

Provided the referendum question has been approved, the corporate authorities of each

consolidating municipality shall adopt their consolidation ordinance during their first regular

meeting following the declaration of the results of the referendum. Within five days after the

adoption of the consolidation ordinance by each of the consolidating municipalities, the transition

committee shall conduct its first meeting. Thereafter, the transition committee shall exercise the

power and undertake the functions set forth in the consolidation ordinance, which shall take effect

as an intergovernmental agreement, and shall prepare a code of ordinances for the consolidated

municipality. However, an ordinance that was in effect within the corporate limits of a

consolidating municipality shall remain in effect within the territory of the dissolved

consolidating municipality until expressly or impliedly repealed by the corporate authorities of

the new (consolidated) municipality, unless the consolidating ordinance provides otherwise.

Illinois Municipal Code §7-7-10.

5. [1.90] Permanent Name

Illinois Municipal Code §7-7-10 states that in determining the permanent name of the new

(consolidated) municipality, the transition committee and the Secretary of State shall follow the

applicable provision of Code §2-1-7.

6. [1.91] Effective Date of Consolidation

It is anticipated that the transition committee will have ample opportunity to finalize its work

because the automatic dissolution of the original municipalities and the consolidation forming the

new municipality occur as soon as the newly elected officers of the consolidated municipality

take office. Except for the notice procedures contained in Illinois Municipal Code §7-6-5 (see

§1.84 above), the dissolution procedures of Division 6 of Article 7 of the Code do not apply.

However, the chief executive officer of the new (consolidated) municipality shall comply with the

requirements of Code §2-1-5 relating to records. Code §7-7-12.

7. [1.92] Election of Officers

In accordance with Illinois Municipal Code §7-7-11, following the referendum, the first

election of officers of the new (consolidated) municipality shall occur at the next consolidated

election established pursuant to §2A-1.1 of the Election Code, 10 ILCS 5/2A-1.1, and shall be

conducted in accord with the Election Code, except that the municipal clerk designated in the

consolidation ordinance shall perform the duties of the local election official and all of the

municipal clerks of the consolidating municipalities shall constitute the electoral board and the

canvassing board. As set forth in Municipal Code §7-7-11, the method of computing the number

of signatures required for the nominating petitions for the primary and consolidated elections also

comprise deviations from the Election Code.

VI. APPENDIX

A. [1.93] Manager Ordinance — By Referendum

ORDINANCE NO. ________

AN ORDINANCE AMPLIFYING THE POWERS AND DUTIES OF

THE VILLAGE MANAGER AND ESTABLISHING VARIOUS DEPARTMENTS

WHEREAS, on __________, 20__, the electorate of the Village of _______________ adopted

the managerial form of municipal government; and

WHEREAS, pursuant to Chapter 65, Section 5-3-10 of the Illinois Compiled Statutes, a

general ordinance is to be adopted by the President and Board of Trustees elaborating the

powers and duties of the Village Manager and establishing the various departments of the

municipal government; and

WHEREAS, the President and Board of Trustees have determined that the following

Ordinance is in the best interests of the residents of the Village of _______________;

NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF

TRUSTEES OF THE VILLAGE OF _______________, ____________ COUNTY,

ILLINOIS:

SECTION ONE: That Article I of Chapter 4 of the Municipal Code of the

_______________, as amended, is hereby further amended in its entirety so that Article I of

Chapter 4 shall hereafter be and read as follows:

ARTICLE I: Village Manager

Section 4.101. Office. The position of Village Manager as defined by the Illinois Compiled

Statutes is hereby established.

Section 4.102. Appointment and Removal of Village Manager. The Village Manager shall be

appointed by the President and Board of Trustees for an indefinite term. He shall be

appointed without regard to his political beliefs, and need not be a resident of the Village

when appointed, but during his tenure of office, he shall reside within the Village. He shall

be chosen on the basis of his executive and administrative qualifications with special

reference to his actual experience in or his knowledge of accepted practice in respect to the

duties of his office hereinafter set forth. Neither the Village President, the Village Clerk, nor

any Village Trustee shall receive such appointment during the term for which he will have

been elected or within one year after the expiration of his term.

The Village Manager may be removed by the President and Board of Trustees by a

majority vote of the entire Board at any time.

Any vacancy in the office of the Village Manager shall be filled within 90 days after the

effective date of such vacancy. In the case of the absence or disability of the Manager, the

Village Board may designate a qualified administrative official of the municipality to

perform the duties of the Manager during such absence or disability.

Section 4.103. Powers and Duties of the Village Manager. The Village Manager shall be the

administrative head of the Village government, and he shall be responsible for the efficient

administration of all departments.

The powers and duties of the Manager shall be as follows:

A. To enforce the laws and ordinances within the municipality;

B. To appoint and remove departments heads and to appoint and remove all directors

of departments and all other appointed officials and employees except when the

appointment power is vested in the elected officials of the Village under the Statutes

of the State of Illinois or under local ordinances; no appointment shall be made on

any basis other than that of merit and fitness;

C. To exercise control of all departments and divisions thereof that may be created by

the Board of Trustees;

D. To attend all meetings of the Village Board unless excused therefrom by the Board;

the Manager shall have the privilege of taking a part in the discussion of all matters

coming before the Board but shall have no vote therein; he shall be entitled to notice

of all meetings, regular and special, of the Board;

E. To recommend to the Board of Trustees for adoption such measures as he may

deem necessary or expedient;

F. To have all the powers and exercise all the duties granted to the Village Clerk and

Comptroller with respect to the preparation of a report of estimated funds

necessary to defray the expenses of the Village for the fiscal year for the

consideration of the Board of Trustees prior to the preparation of the annual

appropriation ordinance;

G. To prepare and submit to the Board of Trustees a monthly report of activities of all

departments under his jurisdiction;

H. To purchase all materials, supplies and equipment for which funds are provided in

the budget, but he may not purchase any items that exceed any working budget

until the Village Board has increased the appropriation; provided that for

purchases of more than $500 he shall be required to receive sealed bids and shall

present such bids to the Village Board for approval or rejection; the Manager shall

advise the Village Board as to whether any contract offered is desirable, or which of

several contracts offered is most desirable for the Village; in case of accidents or

other circumstances creating an emergency, the Village Manager may award

contracts, acquire services, and make purchases for the purposes of repairing

damages caused by the accident or meeting the public emergency; but he shall file

promptly within 14 days with the Village Board a certificate showing such

emergency and the necessity of such action, together with an itemized account of all

expenditures; and

I. To perform such other duties as may be prescribed by Article 5 of Chapter 65 of the

Illinois Compiled Statutes or as may be required of him by ordinance or resolution

of the Board of Trustees.

Section 4.104. Bonds and Compensation. The Village Manager shall furnish a public

employee’s fidelity and performance surety bond as provided by statute, but not less than

the amount of $100,000, to be approved by the Village Board, said bond to be conditioned

on the faithful performance of his duties. The premium of the bond shall be paid by the

Village.

The Village Manager shall receive such compensation as the Village Board shall fix from

time to time by ordinance or resolution.

Section 4.105. Saving Clause. If any section, subsection, or sentence, clause, or phrase of this

Article is for any reason held invalid, such decision or decisions shall not affect the validity

of the remaining portions of this Article. All ordinances of the Village prescribing the duties

of heads of departments shall remain in full force and effect except insofar as they conflict

with the provisions of this Article, in which case the provisions of this Article shall govern.

SECTION TWO: That Article II of Chapter 4 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended in its entirety so that Article II of

Chapter 4 shall hereafter be and read as follows:

ARTICLE II: Department of Law

Section 4.201. Creation of Department — Appointment. There is hereby established a

Department of Law, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department of Law shall be the Village Attorney, appointed by

the Village Manager for an indefinite period of time. The Department of Law shall embrace

such attorneys, clerks, and any other employees as the Village Board may provide by

annual appropriation ordinance.

Section 4.202. Special Counsel. The Village Manager with the consent of the President and

Board of Trustees may from time to time retain special counsel to represent or advise the

Village on legal maters if no Village Attorney has been appointed or to assist the Village

Attorney in those instances deemed necessary.

Section 4.203. Suits and Actions. The Village Attorney shall prosecute or defend any and all

suits or actions at law or in equity to which the Village may be a party, or in which it may

be interested, or that may be brought against or by any officer of the Village on behalf of

the Village or in the capacity of such person as an officer of the Village. With regard to

matters in litigation, the Village Attorney shall have the right of direct communication to

the Village Board. He shall also perform such other duties as may be required of him from

time to time by the Village Manager.

Section 4.204. Judgments. It shall be the duty of the Village Attorney to see to the full

enforcement of all judgments or decrees entered in favor of the Village and of all similar

interlocutory orders.

Section 4.205. Advice. The Village Attorney shall be the legal advisor of the Village and shall

render advice on all legal questions affecting it whenever requested to do so by any Village

official through and with the approval of the Village Manager, except as provided for in

Section 4.203. Upon request by the President and Board of Trustees or the Village Manager,

he shall reduce any such opinion to writing.

Section 4.206. Creation of Office of Village Prosecutor — Appointment. There is hereby

created the office of Village Prosecutor, which is part of the Department of Law under the

control of the Village Attorney. The Village Prosecutor shall be appointed by the Village

Manager and may be the same appointed officer occupying the position of Village Attorney.

Section 4.207. Duties of Village Prosecutor. The Village Prosecutor shall prepare all charges

and complaints against, and shall appear in the appropriate court in the prosecution of,

every person charged with a violation of a Village Ordinance or any regulations adopted

under authority of the Village or charged with the commission of a misdemeanor as

declared by the corporate authorities, or by virtue of its authority. He shall advise and assist

all Village officers or employees, having first obtained consent from the Village Manager,

on questions of law, in filing complaints, making arrests, and preparing for the prosecution

of ordinance violations. He shall also perform such other duties as may be required of him

from time to time by the Village Manager.

SECTION THREE: That Article III and Article VI of Chapter 4 of the Municipal Code of

the Village of _______________, as amended, are hereby further amended by adding

thereto an entirely new Article III of Chapter 4, said Article to be and read as follows:

ARTICLE III: Department of Building and Zoning

Section 4.301. Creation of Department — Appointment. There is hereby established a

Department of Building and Zoning, which shall be under the jurisdiction and control of

the Village Manager. The head of the Department shall be the Director of Building and

Zoning appointed by the Village Manager for an indefinite period of time. The Department

of Building and Zoning shall embrace such inspectors, clerks, and any other employees as

the Village Board may provide by annual appropriation ordinance.

Section 4.302. Duties. It shall be the duty of the Director of Building and Zoning to see to the

enforcement of all ordinances and provisions relating to building, plumbing, or zoning and

to inspect all buildings or structures being erected or altered, as frequently as may be

necessary to insure compliance with the applicable Village Ordinances. He shall perform

such other duties as may be required of him from time to time by the Village Manager.

Section 4.303. Powers. The Director of Building and Zoning shall have the power to order

all work stopped on construction, alteration, or repair of buildings in the corporate limits of

the Village of _______________ when such work is being done in violation of any provisions

of any Ordinance relating thereto, or in violation of the Zoning Ordinance of the Village of

_______________.

A. The Director of Building and Zoning has the stop-order power as set forth in the

Municipal Code of the Village of _______________.

B. The Director of Building and Zoning shall have the power to make or cause to be

made an entry into any building or premises where the work of altering, repairing, or

construction of any building or structure is going on for the purpose of making

inspections at any reasonable hour.

C. The Director of Building and Zoning shall have all the necessary powers as set

forth in the pertinent sections of the Municipal Code of the Village of _______________

relating to building and zoning so as to enforce the Ordinances of the Village of

_______________.

Section 4.304. Chief Electrical Inspector. There is hereby created the office of Chief

Electrical Inspector, who shall be the head of the Electrical Department and ex-officio

Chairman of the Electrical Commission. The Chief Electrical Inspector shall be appointed

by the President with the advice and consent of the Board of Trustees and may be the same

appointed officer occupying the position of Director of Building and Zoning.

Section 4.305. Duties. The duties of the Chief Electrical Inspector shall be the enforcement

of the ordinances of the Village of _______________ relating to electricity and to supervise,

inspect, and approve all electric wires and apparatus. Should any such electric wires or

apparatus be found unsafe to life or property, he shall notify the person, firm, or

corporation owning, using, installing, or operating them to place them in safe condition

within a reasonable time not to exceed five days thereafter. It shall be the duty of such

person, firm, company, or corporation to put such equipment in safe condition.

SECTION FOUR: That Article IV and Article V of Chapter 4 of the Municipal Code of the

Village of _______________, as amended, are hereby further amended so that Article IV of

Chapter 4 shall hereafter be and read as follows:

ARTICLE IV: Department of Public Works

Section 4.401. Creation of Department — Appointment. There is hereby established a

Department of Public Works, which shall be under the jurisdiction and control of the

Village Manager. The head of the Department shall be the Director of Public Works,

appointed by the Village Manager for an indefinite period of time. Within this Department

there must be an individual certified as a Public Water Supply Operator Class A, pursuant

to the Illinois Compiled Statutes, Chapter 415, Sections 45/1 – 45/23. The Department of

Public Works shall also embrace such foremen, maintenance personnel, clerks, and any

other employees as the Village Board may provide by annual appropriation ordinance.

Section 4.402. Duties. The Director of Public Works shall be charged with the following

duties:

A. To keep the streets and alleys clear, free from obstructions, and in good repair;

B. To have the care and custody of the municipal water supply system and all

equipment, pipes and machinery pertaining thereto;

C. To be responsible for the care of all such property, and for the efficient management

of the water supply system;

D. To perform all functions and duties that are imposed by any provision of this Code

on the Director of Public Works, the Superintendent of Streets, or the

Superintendent of Water;

E. To be responsible for the care of all public parkways, trees located on public

property, public properties, and municipal buildings; and

F. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.403. Construction. The Street Department and the Water Department are hereby

combined into a single Department of Public Works, and all employees of the Village of

_______________ who are, as of the date of this Ordinance, employees of the Water

Department and the Street Department shall be employees of the Department of Public

Works. The Department of Public Works shall be under the supervision and direction of

the Director of Public Works. Whenever this Code imposes any function or duties on the

Superintendent of Streets or the Superintendent of Water, such functions or duties shall be

performed by the Director of Public Works.

Section 4.404. Ordinances. The Director of Public Works shall report to the Village

Manager any ordinance violation with respect to the use or care of the streets, alleys, or

sidewalks of the Village of which he may become cognizant. The Director of Public Works,

and all employees of the Department of Public Works, shall be charged with, and shall see

to the enforcement of, any ordinance provisions relating to the streets, alleys, sidewalks, and

water supply system when no provision to the contrary is made.

SECTION FIVE: That Articles VI, VIII, and IX of Chapter 4 of the Municipal Code of the

Village of _______________, as amended, are hereby further amended in their entirety so

that the new Article V shall hereafter be and read as follows:

ARTICLE V: Department of Finance

Section 4.501. Creation of Department — Appointment. There is hereby established a

Department of Finance, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Director of Finance, appointed by the

Village Manager for an indefinite period of time. The Department of Finance shall embrace

such accountants, clerks, and any other employees as the Village Board may provide by

annual appropriation ordinance.

Section 4.502. Duties of Director. The Director of Finance shall be the head of the

Department of Finance and shall be the ex-officio Village Comptroller. In addition to the

duties required by state law and in all cases in which the duty is not expressly charged to

any other department or office, it shall be the duty of the Director of Finance to act,

promote, secure, and preserve the financial and property interests of the Village. He shall

have the following duties, functions and responsibilities:

A. To supervise the Village treasury;

B. To maintain all accounting records, and reports as to Village finance in accordance

with state law and generally accepted accounting principles;

C. To report at least monthly on financial matters to the Village Manager;

D. To establish all procedures relating to the collection, encumbrance, and

disbursement of the Village’s funds;

E. To make recommendations to the Village Manager as to the financial condition of

the Village and suggestions as to its improvement;

F. To approve all building permits before issuance so as to insure the applicant’s

financial compliance with Village ordinances;

G. To maintain an inventory of real and personal property owned or leased by the

Village together with tax exempt records;

H. To supervise all other offices of the Village insofar as they relate to the collection or

disbursement of Village funds;

I. To perform all duties and responsibilities charged to a Village Comptroller,

including the maintenance of special assessment accounts and general obligation

and revenue bond accounts; and

J. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.503. Treasurer. There is hereby created the position of Village Treasurer who shall

be appointed by the Village Manager and shall serve under the Director of Finance. He may

be the same appointed officer occupying the position of Finance Director.

Section 4.504. Bond. The Treasurer shall give a bond before entering upon the duties of his

office in the sum required by the Board of Trustees, but such amount shall not be less than

that required by statute. This bond shall be conditioned on the faithful performance of his

duties by the Treasurer and shall be conditioned to indemnify the Village for any loss by

reason of any neglect of duty or any act of the Treasurer. The premium of the bond shall be

paid by the Village.

Section 4.505. General Duties. The Treasurer shall perform such duties as may be

prescribed for him by statute or ordinance. In addition to other duties, the Treasurer shall

act as Village Collector and perform all duties of such office as may be prescribed by statute

or ordinance and shall preserve all warrants returned to him. He shall receive all money

paid into the Village, and he shall pay out money only on vouchers or orders properly

signed by the President.

Section 4.506. Deposit of Funds. The Treasurer shall deposit the Village funds in such

depositories as may be selected from time to time as provided by statute or ordinance, and

he shall keep the deposit of the Village money separate and distinct from his own money,

and shall not make private or personal use of any Village money.

Section 4.507. Records. The Treasurer shall keep records showing all money received by

him, showing the source from which it is received and the purpose for which it is paid, and

he shall keep records at all times showing the financial status of the Village.

Section 4.508. Accounting. The Treasurer shall keep such books and accounts as may be

required by statute or ordinance, and he shall keep them in the manner required by law

and good accounting principles and as directed by the Director of Finance.

Section 4.509. Special Assessment Funds. All moneys received on any special assessment

shall be held by the Treasurer as a special fund to be applied only to the payment of the

improvement, or bonds and vouchers issued therefor, together with the interest thereon, for

which the assessment was made, and such moneys shall be used for no other purpose, unless

to reimburse the Village for money expended for such improvement. Payments on bonds or

vouchers shall be made in accordance with the statutes and the laws, and the Treasurer

shall keep his books and accounts in such a manner so that proper prorations in payment of

principal and interest can be made and ascertained.

Section 4.510. Warrants — Transfer of Funds. All warrants drawn on the Treasurer must be

signed by the President, stating the particular funds or appropriation to which they are

chargeable and the person to whom payable, and no money shall be otherwise paid except

as may be provided by statute. Money shall not be transferred by the Treasurer from one

fund to another, after it has been received by him, nor appropriated or paid, except as may

be ordered by the President and Board of Trustees in manner and form prescribed by

statute.

SECTION SIX: That Article X of Chapter 4 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended in its entirety so that the new

Article VI shall hereafter be and read as follows:

ARTICLE VI: Department of Engineering

Section 4.601. Creation of Department — Appointment. There is hereby established a

Department of Engineering, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Director of Engineering, appointed by

the Village Manager for an indefinite period of time. The Department of Engineering shall

also embrace such engineers, inspectors, clerks, and any other employees as the Village

Board may provide by annual appropriation ordinance.

Section 4.602. Appointment of Director of Engineering. The Director of Engineering shall be

appointed by the Village Manager for an indefinite term of office. He shall be chosen on the

basis of his professional and administrative competence. He shall have a degree in civil

engineering from an accredited college or university, shall have practical experience in

municipal engineering, and should be licensed as a professional engineer pursuant to the

applicable laws of the State of Illinois.

Section 4.603. Duties. The Director of Engineering shall be responsible for furnishing

professional engineering service to the Village in connection with planning and executing

public works and improvements. He will give technical advice to the Village President and

Board of Trustees upon request from the Village Manager on matters concerning the

development of the Village. His work shall be performed under the direction of the Village

Manager. He shall also perform such other duties as may be required of him from time to

time by the Village Manager.

SECTION SEVEN: That Article XI and Article XII of Chapter 4 of the Municipal Code of

the Village of _______________, as amended, are hereby further amended in their entirety

so that the new Article VII shall be and hereafter read as follows:

ARTICLE VII: Department of Health Services

Section 4.701. Creation of Department. There is hereby established a Department of Health

Services, which shall be under the jurisdiction and control of the Village Manager. The

head of the Department shall be the Director of Health Services appointed by the Village

Manager for an indefinite period of time. The Department of Health Services shall embrace

such inspectors and other employees as the Village Board may provide by annual

appropriation ordinance.

Section 4.702. Duties. It shall be the duty of the Director of Health Services to enforce all

rules, regulations, and orders of the Illinois and __________ County Departments of Public

Health and the ordinances of the Village in relation to matters pertaining to the

preservation of public health within the Village, and he shall

A. Execute and enforce all ordinances of the Village relating to public health and

sanitation;

B. Issue such orders as may be necessary to carry out the rules proposed by the Board

of Health and approved by the President and Board of Trustees;

C. Execute and enforce all ordinances of the Village relating to the health standards

maintained in every place of business in the Village where services of a personal

nature are furnished to the public or where foods, food products, milk, milk

products, and beverages of every nature and description whatsoever are handled,

sold, given away, stored, manufactured, or processed;

D. Investigate the existence of any contagious disease within the Village and report any

contagious disease discovered to the Village Board of Health and to the County

Board of Health, and act without delay in carrying out such measures for

controlling the progress of the disease as the County Board of Health shall propose;

E. Make all necessary sanitary and health investigations and inspections and cause all

nuisances, whether public or private, affecting the health of persons in private

employment and the public generally, to be abated with reasonable promptness;

F. Initiate plans for dealing with public health problems not already included in the

public health program;

G. Perform such other duties relating to health and sanitation as the Village Manager

shall direct; and

H. Request the Police Department of the Village and such other state or municipal

authorities for such assistance as he may deem necessary in the performance of the

duties of his office and cause the arrest of offenders violating any of the Village

ordinances relating to public or private nuisances, public health, and sanitation.

Section 4.703. Reports. The Director of Health Services shall furnish the Board of Health

and the Village Manager a written report ten days after the expiration of each month in

which shall be set forth his activities during the preceding month, the name and address of

each location in which a health violation was discovered, the condition found, the correction

required, and whether there has been compliance.

Section 4.704. Penalty. Any person violating or refusing to obey an order of the Director of

Health Services or concealing any notice posted by or under the authority of the Board of

Health shall be fined no less than $10 or more than $500.

Section 4.705. Office of Health Officer. There is hereby created the office of Health Officer.

The Health Officer shall be a licensed physician qualified to practice in the State of Illinois

who is a resident of and who practices in the Village of _______________. He shall be

appointed by the Village Manager with the approval and consent of the President and

Board of Trustees for an indefinite period. The Health Officer shall serve as a technical

advisor for the Board of Health. He shall supply such information to the best of his ability

on medical matters for consideration by the Board of Health or the Director of Health

Services. The Health Officer shall receive such compensation as may be provided by the

annual appropriation ordinance.

SECTION EIGHT: That Sections 6.101, 6.102, 6.103 and 6.104 of Chapter 6 of the

Municipal Code of the Village of _______________, as amended, are hereby deleted and

new Sections 4.801, 4.802, 4.803, and 4.804 are hereby created; new Sections 4.801, 4.802,

4.803, and 4.804 shall be and read as follows:

ARTICLE VIII: Department of Police

Section 4.801. Creation of Department — Appointment. There is hereby established a

Department of Police, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Chief of Police appointed by the Village

Manager for an indefinite period of time. The Department of Police shall embrace such

officers and members in number and rank as may be provided for from time to time by

resolution of the President and Board of Trustees. The Department shall also embrace such

clerks, radio operators, and other employees as the Village Board may provide by annual

appropriation ordinance.

Section 4.802. Office of Chief of Police. Should the appointment to the position of the Chief

of Police be given to a member of the __________ Police Department, the appointee shall

not lose his then-existing rank as established by the Fire and Police Commission of the

Village of __________ during his tenure as Chief of Police.

Section 4.803. Duties of Chief of Police. The Chief of Police shall be the head of the

Department of Police and shall have the following duties, functions, and responsibilities:

A. To seek the enforcement of all ordinances of the Village and of all statutes effective

in the Village, to preserve order, to prevent infractions of law, and to arrest

violators thereof;

B. To be the keeper of the Village jail and have custody of all prisoners incarcerated

therein;

C. To keep such records and make such reports concerning the activities of his

Department as may be required by statute or ordinance;

D. To be responsible for the performance by the Department of Police of all its

functions;

E. To be the custodian of all lost, abandoned, or stolen property in the Village of

__________; and

F. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.804. Saving Clause. All ordinances or parts of ordinances in conflict herewith are

hereby repealed, and the remaining Sections of Chapter 6 of the Municipal Code of the

Village of _______________, as amended, not in conflict herewith shall remain in full force

and effect.

SECTION NINE: That Sections 7.101 and 7.102 (a) of Chapter 7 of the Municipal Code of

the Village of _______________, as amended, are hereby deleted and new Sections 9.101,

9.102, and 9.103 are hereby created; new sections 9.101, 9.102 and 9.103 shall be and read

as follows:

ARTICLE IX: Fire Department

Section 9.101. Creation of Department — Appointment. There is hereby created a Fire

Department of the Village of _______________, which shall be under the jurisdiction and

control of the Village Manager. The head of the Department shall be the Fire Chief,

appointed by the Village Manager for an indefinite period of time. The Fire Department

shall embrace such officers and firefighters as may be provided for from time to time by

resolution of the President and Board of Trustees. The Fire Department shall also embrace

such other employees as the Village Board may provide by annual appropriation ordinance.

Section 9.102. Office of Fire Chief. Should the appointment to the position of Fire Chief be

given to a member of the __________ Fire Department, the appointee shall not lose his thenexisting

rank as established by the Fire and Police Commission of the Village of

_______________ during his tenure as Fire Chief.

Section 9.103. Saving Clause. All ordinances or parts of ordinances in conflict herewith are

hereby repealed, and the remaining Sections of Chapter 7 of the Municipal Code of the

Village of _______________, as amended, not in conflict herewith, shall remain in full force

and effect.

SECTION TEN: That Section 8.102 of Chapter 8 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended so that Section 8.102 shall be and

read as follows:

Section 8.102. Appointments. All officers shall be appointed or selected by the Village

Manager as provided by statute, ordinance, or resolution, exceptfor all elected officials and

those appointments expressly provided by statute, ordinance or resolution to be made by

the President and Board of Trustees.

SECTION ELEVEN: That Article I of Chapter 8 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended by adding thereto an entirely

new Section 8.114, and 8.114 shall be and read as follows:

Section 8.114. Independent Audits. The President and Board of Trustees shall provide for an

annual independent audit of all accounts of the Village of _______________ for the prior

fiscal year, which audits shall be conducted independently of the Village Manager by some

person or firm selected by the President and Board of Trustees. Full reports of such audits

shall be filed in the public records of the Village. The power with respect to such audits by

the President and Board of Trustees shall not be construed in any manner to limit the

responsibility of the Village Manage for the proper expenditures of Village funds.

SECTION TWELVE: This Ordinance shall be in full force and effect from and after its

passage and approval in the manner prescribed by law.

B. [1.94] Manager Ordinance — By Ordinance

No. ______

AN ORDINANCE CREATING

THE OFFICE OF CITY COMPTROLLER

AND CITY MANAGER AND PROVIDING

POWERS AND DUTIES THEREOF

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF __________ AS

FOLLOWS:

SECTION 1. CREATION OF OFFICE.

There is hereby created the office of City Comptroller, an administrative office of the

City. There is hereby created the office of City Manager, an administrative office of the

City.

Both of these offices, with their functions, duties, and responsibilities, shall be combined

and be held by one person to be known as the City Manager. He shall be the administrative

officer of the City of __________.

SECTION 2. APPOINTMENT OF CITY MANAGER.

The City Manager shall be appointed by the Mayor by and with the advice and consent

of the City Council. The City Manager shall be chosen by the Mayor and that choice shall

be considered by the Council solely on the basis of his executive and administrative

qualification, with special reference to his actual experience in or his knowledge of accepted

practice in respect to the duties of his office hereinafter set forth, and such requirements

and qualifications are hereby declared to be of a nature as to require technical training or

knowledge, and for that purpose it is declared to be expedient that the person considered as

appointee be, if possible, one with an engineering background. At the time of his

appointment he need not be a resident of the City of __________ or of the State of Illinois,

but during his tenure of office he shall reside within the City of __________. No alderman

or Mayor shall receive such appointment during the term for which he shall have been

elected, nor within one year after the expiration of his term.

During the absence or disability of the City Manager, the Mayor with the advice and the

consent of the City Council may designate some properly qualified person to act as City

Manager pro tempore to perform the duties of the office.

SECTION 3. TENURE OF OFFICE.

The term of office of the City Manager shall be co-extensive with and shall not exceed

that of the Mayor appointing him. The City Manager may resign from his office or may be

removed therefrom only in such manner as is provided by the statutes of the State of Illinois

pertaining to the resignation or the removal of appointed officers.

SECTION 4. BOND AND OATH.

Before entering upon the duties of his office, the City Manager shall furnish a surety

bond to be approved by the City Council, said bond to be conditioned on the faithful

performance of his duties. The premium of the bond shall be paid by the City.

Before entering upon the duties of his office, the City Manager shall take and subscribe

the oath prescribed by the statutes of the State of Illinois in such case provided.

SECTION 5. COMPENSATION.

The City Manager shall receive compensation in such amount and manner as the City

Council shall fix from time to time by ordinance or resolution.

SECTION 6. POWERS AND DUTIES WITH REFERENCE TO FISCAL MATTERS.

The City Manager shall be the fiscal agent of the City, and as such shall be charged with

and shall exercise general supervision over all the officers of the City charged in any

manner with the receipt, collection, or disbursement of the City revenues and all funds

required to be in the custody of the City Treasurer.

He shall have custody and control of all documents, including debts, mortgages, leases,

contracts, judgment orders, notes, bonds, and evidences of indebtedness, belonging to the

City except such as are directed by law or ordinance to be deposited elsewhere. He shall

have supervision of the issuance and sale of all bonds, warrants, and obligations.

He shall have supervision over the accounting work of the City. Specifically, but not in

limitation of the above, he shall have the following powers and duties:

A. On or before the 15th day of May in each year and before the annual appropriation

ordinance is prepared by the corporate authorities, he shall submit to the corporate

authorities a report of his estimate, as nearly as may be, of the money necessary to

defray the expenses of the City during the next fiscal year, and in his report, he shall

classify and detail the purposes of expenditures, the aggregate income of the

preceding fiscal year, the City liabilities, and such other information as is necessary

to assist the Mayor and the City Council to adopt an appropriation ordinance.

B. For the purpose of preparing the estimate of income and expenditures, he is

authorized to require all officers to submit statements of the condition and expenses

of their respective offices or departments, a description of proposed City

improvements and the probable expense thereof, a description of all unperformed

contracts and a statement of the amount of all unexpired appropriations of the

preceding year.

C. He shall recommend to the Mayor and the City Council the salaries to be paid each

appointive subordinate employee of the City.

D. With the approval of the City Council, he shall consolidate, combine, or reorganize

positions or units under his jurisdiction, and in the event of any consolidation or

reorganization or the establishment or discontinuance of any places of employment,

he shall notify the Civil Service Commission in writing.

E. He shall purchase all materials, supplies, or equipment subject to and pursuant to

directives and appropriations made and provided by the Mayor and the City

Council, and subject also to the statutes of the State of Illinois pertaining to creation

of liabilities against the City and pertaining to the expenditures or appropriations of

the monies of the City.

F. He shall each month cause to be prepared and shall present to the Council a

statement showing the exact financial condition of the City as of the end of the

preceding month.

G. He shall give such additional reports and information concerning the fiscal matters

of the City as may from time to time be required by the City Council.

H. He shall perform such duties and have such powers as are fixed and conferred on

him as City Comptroller by the statutes of the State of Illinois.

SECTION 7. POWERS AND DUTIES WITH REFERENCE TO CITY MANAGER.

In addition to the above duties, the City Manager shall perform such other duties as are

herein provided.

The City Manager shall be the chief administrative officer of the City and shall be

responsible to the Mayor and to the City Council for the management and operation of all

of the affairs and the departments of the City. As chief administrative officer, he shall have

the management and control of all matters and things pertaining to the operation and

maintenance of the properties of the City and of all of the departments of the City,

including the Department of Public Works, the Fire Department, the Police Department,

the Water Department, the Health Department, the Department of Streets and Sewers, and

the general officers of the City; he shall also have supervision of such other administrative

agencies and departments and officers as may be hereafter created by the City Council

unless the management and control of such departments and officers is expressly delegated

elsewhere. He shall perform his duties in conformity with the civil service laws of the City,

and with the rules of the Police and Fire Commission. Specifically, but not in limitation of

the above, he shall have the following additional powers and duties:

A. He may recommend to the Mayor and to the Council the appointment of all officers

of the City who are required by law to be appointed by the Mayor with the advice

and consent of the City Council, and he may recommend to the Mayor the

appointment of employees and officers who are required to be appointed by the

Mayor. He shall further recommend the removal or suspension of any such officer

or employee when such removal or suspension shall be consistent with the best

interests of the City. All such recommendations for appointment or removal shall be

based on merit and on the qualifications or disqualifications of such officer or

employee without regard to political belief or affiliation.

B. He shall make all necessary purchases of supplies and equipment for all

departments of the City, and for that purpose he is authorized to make expenditures

of $500 or less without preliminary authorization by the Council, provided,

however, that all expenditures and payments, regardless of amount, shall be subject

to the confirmation or approval of the Council and to the limitations imposed by the

adoption of a budget or special appropriation.

C. He shall attend all meetings of the City Council unless excused therefrom by the

Council, except when his removal is under consideration by the Council. He shall

have the privilege of taking part in the discussion of all matters coming before the

Council and shall be entitled to notice of all meetings, regular and special, of the

Council.

D. He shall make investigations into the affairs of the City or any department or

division thereof and shall investigate all complaints in relation to matters

concerning City services and City administration.

E. He shall have the power to appoint and to discharge, subject to rules of the City civil

service, any employee of the City exclusive of employees and officers of the Police

Department and exclusive of regular firefighters employed on a full-time basis, and

as to these excluded employees he shall make his recommendations to the Police and

Fire Commission. Upon discharging any employee, he shall submit to the Council at

the next meeting following such removal a statement concerning the removal and

the reasons therefor.

F. He shall devote his entire time to the discharge of official duties.

G. He shall perform such other duties as may be required of him by the Council

consistent with the City ordinance or the statutes of the State of Illinois.

SECTION 8. OFFICERS NOT TO INTERFERE WITH APPOINTMENTS OR

REMOVALS.

No officer of the City shall dictate the appointment of any person to, or the removal of

any person from office by, the City Manager or by any of his subordinates. Except for the

purpose of inquiry, officers shall deal with the administrative service through the City

Manager, and officers shall not give orders to any subordinates of the City Manager, either

publicly or privately.

SECTION 9. SAVING CLAUSE.

If any section, subsection, or sentence, clause, or phrase of this ordinance is for any

reason held to be invalid, such decision or decisions shall not affect the validity of the

remaining portions of this ordinance. All ordinances of the City prescribing the duties of

heads of departments shall remain in full force and effect except insofar as they conflict

with the provisions of this ordinance, in which case the provisions of this ordinance shall

govern.

BE IT FURTHER ORDAINED by the City Council of the City of __________, Illinois,

that this ordinance shall be in full force and effect from and after its passage, approval, and

publication according to law.

Elections

I. [2.1] Introduction

II. Scope of Chapter

A. [2.2] City of Chicago

B. [2.3] Remainder of State

III. [2.4] Municipal Forms of Government

A. [2.5] Standard System — Mayor-Council or President-Board of Trustees

B. [2.6] Commission

C. [2.7] Strong Mayor

D. [2.8] Managerial

E. [2.9] Modifications by Article VII Referenda

IV. Political Parties

A. [2.10] Partisan vs. Nonpartisan Elections

B. [2.11] Campaign Finance Committees

C. [2.12] Nonpartisan Elections by Referendum

D. [2.13] Write-In Candidates

V. [2.14] Nomination Papers

A. [2.15] Statement of Candidacy

B. [2.16] Loyalty Oath and Code of Fair Campaign Practices

C. [2.17] Petitions

D. [2.18] Receipt from Statement of Economic Interests

E. [2.19] New Political Party — Certificate of Officers

F. [2.20] Principal Proponent for Referenda

G. [2.21] Binding and Pagination

H. [2.22] Special Rules Regarding Caucuses

VI. Local Election Official

A. [2.23] Overview and Guidelines

B. [2.24] Prefiling Advice to Candidates and Petition Distribution

C. [2.25] Computation of Signature Requirements

D. [2.26] Petition Filing Procedures

E. [2.27] Simultaneous-Filing Lottery

F. [2.28] Distribution of Form D-5, Notice of Obligation

G. [2.29] Certification of Ballot and Ballot Order

1. Partisan Elections

a. [2.30] Established Political Party — Nominated by Primary

b. [2.31] Established Political Party — Nominated by Caucus

c. [2.32] New Political Parties

d. [2.33] Independent Candidates

2. [2.34] Nonpartisan Elections

H. [2.35] Vacancies in Nomination

I. [2.36] Canvass and Proclamation

J. [2.37] Recounts

K. [2.38] Absentee Voting Duties of Clerk

L. [2.39] Clerk’s Authority To Refuse To Accept Nomination Papers

VII. [2.40] Objections

A. [2.41] Receipt of Objections

B. [2.42] Membership of Electoral Board

1. [2.43] Recusals

2. [2.44] Disqualifications

3. [2.45] Appointed Clerk

4. [2.46] Problems in Determining Board Membership

5. [2.47] Timing of Determination of Board Membership

6. [2.48] Public Members of Electoral Boards

7. [2.49] Transmission of Objections to Chairman of Electoral Board

8. [2.50] Place of Holding Electoral Board Hearing

9. [2.51] Applicability of Open Meetings Act

10. [2.52] Conduct of Hearing

11. [2.53] Electoral Board Decisions

12. [2.54] Judicial Review of Electoral Board Decisions

VIII. Miscellaneous Issues

A. [2.55] Incompatibility of Offices

B. [2.56] Commencement of Terms

C. [2.57] Eligibility of Debtors to Municipality To Hold Municipal Office

D. [2.58] Eligibility of Felons To Hold Municipal Office

E. [2.59] Voting Rights Act of 1965

F. [2.60] Redistricting

G. [2.61] Prohibitions on Use of Public Funds

H. [2.62] Help America Vote Act of 2002

IX. Appendix

A. [2.63] Sample Letter to Chief Judge Requesting Place of Holding Court Order

B. [2.64] Sample Letter to Chief Judge Requesting Appointment of Public Members to

Electoral Board and Requesting Place of Holding Court Order

C. Sample Call, Agenda, and Rules for a Municipal Officers Electoral Board

1. [2.65] Call

2. [2.66] Agenda

3. [2.67] Rules

I. [2.1] INTRODUCTION

Illinois municipalities were once known for holding some of the more genteel elections in the

political world, perhaps because in many of them elections of the local municipal officials were

routinely uncontested and the results a foregone conclusion long before the ballots were tallied.

However, municipal elections have become more hotly contested in recent years. When

municipal officials confront controversial issues such as land development, taxes, and

employment, local candidates are certain to take opposing views and spur on vigorous campaigns

over them. These hotly contested elections generate legal issues regarding ballot access, election

districts, and voting.

This chapter is meant to provide an overview of municipal elections in Illinois with emphasis

on issues of concern to municipal lawyers and officials. For a detailed study of particular election

issues, the reader is directed to ELECTION LAW (IICLE, 2002, Supp. 2005) (ELECTION

LAW).

II. SCOPE OF CHAPTER

A. [2.2] City of Chicago

The City of Chicago is governed by the provisions of 65 ILCS 20/21-0.01, et seq., the only

article of the Revised Cities and Villages Act of 1941 not repealed by the 1961 adoption of the

Illinois Municipal Code (Municipal Code), 65 ILCS 5/1-1-1, et seq., and many other statutes

contain special provisions affecting only cities of over one million population — hence, only

Chicago. Chicago elected a mayor, a city clerk, a city treasurer, and 50 aldermen on a nonpartisan

runoff basis at the February and April elections in 1999, and subsequent elections are to be held

every four years thereafter. 65 ILCS 20/21-5, 20/21-12, 20/21-22. If no candidate receives a

majority of the votes cast (not a plurality) in the February election, the top two candidates

advance to a runoff election the following April. Candidates for Chicago alderman must live in

the ward they seek to represent for one year preceding their election. 65 ILCS 20/21-14. All

officials take office simultaneously in May regardless of whether they were elected in February or

April. 65 ILCS 5/20-22(a).

After P.A. 89-95, effective January 1, 1996, converted Chicago’s municipal elections to

nonpartisan elections, there was considerable confusion about what signature requirements would

govern petitions for citywide offices. The General Assembly put an end to the confusion with the

enactment of P.A. 94-645, which establishes the requirement at 12,500, or half the previous level

of 25,000. 65 ILCS 20/21-28.

Chicago has unique governmental ethics and campaign financing ordinances, adopted under

the city’s home rule powers, that prohibit candidates for Chicago offices from accepting

campaign contributions over a certain amount from city vendors and contractors. The ordinances

also require incumbents and candidates to file a special statement with the City of Chicago Board

of Ethics in addition to the statement of economic interests filed with the county clerk. Chicago

Municipal Code §§2-156-010, et seq., 2-164-010, et seq.

B. [2.3] Remainder of State

Most municipalities in Illinois elect their officials for four-year terms, with either the entire

slate of officials running together every four years or with half of the council or board elected

every two years. A few municipalities have adopted two-year terms for their officials by

referendum. Even fewer have irregular, customized election systems, such as Winnetka, which

elects its trustees in the both the odd- and even-numbered years. For the special scheduling used

in these municipalities, see §7-56.2 of the Illinois Election Code (Election Code), 10 ILCS 5/7-

56.2.

The system used by a particular municipality is a function of the system established when it

was incorporated, the statutes in force at that time, and any changes made by subsequent statutory

amendments or referenda. While some parts of this chapter are applicable to all municipalities,

some other parts necessarily deal with the overwhelming majority of municipalities that operate

more or less under a standard election system. Exceptions include special charter municipalities,

such as Cicero, and those that have adopted customized election processes.

III. [2.4] MUNICIPAL FORMS OF GOVERNMENT

When drafting any election documents for a municipal candidate or a municipality,

particularly ones relating to a referendum regarding the form of government, it is important to

know what statutory form of government the municipality uses since the sections of the

Municipal Code dealing with each particular form do not provide equivalent referendum

mechanisms.

The summary of the forms of Illinois municipal government below is provided merely to set

the context for the discussion that follows. For a fuller discussion of the differences among the

various forms, the reader is referred to Chapter 1 of this volume.

A. [2.5] Standard System — Mayor-Council or President-Board of Trustees

Most Illinois municipalities operate under the standard form of government. In cities, this

form consists of a mayor, a clerk, and a treasurer elected citywide with a city council composed

of aldermen elected by ward. See Municipal Code §2-2-1, et seq. In most villages, voters elect a

president, a clerk, and a board of trustees village-wide. See Municipal Code §2-3-1, et seq. Some

municipalities, however, have adopted variations on the regular scheme, for instance, by electing

village trustees from districts instead of at-large.

B. [2.6] Commission

About 50 municipalities have adopted the commission form of government in which the

voters elect a mayor and four commissioners. See Municipal Code §4-1-1, et seq. The

commissioners then designate themselves commissioner of public health and safety,

commissioner of public property, and the like.

C. [2.7] Strong Mayor

Although the law has long provided that Illinois municipalities can adopt a strong mayor

form of government by referendum, only one Illinois municipality — Chicago Heights — uses

this form of government. See Municipal Code §6-1-1, et seq. Chicago Heights adopted a variation

of it pursuant to a settlement of a Voting Rights Act lawsuit, but that settlement was struck down

and remanded by the Seventh Circuit Court of Appeals. Harper v. City of Chicago Heights, 223

F.3d 593 (7th Cir. 2000). On remand, the district court ordered that a new government be

established with seven, rather than six, aldermen. Harper v. City of Chicago Heights, 2006

U.S.Dist. LEXIS 5025, No. 87 C 5112 (N.D.Ill. Feb. 8, 2006). Under this form, the elections of

the officers are the same as in the standard form, but the council or board has considerably less

authority over the mayor’s actions.

D. [2.8] Managerial

Similarly, in the managerial form of government, the elections of the officers remain the

same as they would be in the standard form. See Municipal Code §5-1-1, et seq. However, the

manager, rather than the mayor, appoints high-ranking officials. About 80 municipalities operate

under the managerial form of government.

E. [2.9] Modifications by Article VII Referenda

Article VII, §6(f), of the Illinois Constitution provides that voters in home rule municipalities

may “adopt, alter or repeal a form of government provided by law” by referendum or “provide for

[municipal] officers, their manner of selection and terms of office only as approved by

referendum or as otherwise authorized by law.” Section 7 of the same article provides that nonhome

rule municipalities can provide by referendum “for their officers, manner of selection and

terms of office.” Since the enactment of the Constitution, courts have outlined the extent of those

powers in various cases. See Chapter 1 of this handbook and Volume IV of IICLE’s ILLINOIS

MUNICIPAL LAW SERIES (publication scheduled for fall 2006) for a full discussion of these

cases.

There remain unanswered questions as to whether the power to alter the form of government

under Article VII includes the power to adopt “boutique” governmental structures not found in

the statute books. Oak Forest, for example, elects a taxpayer advocate along with its mayor, clerk,

and aldermen. Des Plaines has adopted term limits for its aldermen. The courts have not

considered whether such plebiscites are legal. Similarly, it is unclear whether voters could

establish election cycles other than those specifically provided by law, e.g., electing the mayor,

the clerk, and the treasurer alone one year and electing the entire council two years later.

However, the Illinois Attorney General has opined that voters may adopt non-statutory election

methods such as cumulative voting. Op. Att’y Gen. (Ill.) No. 05-007.

Most referenda to change the form of government are initiated by voters hoping that the

change in structure will bring about changes in policy. However, many petitions to initiate these

referenda — particularly those making changes not readily found in the statutes — are flawed in

that they do not include sufficient detail to establish a workable “statutory” scheme regulating the

new system. See, e.g., Lipinski v. Chicago Board of Election Commissioners, 114 Ill.2d 95, 500

N.E.2d 39, 102 Ill.Dec. 417 (1986).

IV. POLITICAL PARTIES

A. [2.10] Partisan vs. Nonpartisan Elections

With the exception of Chicago and a few municipalities that have abolished party labels in

their elections by referendum under Municipal Code §3.1-25-60, all Illinois municipalities have

partisan elections. In other words, a person can run for mayor or alderman as the candidate of the

Democratic, the Republican, or even, for example, the Vegetarian party. However, in practice,

candidates in many of these nominally partisan towns have historically always run as independent

candidates or as candidates of newly established parties that often alternate their names each

election cycle, which gives the impression that the municipality runs its elections on a

nonpartisan basis.

The distinctions between partisan and nonpartisan elections are very important and often

misunderstood. In a partisan system, candidates run either with a particular party label (e.g.,

“Democratic”) or as independents. In a nonpartisan system, the term “independent” is not

applicable. All candidates are simply nonpartisan.

In a municipality with partisan elections, there are technically two elections in the oddnumbered

election year. The first is the consolidated primary, which is held in February.

Candidates who seek election as candidates of an established political party file in December of

the previous year to run in the February primary against others from that party. Established

parties come from one of two sources. First, §10-2 of the Election Code provides that any parties

receiving more than five percent of the vote for Governor are considered as established political

parties in the state and every smaller jurisdiction within the state. Therefore, for example, even

though no one has run as a Republican candidate for anything in Smallville in history, a person

can file with the Smallville city clerk to run for mayor as a Republican in that city’s February

primary.

Second, if any candidate of a political party receives more than five percent of the vote at the

municipal election for a municipal office, that party becomes “established” in that municipality

until the next election. An example is needed to show exactly how this works. Imagine that

Bigville elects its mayor, its clerk, and three of its six trustees in 2003 and the remaining three

trustees in 2005. If John Doe runs as a candidate for mayor of the “Village Homeowners Party” in

2003 and is trounced by Jane Jones, the incumbent “Renters Party” mayor, by a margin of 93

percent to 7 percent, both the Homeowners and the Renters are established parties for the 2005

election only. Those two party labels no longer belong to their inner circle of candidates and

supporters. As far as ballots go, these names now belong to the public, just as do the labels

“Democratic” and “Republican.” John Doe can file for trustee in the February 2005 Renters Party

primary and not only glom on to the label of his former opponents, but also get first ballot

position if the Homeowners fail to run anyone. Election Code §10-14. If no one runs as a

Homeowners candidate, or if no one for that party gets 5 percent of the vote, the Homeowners

Party becomes disestablished and must file as a new party for the 2007 elections.

Under §§7-5 and 7-12 of the Election Code, if there are no contests for a particular party’s

nominations in a February primary, the primary is not held for that office and the candidate(s)

who filed automatically advance to the April ballot. Note that under these statutes, there could be

a primary for, say, mayor but not for alderman.

To avoid the problem of opponents “raiding” a primary and the need even to run in a primary

in addition to the April general election, many incumbent regimes rotate between two party

names, allowing the last used to wither away and become disestablished every election cycle. The

candidates simply run as a new party slate each election. Once the name becomes disestablished,

it can be recycled two years later as a “fresh” new party name. This method is used in many

communities.

Section 10-5(2) of the Election Code provides that the name of a new political party cannot

be the same as, nor include the name of, an established political party. Thus, for example,

candidates cannot run under the banner of the “New Republican” or, in the example above, the

“Improved Village Homeowners Party.” However, if the “Clean Government Party” is

established, candidates could run as the “Good Government Party.” Needless to say, much

litigation ensues as clever local political leaders try to either massage the names of their popular

opponents’ parties into similar, but just-different-enough appellations or tweak the name of their

own party ever so slightly so that they can run as a new party but still not run afoul of this rule.

See, e.g., Doty v. Representation for Every Person (REP) Party, 97 Ill.App.3d 316, 422 N.E.2d

1156, 52 Ill.Dec. 947 (1st Dist. 1981); Vasquez v. Municipal Officers Electoral Board, 115

Ill.App.3d 1014, 450 N.E.2d 1379, 71 Ill.Dec. 500 (3d Dist. 1983).

B. [2.11] Campaign Finance Committees

Under Article 9 of the Election Code, any person or group that receives or spends more than

$3,000 to support or oppose a candidate must form a campaign finance committee and file public

disclosures of receipts and expenditures. It is quite common, and perfectly legal, for a local

political regime to establish a campaign finance committee that has both a permanent name and a

permanent existence even though the candidates that committee supports will run under different

labels from year to year. For instance, the incumbents in Bigville may form the “Bigville Renters

Party Campaign Finance Committee” and use money from that fund to support not only Renters

Party candidates in 2005, but also their allies running two years later under the barely disguised

“Leasers Party” label.

The distinctions and relationships between campaign finance committees (governed by

Article 9 of the Election Code) and established or new political parties (governed by Article 10)

are confusing. Using the example above, some have argued that the Leasers Party should be

removed from the ballot because the Leasers candidates are not forming a new political party but

are really members of the Renters Party and are all donors, officers, or otherwise affiliated with

the Renters Party. However, this assertion is not true. The Leasers candidates can form and run

under a new party name but fund their campaign from their Renters Party kitty. The Renters Party

is both a campaign finance committee and an established political party. The Leasers Party is a

new political party funded through an existing campaign finance committee of another name. Any

group of candidates can form a new party slate to run at an election regardless of their past

affiliations with other parties.

C. [2.12] Nonpartisan Elections by Referendum

As noted in §2.10 above, voters in a municipality can order by referendum that all party

labels be removed from their municipal ballots. When this happens, no one ever runs as an

independent; everyone simply runs as a nonpartisan candidate. A nonpartisan election referendum

also changes other features of municipal elections besides the candidates’ labels. Instead of filing

directly for the April election, candidates all file for a putative February primary during the earlier

filing cycle for that election. If more than twice as many candidates as there are positions to be

filled file for a particular office, then all candidates for that office run in the February primary.

Twice as many candidates as there are open positions (those with the highest vote totals) advance

to the April election. For example, if there are three trustee positions to be filled and eight

candidates run, all eight run in February, and the top six advance to April. On the other hand, if

only twice as many or fewer file, there is no February primary for the office and all advance to

April. Municipal Code §§3.1-25-20 through 3.1-25-60.

Even under a nonpartisan system, candidates for different offices could still campaign and

raise funds together out of a unified political campaign committee. However, they cannot file a

slate petition nominating more than one candidate. Each nonpartisan candidate, and independent

candidates for that matter, must file their own set of nomination papers.

D. [2.13] Write-In Candidates

Write-in candidates elected at a general election are not considered affiliated with any

political party for ballot purposes. Write-in candidates nominated at a primary election carry the

party label of the party whose voters successfully nominated them with their write-in votes.

V. [2.14] NOMINATION PAPERS

To run for election, a candidate must file several documents that, once filed, commence the

process that will ultimately result in the person’s name appearing on the ballot. These documents,

collectively referred to as “nomination papers,” must include petition sheets, a statement of

candidacy, and a statement of economic interests, each of which serves a distinct purpose in the

electoral process. Candidates must give special care to the precise form and contents of each of

the required documents because an error on any of them may result in the candidate’s being

knocked off the ballot for failing to follow a mandatory requirement of the Election Code. See

§2.40, et seq., below regarding objections.

In addition to the required documents, some candidates choose to file a loyalty oath and the

Code of Fair Campaign Practices form. See §2.16 below.

A. [2.15] Statement of Candidacy

The Election Code requires candidates to file a statement of candidacy attesting to certain

facts. Each statement of candidacy must include the candidate’s name and address, the name of

the office the candidate seeks, a statement that the candidate possesses any required qualifications

for the office sought, and a declaration that the candidate has filed (or will file before the close of

the petition filing period) a statement of economic interests. Election Code §10-5. The statement

of candidacy must also request that the candidate’s name be placed on the official ballot and must

be sworn to by the candidate in the presence of a notary public. For a sample statement of

candidacy, see §1.64 of ELECTION LAW. As with all election-related forms, including those

distributed by the Illinois State Board of Elections or local election officials such as county or

municipal clerks, the sample statements in ELECTION LAW should be used with great caution

as the required form differs depending on factors such as the candidate’s political party

affiliation, whether the municipality elects trustees on a nonpartisan basis, etc.

The statement of candidacy’s purpose is to establish that the candidate desires and is qualified

to run for the office sought. Lewis v. Dunne, 63 Ill.2d 48, 344 N.E.2d 443 (1976). Generally, the

best practice is for the candidate to file the statement of candidacy at the same time as the other

nomination papers and to bind it together with those papers. However, as long as the statement of

candidacy is filed before the expiration of the filing period, it will still be considered sufficient

even if it is filed later than the other nomination papers. Ballentine v. Bardwell, 132 Ill.App.3d

1033, 478 N.E.2d 500, 88 Ill.Dec. 185 (1st Dist. 1985). The courts have construed the

requirement that a candidate file a statement of candidacy as mandatory under the Election Code.

See Serwinski v. Board of Election Commissioners of City of Chicago, 156 Ill.App.3d 257, 509

N.E.2d 509, 108 Ill.Dec. 813 (1st Dist. 1987); Bowe v. Board of Election Commissioners of City

of Chicago, 614 F.2d 1147 (7th Cir. 1980). Therefore, a candidate’s complete failure to timely

file a statement of candidacy is a fatal infirmity to the candidate’s nomination papers.

B. [2.16] Loyalty Oath and Code of Fair Campaign Practices

Section 7-10.1 of the Election Code requires a candidate to include an oath swearing that the

candidate is not affiliated with a communist organization or with any agency or organization that

advocates the overthrow of constitutional government. Section 10-5 of the Election Code also

adopts this requirement. However, a federal court has held that this requirement is

unconstitutional in Communist Party of Illinois v. Ogilvie, 357 F.Supp. 105 (N.D.Ill. 1972), so a

candidacy cannot be invalidated merely because the candidate did not file a loyalty oath.

However, notwithstanding the fact that the filing of a loyalty oath is essentially optional, most

candidates file the oath anyway for political purposes.

Another document some candidates choose to file, but that is not required, is the Code of Fair

Campaign Practices form. The Illinois General Assembly adopted the Code of Fair Campaign

Practices to encourage candidates to “follow the basic principles of decency, honesty and fair

play in order to encourage healthy competition and open discussion of issues and candidate

qualifications and discourage practices that cloud the issues or unfairly attack opponents.”

Election Code §29B-5. The Code of Fair Campaign Practices contains a series of ethical

statements to which the subscriber promises to adhere during a campaign. Election Code §29B-

10. Because this oath is voluntary, the failure to file the Code of Fair Campaign Practices will not

invalidate a candidacy.

Once a candidate signs the Code of Fair Campaign Practices, it may be filed with the State

Board of Elections or the county clerk, where it will be retained until 30 days after the election as

a public record available for public inspection. Election Code §29B-20. If a candidate subscribes

to the Code and files it, the candidate may appropriately state that fact on campaign literature or

advertising materials. Election Code §29B-30.

C. [2.17] Petitions

Perhaps the most important documents a candidate files are the petition sheets bearing the

signatures of registered voters who seek to have the candidate’s name appear on the ballot. The

petition signers must be qualified electors residing in the municipality (or ward or district if

applicable). Election Code §10-4. Petitions are required to demonstrate that candidates for public

office enjoy a modicum of public support. See Richards v. Lavelle, 620 F.2d 144, 149 n.4 (7th

Cir. 1980). This requirement prevents ballot congestion and protects the state’s interest in

preserving the integrity of the electoral process and in regulating the number of candidates on the

ballot. American Party of Texas v. White, 415 U.S. 767, 39 L.Ed.2d 744, 94 S.Ct. 1296, 1307

n.14 (1974); Bowe v. Board of Election Commissioners of City of Chicago, 614 F.2d 1147, 1151

(7th Cir. 1980).

The minimum number of signatures a candidate is required to file varies based on the office,

the district, and the candidate’s partisan status. The general “recipe” for municipal officers

running as independents, nonpartisans, or new party candidates is five percent of the votes cast at

the last municipal election. Election Code §10-2. Note that this is five percent of the actual

number of voters who appeared and voted — not of the number of aggregate votes received by

the various candidates for any particular office. The number of voters will always be more than

the total votes received because many voters skip parts of the ballot. The five percent is computed

municipality-wide for at-large offices and from the ward or district for offices elected from those

areas. Additionally, the base election is the last election at which an officer was elected to serve

that particular jurisdiction. Some election authorities do not bother to compute how many voters

actually voted by municipality, as opposed to by precinct. When the precincts are exactly aligned

with the municipal boundaries, the computation is simple. However, when the municipal limits

split across precinct lines, it may be necessary to resort to review of the applications for ballot and

hand-count them to determine the turnout of voters in the municipality. Rather than go through

such trouble, it may be easier to presume that the entire precinct is in the municipality and thus

include a margin for error.

For instance, in Smallville, aldermen from Wards 1, 3, and 5 were elected in April 2001 to

serve four-year terms. In April 2003, a mayor and a clerk were elected citywide and aldermen

were elected from Wards 2, 4, and 6 and from Ward 1 to fill an unexpired term. In April 2005, the

signature requirements for the mayor and clerk are based on the total votes cast in 2003, those for

aldermen of Wards 1, 2, 4, and 6 on the total cast in 2003, and those for aldermen of Wards 3 and

5 on the total cast in 2001.

There is a maximum signature limitation for independent candidates. They are subject to the

same five-percent minimum requirement but cannot file more than eight percent or 50 more than

the minimum, whichever is greater. Election Code §10-3. For instance, if the number of votes

cast in the base year was 900, the minimum signature requirement is 45 and the maximum is not

72, but 95 (45 plus 50 is greater than eight percent of 900, or 72). While candidates are welladvised

not to exceed the minimum signature requirement because of the political charge that

they are unqualified for office because they cannot count, the United States court of appeals has

held that it is unconstitutional to remove a candidate from the ballot merely because he or she

filed too many signatures. Richards, supra. Therefore, municipal clerks should simply ignore the

maximum signature requirement.

For established party candidates, the requirement is one half of one percent of the qualified

party primary electors from the immediately preceding municipal primary for each municipal

officer or alderman running at large. For aldermen or trustees running from districts or wards, the

requirement is one half of one percent of the qualified party primary voters from the ward or

district, but in any event not less than 25 qualified electors of the party in the ward or district.

Election Code §7-10(e). The one exception is that candidates for mayor and trustees in

municipalities with the commission form of government must receive a number of signatures

equal to at least one percent of “the total vote cast at the last preceding election in the

municipality for mayor.” Municipal Code §4-3-8.

The Election Code precisely specifies the required form and elements for petition sheets in

§§7-10 (established parties) and 10-4 (new parties, nonpartisans, and independents). The

requirements established for the contents of petition sheets are generally considered mandatory,

not directory. Lawlor v. Municipal Officer Electoral Board, 28 Ill.App.3d 823, 329 N.E.2d 436

(1st Dist. 1975). Because the elements are mandatory, a candidate’s failure to adhere to the

Election Code’s requirements regarding petition contents can result in a candidate’s being denied

ballot access if the candidate’s petitions are challenged.

The candidate’s petitions must contain a heading stating that the signers request that the

candidate’s name appear on the ballot for the listed office at the specified election and on the date

established by law. Election Code §§7-10, 10-4. The heading must clearly specify the legal name

of the office sought and should properly identify the district and the type and date of the election.

The heading on each sheet must be the same, and the petition sheets must be uniform in size.

Election Code §§7-10, 10-4.

The petition must clearly identify the candidate’s name as it will appear on the ballot as well

as the candidate’s residential address. Election Code §§7-10, 10-4. A candidate may run under a

nickname as long as it is a name by which the candidate is commonly known (e.g., “Bob” for

Robert) and not a contrived political nickname (e.g., “Cut the Taxes”). Election Code §§7-10.2,

10-5.1. The Election Code prohibits a candidate from using a title (e.g., “King Arthur”), a degree

(e.g., “Dr. Dolittle”), or a professional status (e.g., “Rev. Martin Luther King” or “Perry Mason,

Esq.”). Id. The same sections permit local election officials, such as municipal clerks, to excise an

offending nickname from the ballot certification. Election Code §§7-17, 8-8.1, 16-3. It would be

wise to give such a candidate some notice before taking that action. More often than not, a

candidate with an improper nickname will face an objection anyway, on the basis of such case

law as Jones v. Municipal Officers Electoral Board, 112 Ill.App.3d 926, 446 N.E.2d 256, 68

Ill.Dec. 522 (1st Dist. 1983) (holding that use of “Reverend” invalidated nomination petitions

completely). If the candidate will be removed by virtue of a proper objection, the municipal clerk

might want to briefly hold off using the clerk’s relatively weak power to remove the nickname

but leave the candidacy itself intact to see if the objection process will instead invalidate the

candidacy entirely.

A new political party name must be expressed in five words or less and must not be the same

name as, nor include the name of, any established political party (e.g., “The Smallville

Republican Party” would be impermissible). Election Code §10-5.

In addition to the heading and signatures, each petition sheet must contain at the bottom “a

circulator’s statement, signed by a person 18 years of age or older who is a citizen of the United

States.” Election Code §10-4. This requirement was changed in response to Krislov v. Rednour,

226 F.3d 851 (7th Cir. 2000), which held unconstitutional the former requirement of §10-4 that

each petition sheet contain a sworn oath of “a registered voter of the political subdivision, who

has been a registered voter at all times he or she circulated the petition.” The circulator’s affidavit

must affirmatively state that the circulator meets all of the statutory requirements. As the prior

standard form stated that the circulator was a registered voter but contained no assertions

regarding citizenship or age, those forms are now invalid and should not be used. The person

subscribing such an oath, known as a “circulator,” must also attest that all of the signatures on the

sheet were signed in the circulator’s presence and are genuine and indicate that the dates the sheet

was circulated fall within a certain time period. Election Code §10-4. For additional discussion of

the required elements of petitions and substantive issues involving technical defects in petitions,

see Chapter 1 of ELECTION LAW.

When different term lengths are available, it is crucial for the candidate to properly designate

the specific length on his or her nomination papers, regardless of whether the candidate seeks the

long or short term. It seems especially important to do so on the petition sheets signed by the

voters. Heabler v. Municipal Officers Electoral Board, 338 Ill.App.3d 1059, 789 N.E.2d 854, 273

Ill.Dec. 680 (2d Dist. 2003). The same holds true, by analogy, with respect to filling a vacancy

for a shortened term even if only one position is available, as in the case of a vacancy for mayor.

In that case, the nomination papers should specify the vacancy throughout by language such as

“to fill the vacancy of the Honorable Harold Washington.” Baird v. Town of Cicero Municipal

Officers Electoral Board, No. 03 COEL 1 (Cook Cty.Cir. Jan. 31, 2003) (Judge Gillis).

D. [2.18] Receipt from Statement of Economic Interests

Section 4A-101, et seq., of the Illinois Governmental Ethics Act (Ethics Act), 5 ILCS 420/1-

101, et seq., requires candidates to file a statement disclosing financial connections and interests,

known as a “statement of economic interests.” Essentially, Illinois law establishes two separate

statements of economic interests: one that is filed with the Secretary of State for state officials

and candidates and one that is filed with the local county clerk — not with the municipal clerk —

for everyone else. Ethics Act §4A-106. The forms have slightly different questions, and a

statement filed on the wrong form, or in the wrong location, is fatally defective. Additionally, a

statement filed in connection with someone’s employment, say, as a school superintendent, is

meaningless with respect to that individual’s candidacy for municipal office. The person must file

a second statement in relation to the municipal candidacy. The statute now provides that one may

file a statement of economic interests for two separate positions on one form as long as the offices

are of the type that file with the same office (i.e., county clerk or Secretary of State). Nonetheless,

election attorneys still wisely counsel their clients, incumbents or not, to file a separate new

statement of economic interests relating specifically to their candidacy.

The statement must be filed no later than the last date for the filing of nomination papers.

Ethics Act §4A-105(a). The purpose of this requirement is to allow the public to have access to

certain information that may divulge a candidate’s conflict of interest. Miceli v. Lavelle, 114

Ill.App.3d 311, 448 N.E.2d 989, 70 Ill.Dec. 111 (1st Dist. 1983).

When the candidate files the statement, the county clerk will issue the candidate a receipt

demonstrating compliance with the Ethics Act. Ethics Act §4A-106. The candidate must file this

receipt with the municipal clerk no later than the last day that nomination papers may be filed.

Election Code §10-5. The filing of the receipt within the time period is mandatory. Bolger v.

Electoral Board of City of McHenry, 210 Ill.App.3d 958, 569 N.E.2d 628, 155 Ill.Dec. 447 (2d

Dist. 1991). Additionally, the statement of economic interests also must be filed in the same

calendar year that petitions are filed with the local election official (municipal clerk). As a result,

candidates who, for example, file in 2007 but use receipts for statements filed late in 2006 will

have invalid nomination papers. Jenkins v. McIlvain, 338 Ill.App.3d. 113, 788 N.E.2d 62, 272

Ill.Dec. 758 (1st Dist. 2003). The Ethics Act expressly provides that a candidate’s failure to

timely file a statement of economic interests “shall result in ineligibility for” the office the

candidate seeks. Ethics Act §4A-107. The Election Code mirrors this requirement by specifying

that nomination papers “are not valid if the candidate . . . fails to file a statement of economic

interests.” Election Code §10-5. Further, the failure to file a statement of economic interests is a

Class A misdemeanor. Ethics Act §4A-107.

Care should be taken to list the title of the office on the statement of economic interests and

receipt explicitly, for example, “Alderman, Ward 5, City of Smallville,” not merely “Alderman”

or “City Council.”

E. [2.19] New Political Party — Certificate of Officers

Candidates running as members of a new political party must attach to their nomination

papers a certificate stating the names and addresses of the party officers authorized to fill

vacancies in nomination in the event that such a vacancy occurs. Election Code §10-5. The State

Board of Elections has issued SBE Form P-8C, Certificate of Officers, to be used for this

purpose. A party’s failure to file a Certificate of Officers cannot result in the removal of the entire

slate from the ballot. Peoples Independent Party v. Petroff, 191 Ill.App.3d 706, 548 N.E.2d 145,

138 Ill.Dec. 915 (5th Dist. 1989). However, if the candidates fail to file the certificate and a

vacancy in nomination occurs in the new political party, the party will not be able to make an

appointment to fill the vacancy.

F. [2.20] Principal Proponent for Referenda

Article 28 of the Election Code addresses the procedure by which questions of public policy

are submitted to a vote, or referendum. A person or group that files petitions seeking to put a

referendum on the ballot should attach a certificate to the petitions designating the principal

proponent of the referendum. Election Code §28-5(a). However, if no such statement is filed, the

referendum petitions are still valid. Johnson v. Theis, 282 Ill.App.3d 966, 669 N.E.2d 590, 218

Ill.Dec. 447 (2d Dist. 1996). The certificate provides the local election official with a person on

whom to serve objections if the petitions are challenged. If no principal proponent is named, the

municipal clerk should at least have service made on the person who filed the petitions. For

additional information regarding referenda, see Chapter 15 of ELECTION LAW.

The signature requirement for advisory referenda is eight percent of the vote cast for all

candidates for Governor in the municipality at the last general election for that office. 10 ILCS

5/28-6. This would include not only the Democratic and Republican hopefuls, but also those

running as third-party candidates. Just as noted in §2.17 above, it is unlikely that an election

agency will publish the gubernatorial results by municipality. When there are no resources

available to divide out the gubernatorial vote for the part of a precinct within the boundaries of

the municipality, the wise course for a proponent is to err on the side of caution and simply

presume that the entire precinct, and hence all gubernatorial votes, are on the “right” side of the

line.

G. [2.21] Binding and Pagination

While some of the Election Code’s requirements regarding the filing of petitions can be

complicated, some of the simpler requirements of the process have trapped numerous candidates.

Among other things, §10-4 of the Election Code requires that candidates present their nomination

papers “neatly fastened together in book form, by placing the sheets in a pile and fastening them

together at one edge in a secure and suitable manner.” In Jones v. Dodendorf, 190 Ill.App.3d 557,

546 N.E.2d 92, 137 Ill.Dec. 468 (2d Dist. 1989), the court criticized a candidate for attaching his

nomination papers with a paper clip. The district court also upheld the removal of a candidate

from the ballot for failure to securely bind nomination papers in Stanbuck v. Kusper, No. 71 C

217 (N.D.Ill. 1971) (unpublished order). One divided electoral board found that a three-fourthsinch

black “binder clip fastener” constituted a secure fastening of the candidate’s nomination

papers, with the other portion of the electoral board believing that, to the contrary, the papers

were “loosely filed.” Ronning & Hombs v. Davis, No. 97-RLBEB-2 at 1-L (Round Lake Beach

Electoral Bd. Feb. 27, 1997).

Section 10-4 of the Election Code also requires that petition sheets “be numbered

consecutively.” This elementary requirement has been fodder for many appellate court cases.

Originally, courts held that a candidate’s failure to number one or a few of dozens of sheets was

“a mere technicality and cannot invalidate a petition.” See Williams v. Butler, 35 Ill.App.3d 532,

341 N.E.2d 394, 397 (4th Dist. 1976); Stevenson v. County Officers Electoral Board, 58

Ill.App.3d 24, 373 N.E.2d 1043, 1044, 15 Ill.Dec. 571 (3d Dist. 1978). This principle was

subsequently rejected by Jones, supra, in which the candidate failed to number any of the pages.

In rendering its opinion, the Jones court found that the pagination requirement served two

purposes related to the preservation of the integrity of the electoral process because it guaranteed

identification and reference to specific petition pages and it prevented tampering with the

petitions once they were filed. 546 N.E.2d at 95. These cases could originally be reconciled as

creating a rule that a candidate’s failure to number all pages was fatal, but that a failure to number

a few of the pages was not. However, since Jones, the courts have not consistently construed the

pagination requirement. See, e.g., Wollan v. Jacoby, 274 Ill.App.3d 388, 653 N.E.2d 1303, 210

Ill.Dec. 841 (1st Dist. 1995). For a thorough discussion of the development of the pagination law,

see Chapter 1 of ELECTION LAW.

Because of the controversy over pagination and binding and the difficulty in proving how

something was filed after the fact, municipal clerks should carefully note if a petition is not

paginated, is incorrectly paginated, or is unbound when filed by writing a description of the

discrepancy on the receipt made at the time of filing and given to the candidate. If the nomination

papers are not paginated, a count should be made in the presence of the candidate so that there is

no doubt later on that pages have been surreptitiously removed. Since nomination papers, once

filed, cannot be withdrawn or altered, candidates are bound by the form of the documents filed

once they are handed to the clerk.

There are two recent reported cases on binding. The first is Bendell v. Education Officers

Electoral Board for School District 148, 338 Ill.App.3d 458, 788 N.E.2d 173, 272 Ill.Dec. 869

(1st Dist. 2003). The Bendell court held that the binding requirement was mandatory and that

failure to bind at all would be fatal. However, the court held, in what it characterized as a highly

fact-based case, that a single paper clip holding a six-page set of nomination papers together was

“substantial compliance” with the binding requirement. 788 N.E.2d at 178. Accordingly, the court

held that the candidate could remain on the ballot. On the other hand, the court in Girot v. Keith,

341 Ill.App.3d 902, 793 N.E.2d 935, 276 Ill.Dec. 176 (3d Dist. 2003), rev’d on other grounds,

212 Ill.2d 372 (2004), held that petitions bound by a paper clip were per se invalid.

Although the two conflicting appellate cases now “control” the law of petition binding, there

are numerous electoral board and circuit court decisions on the issue. To the effect that the

binding was improper, see Anderson v. Municipal Officers Electoral Board, No. 99 CO 53 (Cook

Cty.Cir. Feb. 12, 1999) (petitions placed in envelope); Rivers v. Calumet City School District No.

155 Educational Officers Electoral Board, No. 01 CE 16 (Cook Cty.Cir. Mar. 9, 2001) (not

bound at all); Braxton v. Mahoney, 63 N.Y.2d 691, 468 N.E.2d 1111, 479 N.Y.S.2d 974 (1984)

(spring clip inadequate); Bouldin v. Scaringe, 133 A.D.2d 287, 519 N.Y.S.2d 72 (1987) (spring

clip inadequate). But see Jones v. Scaringe, 143 A.D.2d 294, 532 N.Y.S.2d 180 (1988) (enough

staples may be sufficient).

Similarly, as binding — or the lack thereof — has engendered considerable litigation, the

local election official should not unbind the petitions at any time, or at least during the filing

process. If necessary, the papers may be unbound to make photocopies at a later time, but a

careful record should be made of how they were originally bound, and efforts should be made to

rebind them in exactly the same way as originally presented. The authors are familiar,

anecdotally, with one local clerk who deliberately unbound a candidate’s petitions as they were

being handed over for filing, despite the candidate’s protests that they be kept bound so as to

comply with the statutory binding requirement. The candidate’s nomination papers were later

objected to by allies of the clerk on the basis that the petitions were not bound when filed.

Candidates who run in such municipalities where the local elections rule is “anything goes” might

want to bring along a video camera on filing day.

H. [2.22] Special Rules Regarding Caucuses

In municipalities with populations of 5,000 or less, established political parties may slate their

candidates through a caucus procedure, saving the cost of a primary election. Election Code §10-

1(a). In the alternative, the municipality can, by ordinance, determine that established political

parties shall nominate candidates for municipal office by primary. Election Code §10-1(d). In

municipal election years, municipal caucuses must be conducted on the Monday immediately

preceding the first day for filing caucus certificates of nomination. Election Code §10-1(a).

(Municipalities can contact the State Board of Elections for the precise date.) At the caucus,

voters within the municipality make one nomination for each municipal office to be filled at the

election. Id. The presiding officer and secretary of the caucus then prepare a certificate of

nomination, which must be filed with the municipal clerk no earlier than 78 and no later than 71

days before the election. Id.

While very few municipalities use this official caucus procedure, many use an informal

caucus procedure to slate candidates for new political parties. Under this informal procedure, a

community group conducts a meeting that it calls a “caucus” at which it interviews candidates

and then “nominates” candidates to receive the caucus endorsement. These candidates must then

circulate petitions under the new party name. While the statutes contain no mechanism by which

municipalities with populations in excess of 5,000 may conduct caucuses, this informal caucus

procedure works very well in many communities that prefer to have an endorsed slate of

candidates who have been previously screened by a community group. The most significant

difference between these two types of caucuses is that municipalities with populations of less than

5,000 may file a certificate of caucus to have the names of the slated candidates appear on the

ballot, while candidates selected in informal caucuses in larger municipalities must follow the

traditional petition-circulation process to appear on the ballot. When these unofficial caucuses are

used, there is nothing to stop candidates who were unsuccessful in obtaining the caucus’

endorsement from running on their own against the caucused-endorsed ticket.

VI. LOCAL ELECTION OFFICIAL

A. [2.23] Overview and Guidelines

For purposes of municipal elections, the “local election official” is the municipal clerk.

Election Code §1-3(10). This is distinguishable from the local “election authority,” which is

either the county clerk or the municipal or county board of election commissioners in those few

counties or municipalities that have them. Election Code §1-3(8). The local election official has

several responsibilities during the election process, and the purpose of §§2.23 – 2.39 of this

chapter is to provide an overview of those duties.

B. [2.24] Prefiling Advice to Candidates and Petition Distribution

Municipal clerks do not have any official election responsibilities prior to the first date for the

filing of petitions, but the State Board of Elections strongly encourages local election officials to

give a prefiling notice, generally in the form of a press release issued to a local newspaper,

indicating the time and location for the filing of nominating petitions. Notwithstanding the

absence of other prefiling responsibilities, many municipal clerks choose to assist in the petition

process by making petitions and other documents available in their offices and by providing

candidates with information regarding the circulation process.

If clerks opt to provide such documentation, they should have the documentation reviewed by

their local municipal attorney or by an attorney specializing in election law prior to distribution.

However, any candidate who accepts such documentation does so at his or her potential peril.

When a community college distributed nominating petition forms that failed to include specific

spaces for necessary information that candidates then omitted, the court held that the college’s

undertaking of the distribution of petition forms did not absolve candidates of the duty to provide

the information required to ensure a place on the ballot. Schumann v. Kumarich, 102 Ill.App.3d

454, 430 N.E.2d 99, 58 Ill.Dec. 157 (1st Dist. 1981).

Some clerks have distributed improper forms, believing that because the forms were procured

from the State Board of Elections, they were in the correct legal format. However, election laws

frequently change, and even the State Board of Elections has been known to provide incorrect

information. As a result, any clerk who voluntarily makes petitions and forms available to the

public should do so only after reviewing the materials with an appropriate attorney and even then

should issue the forms only with a strong written disclaimer indicating that the clerk makes no

representations regarding the validity of the forms and that anyone who uses them does so at his

or her own risk. Note, however, that P.A. 94-030 amended §28-2 of the Election Code to address

the recurring problem of municipal and other governmental officials deliberately or negligently

distributing faulty backdoor referendum petitions. Referendum proponents might justifiably rely

on these model forms, as local officials in governments proposing backdoor bond issues are

required to provide them. The new law states: “The legal sufficiency of that form, if provided by

the secretary or clerk of the political subdivision, cannot be the basis of a challenge to placing the

back door referendum on the ballot.”

C. [2.25] Computation of Signature Requirements

In addition to making forms available, some clerks also choose to give out information

regarding other aspects of the ballot-access process, such as the number of signatures a candidate

must procure to appear on the ballot. The substance of one clerk’s incorrect advice was at the

center of the dispute in Merz v. Volberding, 94 Ill.App.3d 1111, 419 N.E.2d 628, 50 Ill.Dec. 520

(1st Dist. 1981). In Merz, the city clerk prepared and distributed an information sheet that

incorrectly set forth the minimum and maximum signature requirements needed to run for

municipal offices. As a result, candidates relied on the incorrect information and submitted

petitions that did not have sufficient signatures under the proper calculation formula. While the

court ultimately allowed the candidates to remain on the ballot on the basis of estoppel, the clerk

could have avoided the error by checking the information with the city attorney and distributing a

disclaimer to candidates. See also Brennan v. Kolman, 335 Ill.App.3d 716, 781 N.E.2d 644, 269

Ill.Dec. 847 (1st Dist. 2002).

D. [2.26] Petition Filing Procedures

Candidates for municipal offices and proponents of referenda are required to file their

nominating petitions with the municipal clerk. Election Code §10-6. The filing must occur in the

clerk’s customary office and within customary office hours. Daniels v. Cavner, 404 Ill. 372, 88

N.E.2d 823 (1949) (holding that a candidate’s attempt to present nominating petitions to city

clerk at his home after office hours was not timely under statute). If, however, the municipality

does not have an official office, the clerk (or his or her designee) should receive petitions at a

location and during times designated by the clerk. Notice of the time and location should be given

in a newspaper of general circulation and posted in a conspicuous public location. The location

designated for petition filing must remain open until 5:00 p.m. on the last day of petition filing.

Election Code §1-4.

Upon the receipt of petitions, the clerk must accept all nomination papers that are in apparent

conformity with the Election Code and should issue a receipt for them. See the State Board of

Elections’ LOCAL ELECTION OFFICIALS HANDBOOK FOR THE 2005 CONSOLIDATED

ELECTIONS (2005), p. 9, available at www.elections.state.il.us/ElectionInformation/

DownloadLocal.aspx. (At the time this handbook went to press, the 2007 State Board of

Elections’ LOCAL ELECTION OFFICIALS HANDBOOK had not yet been printed. Readers

should be sure to update citations from the 2005 HANDBOOK when the new edition is

available). (For an additional discussion of exactly what clerks must accept, see §2.39 below.)

The receipt should bear the time and date of the filing. The clerk must also date-stamp and timestamp

the nomination papers themselves. Election Code §10-6.2. The nomination papers must be

preserved for no less than six months. Election Code §10-7. All nomination papers must be made

available for public inspection and copying at all times. Id. Because they are governed by this

provision of the Election Code, municipal clerks should not require Freedom of Information Act

requests to review nomination papers. Copies of nomination papers should be provided

immediately, or as soon as possible, so that objections can be prepared during the required time

frame. The municipality can charge the usual copying cost, but it should charge the cost equally

to all requesters, including incumbents who may be used to receiving free copies of municipal

documents.

If a candidate files multiple sets of nomination papers for the same office, the clerk shall

notify the candidate within two business days that the candidate has three business days after

receipt of the notice to notify the clerk to cancel prior sets of petitions. If the candidate notifies

the clerk, only the last set of petitions filed shall be considered valid by the clerk. If the candidate

fails to notify the clerk, then only the first set of petitions filed shall be considered valid, and all

subsequent petitions are void. Election Code §10-6.2.

To avoid the appearance of impropriety and to assure fair electoral board hearings, municipal

clerks and their employees should strictly refrain from notarizing any nomination papers filed

with the clerk’s office.

E. [2.27] Simultaneous-Filing Lottery

The clerk must consider all petitions filed by persons waiting in line at the opening hour on

the first day of filing as being filed as of the opening hour, no matter what time those papers are

processed (e.g., if a candidate is in line at 8:00 a.m. but her documents are not processed until

8:08 a.m. because of others ahead of her in line). Election Code §10-6.2. The clerk must also

consider petitions that the clerk receives in the first mail delivery of the day as being filed as of

the opening hour of filing. All petitions received thereafter are deemed filed in the order of actual

receipt.

If two or more petitions are filed simultaneously, the clerk shall “break the tie” by conducting

a lottery or by some other fair and impartial method of random selection approved by the State

Board of Elections. The Board’s simultaneous filing lottery procedures may be found at 26

Ill.Admin. Code §§201.40 (for established political parties) and 202.40 (for new political parties),

in the LOCAL ELECTION OFFICIALS HANDBOOK (2005), p. 11, and on the Board’s Web

site at www.elections.state.il.us/ElectionInformation/welcome.aspx.

The clerk must give seven days’ written notice of the time and place of the lottery to the

chairman of each political party and to each organization of citizens in the municipality that was

entitled to have poll watchers present at the next preceding election. Election Code §10-6.2. The

clerk must conduct the lottery within nine days following the last day for petition filing, and the

lottery must be open to the public. Id. The statute does not specify whether the “political party”

chairmen are those of the statewide or locally established parties. The authors recommend that

notices be sent to the county chairmen of the established parties regardless of whether a given

party is running candidates in the election. The county clerk can advise whether there are any

citizens’ organizations entitled to poll-watcher credentials. The statute astonishingly does not

provide that notice be given to the candidates themselves. However, common sense demands that

notice be sent to them as well.

Sometimes candidates of two established political parties simultaneously file competing slate

petitions listing a candidate for every office; for instance, nomination paper A is a Republican

slate petition with Adams for mayor, Taylor for clerk, etc., and nomination paper B is a

Republican slate petition with Carter for mayor, Ford for clerk, etc. The candidates often assume,

incorrectly, that for each office the Adams or Carter slate candidate will be consistently listed

either first or second. However, there is a separate tie for each office, and the clerk must conduct

a unified lottery to break all the ties, following Illinois State Board of Elections regulations.

F. [2.28] Distribution of Form D-5, Notice of Obligation

The clerk must notify all candidates of the obligation to file statements of organization and of

other campaign finance disclosure obligations. Election Code §10-6.1. This is generally

accomplished by having the municipal clerk distribute State Board of Elections Form D-5, Notice

of Obligation, at the time of filing. If the candidate files his or her petitions in person, the clerk

delivers the Form D-5 over the counter and has the candidate sign a receipt. If someone else files

the petitions on the candidate’s behalf, or if the candidate files by mail, the clerk must send the

notice to the candidate by first class mail within two days. 10 ILCS 5/9-16(7).

If the clerk receives petitions for a public question, the State Board of Elections also advises

municipal clerks to provide Form D-5 to the proponent whose name is indicated on the certificate

attached to the petition or to the attorney for the proponent if no name is listed.

G. [2.29] Certification of Ballot and Ballot Order

The clerk must certify the names of all candidates and any public questions that have been

filed to the election authority not less than 61 days before the election. Election Code §§7-13.1,

10-15. The clerk can confirm the precise date with the State Board of Elections. If a municipality

is situated in two or more counties, the clerk must send the certification to the election authority

in each county even if there are no voters in a given county. LOCAL ELECTION OFFICIALS

HANDBOOK (2005), p. 17. See SBE Form G-1. If a city is under the jurisdiction of a city board

of election commissioners, the certification is sent to the board of election commissioners.

LOCAL ELECTION OFFICIALS HANDBOOK (2005), p. 16.

If a candidate’s name has been held invalid by an electoral board, the clerk should not certify

that candidate’s name. Election Code §§7-13.1, 10-15. If an objection is pending at the time the

certification is due, the clerk should include the name on the certification but designate that an

objection is pending to the candidacy by including an asterisk next to the candidate’s name with

an explanation.

If the primary is partisan, the clerk’s certification must indicate the party affiliation of all

candidates or the word “Independent” next to the name. Election Code §§7-13.1, 10-15.

However, if the candidates are nonpartisan, no designation should appear next to their names.

LOCAL ELECTION OFFICIALS HANDBOOK (2005), p. 19. The clerk must also list on the

certification the number of candidates to be nominated or elected (e.g., “For Trustee, three to be

elected”) and the terms of the office to be on the ballot (i.e., full term or shorter term to fill a

vacancy). 10 ILCS 5/7-14, 10-14. The clerk must file an amended certificate if the original

certification is incorrect, a candidate has withdrawn, or an electoral board or judicial review

decision has been rendered. Id.; Election Code §§7-13.1, 10-15.

The clerk must certify the candidates in the order the petitions were filed or as determined by

lottery. Election Code §§7-13.1, 10-15. However, the certification order becomes more confusing

when candidates run in different classifications of parties (i.e., established political parties and

new political parties in the same race) because a prescribed order must be followed within party

classifications that may vary from the order in which the petitions were filed.

1. Partisan Elections

a. [2.30] Established Political Party — Nominated by Primary

When candidates of an established political party are nominated by primary, the following

rules apply:

Candidate names. Candidates for offices for which more than one candidate is to be elected

(e.g., “Village Trustee, vote for three”) appear on the ballot grouped together by party, with the

highest primary vote-getter in each party first. LOCAL ELECTION OFFICIALS HANDBOOK

(2005), p. 17.

Established party names. If political parties are involved, the clerk must conduct a public

lottery to determine party order prior to the canvass and proclamation of the results of the

primary. Id. The clerk must give three days’ written notice of the time and place for the lottery to

the same parties who are entitled to receive notice of a simultaneous-filing lottery. Id. See §2.27

above. The notice must also be posted in a conspicuous, open, and public place. The order of the

ballot party placement is part of the official certification.

b. [2.31] Established Political Party — Nominated by Caucus

When candidates of an established political party are nominated by caucus, the following

rules apply:

Candidate names. The clerk must certify caucus nominees in the order they appear on the

caucus certificate. LOCAL ELECTION OFFICIALS HANDBOOK (2005), p. 18.

Established party names. The clerk must follow the same procedures as when nomination is

by primary. Id. See §2.30 above.

c. [2.32] New Political Parties

The clerk must certify new political parties in the order in which the petitions were received

or as determined by lot. 10 ILCS 5/10-6.2. If a new political party lottery is conducted, only one

lottery need be conducted, instead of one lottery per office, because if the Red Party is drawn

first, all candidates of the Red Party (i.e., mayor, clerk, trustees) are above the members of the

Blue Party. New political parties appear on the ballot after established political parties. Id.

d. [2.33] Independent Candidates

The clerk must certify independent candidates in the order in which their petitions were filed.

Independent candidates will be listed on the ballot after new political parties. LOCAL

ELECTION OFFICIALS HANDBOOK (2005), p. 18.

2. [2.34] Nonpartisan Elections

In nonpartisan elections, the candidates appear on the ballot with no party designation next to

their names. Candidates for nonpartisan offices are certified in the order their petitions were filed

or as determined by lottery. If a municipal primary was conducted, nonpartisan candidates are

listed according to the number of votes they received in the primary. LOCAL ELECTION

OFFICIALS HANDBOOK (2005), p. 18.

H. [2.35] Vacancies in Nomination

A vacancy in nomination occurs when a candidate nominated for municipal office dies,

declines the nomination, or, by reason of disability or legal disqualification, could not serve in the

office if elected. Election Code §§7-61, 10-11; 26 Ill.Admin. Code §207.10. If the vacancy occurs

in an office of an established political party, the municipal central committee for the party fills the

vacancy by resolution. Election Code §7-8. If the vacancy occurs in the nomination of a new

political party, the party officers designated on the certificate of officers attached to the party’s

petition to create a new political party may fill the vacancy by resolution. Whenever the name of

an independent candidate for an office is withdrawn or declared invalid, a vacancy in nomination

does not exist. 10 ILCS 5/10-7. In addition to filing the resolution, the new candidate who is

filling the vacancy should file a statement of candidacy and a receipt for the filing of a statement

of economic interests with the municipal clerk.

Specific filing procedures may also apply, depending on the time at which the vacancy in

office is created. For a summary of these procedures, municipal clerks are encouraged to review

the LOCAL ELECTION OFFICIALS HANDBOOK.

Additionally, those preparing resolutions to fill vacancies in nomination should be aware that

these filings are laden with potentially fatal technicalities. The wise practitioner should review the

procedures and authorities contained in Chapter 14, Vacancies in Office and Vacancies in

Nomination, in IICLE’s ELECTION LAW.

I. [2.36] Canvass and Proclamation

Within days after the election, the various election authorities will transmit the returns to the

election authority of the county in which the municipality’s main office is located. 10 ILCS 5/1-8.

That election authority will canvass the results and proclaim the winners. This simplified

canvassing process, enacted by P.A. 94-647, replaces the cumbersome and anachronistic process

whereby a municipal canvassing board was formally convened.

J. [2.37] Recounts

If the results of an election are close, the losing side usually will want to consider the

possibility of a recount, or election contest. For a fuller explanation of the recount process, the

reader is referred the Chapter 13 of ELECTION LAW.

A candidate who receives 95 percent of the number of votes cast for any successful candidate

for the same office may file a petition for discovery recount with the election authority (i.e., the

county clerk and/or the board of election commissioners) having jurisdiction. Election Code §22-

9.1. The discovery recount may request that up to 25 percent of the precincts in the district in the

jurisdiction be recounted. The fee for a discovery recount is $10 per precinct. Id. If a municipality

encompasses more than one election jurisdiction, separate discovery petitions can be filed with

each.

It was at one time common in Cook County for winners to file for discovery recounts on the

theory that they received 95 percent of their own winning vote totals, with the idea that they

might discover miscounting that would actually increase their margin of victory and discourage

the loser from filing an election contest suit. After litigation stemming from a state Senate race

recount, the Chicago Board of Election Commissioners and the Cook County Clerk no longer

accept “winner’s discovery recounts.” Other election authorities, however, might have a different

view, and it is worth checking to see what local custom prevails.

When a municipality includes parts of different election jurisdictions, such as counties, the

Illinois Attorney General has clarified that a discovery recount may be held only in one fourth of

the precincts in each jurisdiction considered separately. Op. Att’y Gen. (Ill.) No. 96-043. A

candidate may not, for instance, compute the one fourth based on the total number of precincts in

the city and pool his or her chosen precincts all in a particular county. Berquist v. Kusper, 103

Ill.App.3d 815, 431 N.E.2d 1224, 59 Ill.Dec. 467 (1st Dist. 1981).

The results of a discovery recount do not change the proclaimed results of the election or stop

the apparent winner from taking office. Section 23-20 of the Election Code provides that the

results of an election can be contested by the filing of a petition for election contest (recount

lawsuit) in the circuit court. There is one exception: election contests for aldermen in cities other

than Chicago are heard by the city council. Municipal Code §3.1-40-10. However, see Likens v.

Baas, 133 Ill.App.3d 42, 478 N.E.2d 507, 88 Ill.Dec. 192 (1st Dist. 1985) (court asserted

jurisdiction over city alderman election contest).

K. [2.38] Absentee Voting Duties of Clerk

Each full-time municipal clerk who has a regular business office that is not a place of

residence and is open for business during the same hours as the election authority must conduct

in-person absentee voting. Election Code §19-2.1. Each municipal clerk who has a regular

business office but does not have regularly scheduled office hours must conduct in-person

absentee voting during the hours of 8:30 a.m. to 4:30 p.m. or 9:00 a.m. to 5:00 p.m. weekdays and

9:00 a.m. to 12:00 noon on Saturday unless the clerk files a waiver with the election authority not

later than July 1 of each year stating why the clerk is unable to conduct in-person absentee voting.

Id. If a waiver is not filed, the clerk or designated staff must conduct in-person absentee voting

from the 22nd day through the last day before the election. The clerk cannot conduct in-person

absentee voting during any hours that the election authority’s office is closed. However, part-time

clerks may extend their office hours to include any hours that the election authority’s office is

open. Newly appointed clerks may sign a waiver if they were appointed after the July 1 deadline.

Municipal clerks who do not have regular business offices other than a place of residence are not

authorized to conduct in-person absentee voting. Id.

A qualified elector may vote in person at the office of an authorized municipal clerk not more

than 22 days, nor less than 1 day, prior to the election, provided the municipality is not under the

jurisdiction of a municipal board of election commissioners. Municipal clerks may obtain

applications for absentee ballots from the election authority. Duplication of the applications by

anyone other than the election authority is prohibited. Id. For specific information regarding the

conduct of in-person absentee voting, municipal clerks should review the LOCAL ELECTION

OFFICIALS HANDBOOK.

Early voting is permitted under Article 19A of the Election Code. Early voting can best be

explained as voting by absentee without a special reason for doing so. Early voting takes place

not by mail, but only in person at special locations selected by the election authority. Early voting

takes place from the 22nd to the 5th day preceding an election. 10 ILCS 5/19A-15.

L. [2.39] Clerk’s Authority To Refuse To Accept Nomination Papers

It has long been the law in this state that clerks must simply accept all nomination papers

filed and cannot refuse to certify a candidate’s name unless an electoral board found the papers

invalid. The general rule has been that the clerk must certify the candidate when the nomination

papers and petition are in apparent conformity with the provisions of the Election Code. See

People ex rel. Deaton v. Gifford, 353 Ill. 107, 186 N.E. 530 (1933). However, candidates

occasionally file nomination papers that do not possess enough information for the municipal

clerk to perform the certification process or that are obviously and indisputably defective or

insufficient.

One court has ruled that in those limited, extreme cases the municipal clerk has the ability to

determine whether the candidate’s nominating papers are in apparent conformity with the

Election Code. North v. Hinkle, 295 Ill.App.3d 84, 692 N.E.2d 352, 229 Ill.Dec. 579 (2d Dist.

1998). In North, the candidate’s petitions did not identify the office for which the candidate was

running. In addition, the candidate failed to file a statement of candidacy. As a result, the

municipal clerk was unable to determine the office the candidate sought from the documentation

the candidate had filed and therefore could not certify the candidate’s name. The appellate court

agreed that the nomination papers prevented the clerk from certifying the candidate. The court

also suggested that a clerk could also veto a petition that contained fewer than the required

number of signatures on its face. The court did not in any way suggest that a clerk could conduct

any independent investigation or review of individual signatures for defects such as nonregistered

or out-of-village signers. The authors suggest that unless the nomination papers are

significantly deficient and render the clerk unable to certify a candidate’s name, the best practice

is for municipal clerks to accept and certify whatever they receive instead of making judgment

calls on the sufficiency of pagination, binding, notarization, and similar issues regarding which

the law is in a state of flux. It is better for a clerk to accept the papers and to leave them subject to

an attack through the objection process than for the clerk to become the subject of a lawsuit.

Another case on this issue is Jenkins v. McIlvain, 338 Ill.App.3d. 113, 788 N.E.2d 62, 272

Ill.Dec. 758 (1st Dist. 2003). The Jenkins court held that a municipal clerk had the authority to

refuse to certify candidates whose nomination papers were accompanied by a slate (i.e., prior

year’s) statement of economic interests receipt. The Jenkins court took care to point out that the

defect was clear on the face of the documents. Cases such as Jenkins raise the touchy issues of

how far a clerk should go in invalidating nomination papers and — more importantly — whether

the clerk should give notice early enough so that the candidate can file a second, correct set of

nomination papers. Obviously, if the defective filing is at the last minute, there would be no time

to obtain a second set and re-file. Often, though, the petitions are filed on the first day, and it

would seem only fair and just for the local election official to notify a candidate of the fatal

deficiency as soon as possible.

A different result was reached in Welch v. Educational Officers Electoral Board for Proviso

High School District 209, 322 Ill.App.3d 568, 750 N.E.2d 222, 255 Ill.Dec. 641 (1st Dist. 2001),

in which a local election official refused to certify candidates whose nomination papers he

accepted, but supposedly after the 5:00 p.m. deadline. The Welch court held that the timeliness of

filing was not something the local election official could unilaterally determine from the four

corners of the documents, notwithstanding the presence thereon of a time and date stamp.

Accordingly, the court invalidated the clerk’s action and restored the candidates to the ballot.

If the clerk does exercise any powers to void nomination papers under the authority of North,

supra, the municipal attorney should prepare a formal notice to the candidate of that action and

provide an opportunity for a due process hearing for the candidate to refute the clerk’s findings.

VII. [2.40] OBJECTIONS

Any voter in the municipality can object to a candidate’s nomination papers or to referendum

petitions. Election Code §10-8. The filing of such an objection starts a complicated legal process,

and it is vitally important that the municipal clerk, who is at the center of the objection frenzy,

work closely with qualified legal counsel to ensure that the law is followed and everyone’s rights

are protected. For better or worse, Illinois has decided that whether a candidate or referendum

stays on the ballot must be decided by other local officials who breathe the same political air as

those being challenged. In practice, this means that most objection hearings are biased, at least in

appearance if not in practice. In some towns, the hearings can be particularly challengerunfriendly.

Nomination papers or referendum petitions can be objected to because of invalid signatures,

an insufficient number of signatures, or missing or incomplete documents or because of an

external defect in the candidacy such as nonresidency.

Chapter 2 of ELECTION LAW provides an extensive overview of the law regarding electoral

boards and the validity of nomination papers.

A. [2.41] Receipt of Objections

Objections are filed with the municipal clerk as local election official. Election Code §10-8.

As the form of the objection necessarily varies depending on the particular defects in the

nomination papers, there is no “fill in the blank” objection form as there are petition forms. The

objection normally takes the form of a pleading setting forth the general categories of objections

(e.g., “signer not registered”), together with an appendix detailing the particular objection

asserted against each particular sheet and line. The objector’s petition must contain the objector’s

name and residence address and state fully the nature of the objections to the nomination papers,

the interest of the objector, and what relief is requested of the electoral board. Id. It would be wise

for the municipal clerk to provide a time-stamped receipt for the filing, carefully noting the

number of pages presented. The statute requires that the objector file an original and a copy of the

objections. Id. The purpose of this requirement is so that the original can be immediately

transmitted to the electoral board chairman and the copy to the candidate being challenged. If

only an original is filed, the objections are still valid. Wollan v. Jacoby, 274 Ill.App.3d 388, 653

N.E.2d 1303, 210 Ill.Dec. 841 (1st Dist. 1995). For safety’s sake, the clerk should make an extra

photocopy for the permanent files before letting the originals out of his or her hands.

The municipal clerk is not obligated to provide any assistance in preparing the objections, and

in fact should not do so, as the clerk usually sits as a judge of the objections. Just as with

nomination papers, the municipal clerk should accept anything that is tendered purporting to be

an objection as such, even if it is missing some of the statutory elements described above. The

electoral board, not the clerk or the village attorney, should decide whether the objections should

be dismissed if, for instance, the objector forgets to include his or her address or state his or her

interest.

Virtually all objections are brought by an opposing candidate or a citizen fronting for an

opposing candidate. Needless to say, to preserve at least the appearance of fairness, and to protect

themselves from a potentially nasty civil rights lawsuit, the members of the electoral board should

have no role in the preparation, research, or prosecution of the objections. A single objector’s

petition may be filed in the name of more than one objector. In this situation, each objector

should be served with a separate notice of the call.

The objector does not need to personally file the objections with the clerk. They can be filed

by mail or through a messenger. The objector never need appear before the electoral board, as it

is the contents of the nomination papers that are on trial, not what the objector knew and when he

or she knew it. Many candidates, particularly those with faulty nomination papers, try to turn the

tables and transform the electoral board process into a trial of the objector, which should not be

permitted. If the objector does not try his or her own case, an attorney must do so on the

objector’s behalf.

B. [2.42] Membership of Electoral Board

The municipal officers electoral board is normally composed of the mayor or president, the

clerk, and the trustee or alderman who has served the greatest number of years. Election Code

§10-9(3). Note that the years of service need not be consecutive.

1. [2.43] Recusals

The law does not permit electoral board members to shirk their duties because they dislike the

thought of sitting in judgment of their fellow candidates or because they are out of town or

otherwise unavailable. If a board member truly is unavailable, that person is simply absent, and

the board can function as long as it has a quorum of two members.

Court decisions have made it clear that candidates or objectors cannot force the removal of

electoral board members because of their actual or perceived political biases. Ryan v. Landek, 159

Ill.App.3d 10, 512 N.E.2d 1, 111 Ill.Dec. 97 (1st Dist. 1987).

Political bias has become so endemic in some Cook County municipalities that litigants have

obtained court orders to disqualify board members who, for instance, are closely related to

candidates or objectors, even if no statutory disqualification is invoked. Prompt action is

necessary to obtain such an order before the board actually meets. Further support for such

judicial intervention is given by cases such as Kaemmerer v. St. Clair County Officers Electoral

Board, 333 Ill.App.3d 956, 776 N.E.2d 900, 267 Ill.Dec. 528 (5th Dist. 2002), and Anderson v.

McHenry Township, 289 Ill.App.3d 830, 682 N.E.2d 1133, 225 Ill.Dec. 56 (2d Dist. 1997).

Absent such extraordinary action, however, litigants are stuck with the board members the statute

provides. Notwithstanding the fervent pleas of candidates or objectors, the statutorily designated

board members do not have the authority to withdraw or substitute others in their place.

The appellate court in Girot v. Keith, 341 Ill.App.3d 902, 793 N.E.2d 935, 276 Ill.Dec. 176

(3d Dist. 2003), rev’d on other grounds, 212 Ill.2d 372 (2004), dealt with a recurring issue, that

of the clerk who actually received and filed the nomination papers and who testifies regarding his

or her own actions before a board of which the clerk is a member. The appellate court stated that

it “stretches our credulity” to believe that the clerk could be unbiased as to her own testimony.

793 N.E.2d at 937. Judging one’s own testimony raises due process concerns, but the court got

around the point by holding that the other two members of the board voted to remove the

candidate, so the clerk’s vote was superfluous. The court stated that the board “should have

removed” the clerk before the hearing. Id. The court neglected, though, to explain how a board

could do anything before it actually met, since it comes into being only to hold the hearing — or

how it can “impeach” one of its own members. Suffice it to say that a court order must be

obtained to remove an electoral board member for any reason other than the stated statutory

disqualification, i.e., running for the same office for which the nomination papers are challenged.

2. [2.44] Disqualifications

There is only one way an electoral board member can be disqualified from service short of

death or resignation from elected municipal office. If any one of the board members is running

for the office for which the petitions are challenged, he or she is automatically disqualified and

the substitute is the trustee or alderman with the second greatest number of years of service.

Election Code §10-9(6). If two or more members tie for longest service, the one to serve on the

electoral board is determined by lot. It is most efficient for the clerk to conduct this lottery

immediately upon receipt of the objections, as the board membership must be determined for the

call of the electoral board to be sent to the right persons. The disqualification provision is very

narrow, applying only if the candidate objected to is running against an electoral board member

for the same office. All trustee positions for a full term are considered as one single office even if

there are three spots open. However, alderman of Ward 1 is not the same office as alderman of

Ward 3. Also, alderman of Ward 1 for a full term is not the same as alderman of Ward 1 for a

short term. Additionally, if only one candidate is objected to, and that candidate is running as part

of a political party slate petition, his or her running-mates can serve as electoral board members if

they are incumbents in the appropriate offices. Ryan v. Landek, 159 Ill.App.3d 10, 512 N.E.2d 1,

111 Ill.Dec. 97 (1st Dist. 1987).

In most municipalities, all candidates file together to run either in the February consolidated

primary or the April consolidated election. However, some candidates might file for the February

election as candidates of established parties, while others will file later as independent or new

party candidates for the April election only. This creates a problem in determining

disqualifications for objections to candidates running in the February election. At the time those

objections are filed, the April candidates are not yet officially candidates because their filings are

not due yet. It would seem to be the best course to consider the April candidates disqualified for

service if they have publicly announced that they will be running in April and to admonish them

that taking advantage of electoral board service and then turning around and running against the

person whom they judged would certainly create fodder for a lawsuit.

If the mayor or president is disqualified and replaced by the “second senior” alderman or

trustee, that second senior alderman or trustee — not the clerk or most senior alderman —

becomes the board chairman. Election Code §10-9(6).

3. [2.45] Appointed Clerk

Some municipalities have an appointed clerk or no clerk at all because they have merged the

clerk’s duties with those of another officer, such as the manager. In these municipalities, the

clerk’s position on the electoral board should be held by the officer who has absorbed the

statutory duties of the municipal clerk, particularly those relating to election administration.

4. [2.46] Problems in Determining Board Membership

The rules set forth in Election Code §10-9(3) seem simple, but in practice they can be

misinterpreted. Some common issues follow. The clerk, following the statute and acting with the

advice of the municipal attorney, should determine the membership of the electoral board.

a. A single objection challenging several candidates who are running together as a slate or

party on one set of nomination papers should be treated as one group objection. If any member of

the electoral board is running against any of the persons on the slate for any office, that electoral

board member is disqualified from sitting on the case as to all candidates.

b. If two trustees or aldermen are tied by virtue of equal length of service, but one is

disqualified because he or she is running against the challenged candidate, there is no tie. The

remaining trustee or alderman should serve on the electoral board. Under no circumstances do the

third, fourth, fifth, etc., senior trustees or aldermen ever serve on an electoral board unless they

are actually tied for first or second place in seniority. If there are enough disqualifications to

eliminate the first and second senior board members, then the chief judge of the county will

appoint public electoral board members.

c. The electoral board’s membership must be determined based on the lineup of each

objection considered individually. For instance, if there are four objections filed, against a

mayoral candidate, a clerk candidate, a trustee for a full term, and a trustee for a short term, and

the first-round electoral board members are all running for reelection, it is possible that there

would be four different electoral boards, each with a slightly different membership, sitting to

consider each of the four objections.

EXAMPLE 1: In Smallville, the incumbents are Mayor Brown, Clerk Green, and senior Trustee

Blue. The mayor and clerk are running for reelection, and the senior trustee is running for

reelection to a full term. The second senior trustee, Trustee Black, is running for a short term.

Four separate objections are filed to mayoral candidate Orange, clerk candidate Apple, full-term

trustee candidate Pear, and short-term trustee candidate Melon. Four different electoral boards

will sit, as follows:

Objections to Orange — Black (chairman), Green, and Blue

Objections to Apple — Brown (chairman), Blue, and Black

Objections to Pear — Brown (chairman), Green, and Black

Objections to Melon — Brown (chairman), Green, and Blue

EXAMPLE 2: The facts are the same as above, except that only one objection is filed against the

party slate petition including Orange, Apple, Pear, and Melon. The electoral board will consist of

three public members.

EXAMPLE 3: The facts are the same as Example 1, except that Clerk Green is running for mayor

against incumbent Mayor Brown. The electoral boards would be as follows:

Objections to Orange — Black (chairman), Blue, and one public member

Objections to Apple — Brown (chairman), Blue, and Black

Objections to Pear — Brown (chairman), Green, and Black

Objections to Melon — Brown (chairman), Green, and Blue

5. [2.47] Timing of Determination of Board Membership

The municipal clerk, as the recipient of the objections and the party responsible for

transmitting them to the electoral board chairman, should determine who the members of the

electoral board shall be following the statutory principles outlined above. It is possible that the

board chairman will be a public member. If so, the chief judge must be approached to make this

appointment prior to the call being sent. After all, the chairman has the right and duty to set the

time and place for the initial hearing, and it would be awkward to call the meeting for a time at

which the chairman is unavailable.

6. [2.48] Public Members of Electoral Boards

Section 10-9 of the Election Code provides that the chief judge of the county in which the

hearing is held must appoint public members to fill vacancies on electoral boards that are

occasioned by operation of a sufficient number of statutory disqualifications. The law does not

require that the public members live in the municipality, or even the county, involved. The chief

judge may be notified by the municipal clerk or by a member of the electoral board. In practice,

the municipal attorney notifies the chief judge by letter (hand-delivered or faxed, given the time

constraints involved). In Cook County, the chief judge always appoints election attorneys from a

permanent list kept for that purpose. The chief judge, however, requires that the request contain

certain information and be sent in a particular format. See Cook County Circuit Court General

Order No. 21. In DuPage County, there is a standing order naming certain persons as the

designated public members, whom the requesting municipality must contact in turn, taking those

who are first available. Administrative Order 05-7. In some counties, the chief judge may not be

familiar with this process, perhaps never having had the occasion to appoint public members.

Therefore, the municipal attorney preparing the request may wish to include a copy of the

relevant statute and fully explain the time constraints involved and other relevant circumstances.

The statute is silent regarding payment to the public members. In Cook County, General

Order No. 21F provides that the public members are officers of the court and are to be paid $200

per hour for hearing time by the parent governmental body. These payments have been routinely

made and have not been the subject of question. In some instances, the hearings can drag on for

days, and it would seem unlikely that these members would serve merely as volunteers.

Depending on the expected circumstances, the municipal attorney may wish to suggest to the

chief judge that the order include a provision setting the amount and source of pay of any public

members.

When the board consists mostly of public members, the municipal attorney, who sits as the

electoral board’s advisor, may be put in an awkward position if the electoral board, the attorney’s

client, rules against the wishes of the incumbent officials who appointed the municipal attorney.

This becomes particularly problematic if the electoral board, advised by the municipal attorney,

removes candidates from the ballot who subsequently win by virtue of a court appeal or write-in

campaign. Some municipal attorneys avoid this situation by recommending the hiring of an

outside attorney, particularly one with experience in election law, to advise the electoral board.

An electoral board proceeding is a formal, quasi-judicial process in which important rights

are at stake, so it must be run according to recognized legal and judicial principles. Therefore, the

guidance of an attorney is vital. The electoral board must have an attorney if for no other reason

than to have someone ready to prepare and file the administrative record with the circuit court if

the board’s decision is appealed.

7. [2.49] Transmission of Objections to Chairman of Electoral Board

The municipal clerk must transmit the original objections and the original nomination papers

to the chairman of the electoral board no later than 12:00 noon of the second business day

following the filing of the objections by receipted personal delivery or registered (not certified)

mail. Election Code §10-8. Additionally, the clerk must send a copy of the objections to the

candidate in the same manner. Id. Note that the chairman need not actually receive them by that

time — the clerk merely must have them en route to the chairman. As the electoral board hearing

must convene between three and five calendar days from the chairman’s actual receipt of the

documents, the method of transmittal can be changed specifically to ensure an early, or late,

receipt as needed to suit the anticipated hearing schedule. For instance, to move the clock along

and require an early hearing, the clerk could arrange to meet the board chairman and deliver the

documents personally. To help ensure a later hearing schedule, the clerk could send the items by

registered mail and the chairman might simply “arrange” not to pick up the registered mail until a

certain time.

Within 24 hours after receiving the objections and original nomination papers, the chairman

of the electoral board must send a call of the electoral board meeting to the board members, the

objector, and the candidate by sheriff’s service and by certified mail, return receipt requested.

Election Code §10-10. The sheriff may or may not charge a fee for this service. The sheriff must

be informed to serve the papers immediately, and to attempt service at all hours of the day and

night, to ensure that the parties have as much notice as possible of the hearing. It is common

practice to attach a copy of the objections and the proposed electoral board rules to the call. The

municipal attorney must arrange to pick up the returns of service from the sheriff (i.e., the

document showing whom the sheriff served and when) in time for the initial hearing.

In small municipalities, some clerks might ignore these rules and simply notify participants

by telephone or allow them to take their official notices over the counter. While the objections

and petitions are public records open to inspection and copying under the Freedom of Information

Act, there should be no shortcuts in the notice and hearing provisions set by law since such

shortcuts only give a party grounds for an appeal. Normally, the municipal attorney simply takes

over the entire process and handles these tasks on behalf of the respective officials.

There is a common misconception that the electoral board must convene within three to five

days after the filing of the objections. Actually, the board must convene within three to five days

after the receipt of the documents by the chairman — which can be up to a week after the filing of

the objections, depending on delivery schedules. Additionally, if the last day to hold the hearing

falls on a weekend or holiday, the hearing can be held on the next following business day.

Election Code §1-6.

Failure to strictly abide by the deadlines for holding an electoral board hearing does not

divest the board of jurisdiction or prevent it from removing a candidate from the ballot. Maske v.

Kane County Officers Electoral Board, 234 Ill.App.3d 508, 600 N.E.2d 513, 175 Ill.Dec. 582 (2d

Dist. 1992).

8. [2.50] Place of Holding Electoral Board Hearing

While logic and common sense would seem to require that the electoral board meet at the

municipal hall, §10-10 of the Election Code requires that the electoral board convene in the

county courthouse. Also, most electoral boards meet in the evening, when the courthouse is

closed. Some municipal halls are courthouses because they serve as branch courts. If not, the

municipal attorney can approach the chief judge for an order simply declaring the hall a

courthouse for the duration of the electoral board hearings. In Cook County, the chief judge

enters these orders routinely after receiving a request in the form of a letter. See §§2.63 and 2.64

below for sample request letters. In other counties, the chief judge may require the filing of a

formal petition in open court, which necessitates the payment of a filing fee and the expenditure

of attorneys’ fees. However, the cost may be worth saving the board, the witnesses, and the

audience members from having to trek to the county courthouse at night. If all else fails, the

sheriff will simply have to open the courthouse to accommodate the electoral board. The

courthouse requirement applies only to the first hearing; continued hearings may be held

anywhere. Boards sometimes reconvene at the county clerk’s office to review original voter

registration cards, for instance.

9. [2.51] Applicability of Open Meetings Act

Electoral boards are public bodies subject to the Open Meetings Act, 5 ILCS 120/1, et seq.

Therefore, an agenda must be posted 48 hours before the meeting at the municipality’s main

office or at the location of the meeting. 5 ILCS 120/2.02. If the hearing is continued, revised

agendas must be posted from time to time as needed.

Even though electoral boards are quasi-judicial bodies, hearing sworn witnesses, formally

accepting evidence, and rendering a decision based on the law and the facts, they are not allowed

to deliberate in closed session. 5 ILCS 120/2(d) specifically exempts “local electoral boards when

such bodies are considering petition challenges” from the definition of “quasi-adjudicative body.”

The Open Meetings Act does not allow a board to meet in closed session to receive advice from

its attorney. Any advice from the board’s attorney must be provided in open session or in writing.

In particularly complicated cases, it is wise for the board to recess for a few days to allow the

attorney to consult with the board members individually and to draft and circulate a decision that

will receive support from a majority of the board.

Similarly, minutes must be taken of all electoral board meetings even if a transcript is made.

5 ILCS 120/2.06. A transcript does not constitute minutes. The model rules included with this

chapter name the municipal clerk as the board’s ex officio secretary (even if he or she has been

disqualified from the electoral board) and require the clerk to keep the minutes. See §2.67 below.

In light of the fleeting existence of electoral boards, there would seem to be no formal need to

have the electoral board meet later to approve its own minutes. The minutes as taken by the clerk

can simply be deemed accurate and official.

10. [2.52] Conduct of Hearing

Even in the simplest of cases, the municipal attorney should order a court reporter to record

the electoral board proceedings. The court reporter should understand that he or she may have to

prepare a full transcript on short notice if the case is appealed to circuit court. The cost of the

court reporter is paid by the municipality, as are all other costs of the process, including postage,

attorneys’ fees, and the like. If a case is appealed, it is the responsibility of the electoral board,

through its attorney, to file the administrative record of the proceedings, including the original

nomination papers, objections, exhibits, and transcript, with the court at the municipality’s

expense. Russ v. Hoffman, 288 Ill.App.3d 281, 681 N.E.2d 519, 224 Ill.Dec. 204 (1st Dist. 1997)

(Administrative Review Law, 735 ILCS 5/3-101, et seq., applies to review of electoral board

decisions, except that ten-day filing deadline applies).

See §2.67 below for a set of model rules for electoral board hearings. Because many of these

rules deal with proof of issues relating to individual signatures, the rules may be simplified in

some cases, for instance, when only a candidate’s residency is at issue or when the only objection

is that the candidate has forgotten to file a crucial document.

The electoral board can issue subpoenas to require persons to testify before it and/or records

and documents to be produced. Election Code §10-10. Since the electoral board does not exist

until the chairman calls it to order at its first meeting, no subpoenas can be given out until that

first meeting. These subpoenas, would, of course, be returnable on a future continued hearing

date. Parties should be reminded to include the locally required witness fee with any subpoena.

Keep in mind that the electoral board is not an investigative body. It is a judicial body,

hearing the validity of the objections proved before it by the objector. The objector has the burden

of proving the allegations based only on the facts presented before the board and certain limited

matters about which the board can take “judicial notice,” such as the boundaries of the

municipality in question. Election hearings must move at a rapid pace and — at least on the local

level — are generally resolved within a week after the first hearing. It is quite unfair, though, for

an electoral board to insist that litigants try their cases on the first night, especially if evidence

must be subpoenaed in or if a party files a written motion or brief. The opposing party has every

right to have at least a day or two to file a written response or to bring in contradictory evidence.

Except in the simplest of cases, an electoral board that denies at least one continuance for

response purposes runs the risk of reversal on appeal.

In the aftermath of Bush v. Gore, 531 U.S. 98, 148 L.Ed.2d 388, 121 S.Ct. 525 (2000), many

Illinois election authorities are converting from punch card ballots to “marksense” or “optical

scan” ballots. While these ballots have many advantages over punch cards, they are extremely

difficult, if not impossible, to reprint to reflect last-minute changes resulting from an electoral

board decision or court order. It is, therefore, worthwhile to keep the election authority “in the

loop” with respect to the status of pending electoral board cases.

Sometimes both the candidate and the objector are ready to proceed with their cases on the

day set for the initial hearing. While the candidate is expected to be prepared to proceed

immediately, that may be impossible if the candidate is surprised by evidence presented by the

objector. The candidate has the absolute right to request subpoenas for the production of

witnesses or documents, and who those witnesses will be may depend on what evidence the

objector relies on.

The electoral board should grant reasonable requests for short continuances, but the parties

must also be ready to proceed on short notice once the board has convened.

The candidate may also file a motion to dismiss. Understanding what is and is not a good

motion to dismiss is something in which attorneys are trained, but non-attorneys who run for

office or sit on electoral boards probably are not. A motion to dismiss does not argue the facts; it

argues the law. For instance, if an objection alleges that a particular signer is not a registered

voter, that is an issue of fact to be determined by examination of the registration records. It cannot

be resolved merely by reading arguments by the objector and the candidate. If, however, the

objection is that the candidate should be removed from the ballot because he or she has green

eyes, that objection could be resolved on a motion to dismiss because Illinois law does not

prohibit green-eyed candidates. Similarly, if an objection states simply that the petitions

contained signatures of voters who are registered outside the municipality without specifying

which particular signatures are in question, that objection could also be dismissed because the law

requires more specificity. Objections, once filed, cannot be amended. Reyes v. Bloomingdale

Township Electoral Board, 265 Ill.App.3d 69, 638 N.E.2d 782, 202 Ill.Dec. 914, vacated in part

on other grounds, 265 Ill.App.3d 69 (2d Dist. 1994).

For further detail on motion practice before electoral boards, see Chapter 2 of ELECTION

LAW.

Proof of whether a petition signer is registered in the district, etc., should be established by

reference to the official records of the county clerk or board of election commissioners. This will

require testimony by a representative of the county clerk’s office or production of certified copies

of the relevant records. Voter registration records kept by the municipal clerk, such as the

absentee ballot eligibility printout, are not proper evidence of the county’s registration records.

Objectors will often challenge signatures on the basis that they are not signed in the voters’ “own

proper persons,” which essentially means they are forged. The customary way of proving the

validity of such an objection is to ask the electoral board to compare the signature on the petition

with a specimen of the voter’s signature that is known to be genuine, such as that on the voter’s

registration card. As Illinois statutes and case law clearly allow non-handwriting experts, such as

jurors, to competently judge whether a signature is genuine by making such a comparison, no

expert testimony is required. 735 ILCS 5/8-1501. However, the electoral board, after making such

a comparison, might simply find the comparison unconvincing and uphold the signature’s

validity. The electoral board, though, cannot simply refuse to allow the objector to prove up the

case by presenting such comparisons on the basis that expert testimony, or occurrence testimony,

is needed.

When a particularly complex objection is filed and the electoral board members are

uncomfortable with their ability to manage the hearing even with the municipal attorney at their

side, the board may wish to appoint a hearing officer to take evidence and issue a recommended

decision. In this case, the hearing officer alone should conduct the hearing, not the hearing officer

jointly with the board, as the authors have unfortunately seen done.

11. [2.53] Electoral Board Decisions

The electoral board’s decision must be in writing and must specify which objections, if any, it

has sustained. Election Code §10-10. Also, the decision must be made and voted on in open

session. Therefore, unless the board’s attorney has brought a draft decision on disk that can be

finalized and printed during a brief recess, it will be necessary to reconvene the electoral board on

a subsequent day only to vote on the decision. Until the decision is in writing, it is not final and

cannot be appealed. Forcade-Osborn v. Madison County Electoral Board, 334 Ill.App.3d 756,

778 N.E.2d 768, 268 Ill.Dec. 502 (5th Dist. 2002). Ideally, the parties will be present at the

session at which the board issues its written decision. Certainly, the parties should be notified of

when the board will meet to vote on its final, written decision. The board should give the parties a

copy of the decision and note their receipt of it in the record. If a party is not present, the copy of

the decision should be promptly sent by certified mail, return receipt requested. The decision

should be dated on the day the board actually votes on the written decision, not some earlier day

on which the board voted on the objection but did not yet have a written decision available.

The preferred practice is for the electoral board to transmit a certified copy of its decision

immediately to all election authorities that print ballots for the subject elections. If the board

removes a candidate, the municipal clerk also sends an amended certification to those agencies. If

further changes are necessitated by court appeals, the municipal clerk will work closely with the

election authorities to ensure that the ballots are printed properly following the latest valid

judicial decision.

In the Chicago metropolitan area, the election authorities routinely reprint ballots and

reprogram their computers on a moment’s notice to accommodate last-minute judicial decisions

involving candidates, and do so at their own expense. In other areas of the state, some election

authorities are less accommodating and may need to be prodded with a court order to do so.

12. [2.54] Judicial Review of Electoral Board Decisions

Within ten days after the date of the electoral board’s decision — not ten days after receipt of

it — a party may file an appeal with the circuit court. This appeal is called a “petition for judicial

review” and is filed in much the same manner as an administrative review lawsuit. There will be a

filing fee for the suit. However, service of process is not, as in other civil cases, accomplished by

a summons served by a sheriff. The losing party must serve each of the electoral board members

and the winning party by registered or certified mail. Election Code §10-10.1. Failure to promptly

serve the parties, or failure to name all the required parties, will result in dismissal of the appeal.

Russ v. Hoffman, 288 Ill.App.3d 281, 681 N.E.2d 519, 224 Ill.Dec. 204 (1st Dist. 1997).

The normal practice is for the losing party to “notice up” the case before the assigned judge,

for the judge to set a schedule for the filing of briefs by each side, and for the electoral board’s

attorney to file the administrative record. The judge may then hear oral arguments and must set

the matter for hearing within 30 days of the filing of the petition and render a decision promptly

thereafter. Election Code §10-10.1. In practice, however, most judicial review cases are briefed,

argued, and decided within ten days of the filing of the petition.

The circuit court’s decision may be appealed upward through the judicial system. The Illinois

Supreme and appellate courts have routinely, but not uniformly, expedited these appeals so that

they are resolved before the subject election. If the circuit court reverses the electoral board’s

decision, the electoral board cannot appeal that reversal. Kozenczak v. DuPage County Officers

Electoral Board, 299 Ill.App.3d 205, 700 N.E.2d 1073, 233 Ill.Dec. 365 (2d Dist. 1998).

However, the objector or candidate may.

VIII. MISCELLANEOUS ISSUES

A. [2.55] Incompatibility of Offices

Questions often arise as to whether a municipal official can simultaneously hold another

elected or appointed governmental position. Illinois law provides that offices are incompatible if

there is a statute specifically prohibiting the holding of the two positions or if the duties of the

two offices conflict so that the holder of one cannot in every instance properly and faithfully

perform all of the duties of the other. Elected municipal officials cannot hold another position

with the municipality during their term of office unless they are granted a leave of absence.

Municipal Code §3.1-15-15. There is little case law dealing with compatibility of offices. See,

e.g., Rogers v. Village of Tinley Park, 116 Ill.App.3d 437, 451 N.E.2d 1324, 72 Ill.Dec. 1 (1st

Dist. 1983) (police officer cannot serve as village trustee); People ex rel. Smith v. Brown, 356

Ill.App.3d 1096, 828 N.E.2d 306, 293 Ill.Dec. 336 (3d Dist. 2005) (city alderman cannot be park

board member); People ex rel. Smith v. Wilson, 357 Ill.App.3d 204, 828 N.E.2d 1214, 293

Ill.Dec. 716 (3d Dist. 2005) (county board member cannot serve on school board). But see People

v. Claar, 293 Ill.App.3d 211, 687 N.E.2d 557, 227 Ill.Dec. 307 (3d Dist. 1997) (holding mayor

could serve on Toll Highway Board).

There is, however, a wealth of Illinois Attorney General’s opinions considering whether

various municipal offices are compatible with other particular governmental positions. If a person

is disqualified from holding two offices simultaneously, the disqualification occurs at the time he

or she takes the oath for the second office. There is never a disqualification from simply running

for an office that might be incompatible with an office the person currently holds.

B. [2.56] Commencement of Terms

In general, the terms of municipal officers begin at the first regular or special meeting of the

corporate authorities following the canvass, except as provided by ordinance. No ordinance can

set the time for commencement of the terms later than the first regular meeting in June. Municipal

Code §3.1-10-15. In municipalities that have no ordinance setting the commencement of the

terms, the new officials could take office at a regular board meeting immediately following the

canvass and after they have posted any required oaths and bonds, which means that the balance of

power can literally shift a few weeks after the polls have closed. Recent changes to election laws,

such as those providing a 21-day period to count provisional ballots, have considerably delayed

the canvassing process. Even if a result is certain based on election night returns, the status quo

should remain until the official canvass of all votes is done by the election authority and duly

proclaimed by that office.

C. [2.57] Eligibility of Debtors to Municipality To Hold Municipal Office

Section 3.1-10-5 of the Illinois Municipal Code provides that persons who owe debts to the

municipality cannot hold municipal office. This statute is often believed to prohibit persons who

owe parking tickets or water bills from running for municipal office. The weight of authority,

however, is that disqualification kicks in only if the person actually holds, or attempts to hold, the

office following being elected to it. Therefore, a parking scofflaw can be elected and cure the

problem simply by paying the debt before taking the oath of office. See People v. Hamilton, 24

Ill.App. 609, 612 – 613 (3d Dist. 1886). Additionally, the disqualification is not automatic. The

winning candidate would be seated and remain in office until ousted by a court in a quo warranto

lawsuit. Pappas v. Calumet City Municipal Officers’ Electoral Board, 288 Ill.App.3d 787, 681

N.E.2d 589, 224 Ill.Dec. 274 (1st Dist. 1997), holds differently as regards the parallel felony

disqualification, but there has yet to be a definitive resolution on the issue as to debtors.

D. [2.58] Eligibility of Felons To Hold Municipal Office

Section 3.1-10-5 of the Municipal Code was amended in the early 1990s to prohibit convicted

felons from holding municipal office. This statute has been the subject of considerable litigation.

The Appellate Court for the First District upheld the statute in Pappas v. Calumet City Municipal

Officers’ Electoral Board, 288 Ill.App.3d 787, 681 N.E.2d 589, 224 Ill.Dec. 274 (1st Dist. 1997),

although the court hinted that a different constitutional challenge might eventually succeed. An

earlier appellate court decision struck down a virtually identical statute relating to township

officials. Coles v. Ryan, 91 Ill.App.3d 382, 414 N.E.2d 932, 46 Ill.Dec. 879 (2d Dist. 1980). At

least three circuit court judges have struck down the Municipal Code’s parallel ban on felons,

largely on the authority of Coles. People ex rel. Cory v. Watts, No. 99 CH 10306 (Cook Cty.Cir.

Dec. 1, 1999) (Judge Aaron Jaffe); People ex rel. Devine v. Luster, No. 01 CE 44 (Cook Cty.Cir.

May 9, 2001) (Judge Jagielski); Medrano v. Chicago Board of Election Commissioners, No. 02

CH 19784 (Cook Cty.Cir. Nov. 27, 2002) (Judge Bertucci). However, one circuit court judge has

held that §3.1-10-15 is constitutional on its face. Evans v. Thompson, No. 03 COEL 20 (Cook

Cty.Cir. Feb. 14, 2003) (Judge Michael Murphy). This case is on appeal (No. 01-03-376). The

appellate court denied the candidate’s motion to set aside the circuit court’s ruling and motion to

expedite the appeal, stating that an expanded Rule 23 order or opinion would follow at a later

date. However, the Appellate Court for the Fifth District determined that the Municipal Code’s

prohibition against convicted felons holding elective municipal office under §3.1-10-5(b) does

not violate the equal protection clause of the 14th Amendment to the United States Constitution.

People v. Hofer, ___ Ill.App.3d ___, 843 N.E.2d 460, 300 Ill.Dec. 202 (5th Dist. 2006). In

finding the prohibition to be constitutional, the Hofer court determined that there was a rational

basis for a statutory scheme that allows a convicted felon to run for a constitutional office upon

the completion of his sentence but does not afford the same restoration of the right to a felon

seeking a nonconstitutional elective office.

E. [2.59] Voting Rights Act of 1965

The federal Voting Rights Act of 1965, 42 U.S.C. §§1971, 1973, et seq., is intended to

guarantee racial minorities an equal voice in the political process. It has been used to require

Illinois municipalities to abandon at-large elections that “drown out” the voting strength of

minority voters in favor of elections by wards or districts. See, e.g., Harper v. City of Chicago

Heights, 223 F.3d 593 (7th Cir. 2000). Officials of municipalities that elect officials from wards

or districts should pay heed to the issues this law imposes on the redistricting process. A fuller

explication of this important federal statute is set forth in Chapter 16 of ELECTION LAW.

F. [2.60] Redistricting

Municipalities that elect aldermen or trustees by wards or districts should review the

populations of those districts every ten years following the decennial census. The districts must

then be redrawn to ensure that the population of the districts is substantially equal as required by

the federal Constitution. Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 , 82 S.Ct. 691 (1962). It is

impossible to give an exact percentage of population deviation that a court will find acceptable. It

all depends on the local geography, the ease with which modifications could be made to reduce

the deviations, and other factors. However, any deviation of over five percent might be

considered suspect.

In designing ward or district boundaries, it is nice to maintain unity with the existing precinct

boundaries. However, such unity is not required and may, in fact, be impossible given the need to

even out the populations. Only the population figures in the United States census should be used.

A municipality faced with a redistricting later in the decennial cycle should not guess as to

population growth or loss patterns.

Good practice also dictates that municipal clerks verify how election authorities have

implemented the ward or district boundaries, so that voters receive only the ballots to which they

are entitled. The authors are familiar with several close elections in which the margin of victory

hinged on questionable ballots cast by out-of-district or out-of-municipality voters who were

given ballots by careless election judges, or because the map provided to the election authority

was incorrect.

For a fuller explanation of redistricting and the affect of the Voting Rights Act of 1965 on it,

see Chapter 16 of ELECTION LAW.

G. [2.61] Prohibitions on Use of Public Funds

Section 9-25.1 of the Election Code prohibits the expenditure of public funds to urge any

elector to vote for or against any candidate or proposition and the appropriation of public funds

for political or campaign purposes to any candidate or political organization. However, the law

allows the use of public funds for dissemination of factual information relative to any

referendum.

This law has two significant practical applications. First, municipal funds cannot be donated

to a political party or organization, no matter how worthy or nonpolitical the purpose. In other

words, the mayor cannot use village funds to attend a state senator’s political fundraiser even

under the excuse that one of his or her important duties is to attend local community events on

behalf of the municipality. (This is distinguishable from, for instance, a chamber of commerce

fundraiser at which the senator might be honored as long as the proceeds inure to the benefit of

the chamber and not the politician’s campaign fund.) Second, a municipality cannot use its own

resources to promote or oppose a municipal referendum with so-called “advocacy” literature

urging a particular vote. The municipality can, however, issue “neutral fact” literature explaining

how much money the referendum will cost, what the municipality will or will not do if it loses,

how the money will be spent, etc.

The lines that separate legal from illegal campaign literature are fine indeed, and officials

should have qualified legal counsel vet any referendum literature that might possibly be construed

as “advocacy” literature.

The State Officials and Employees Ethics Act, 5 ILCS 430/1-1, et seq., is a comprehensive

ethics reform package that considerably expands existing law regarding use of governmental

funds, resources, and facilities for political purposes. The Act contains a host of requirements

restricting use of governmental funds and facilities for political purposes and requires that units of

local government and school districts enact equivalent restrictions. The Attorney General has

issued a model ordinance and policy that municipalities should have enacted. The local

ordinances prohibit use of public funds, resources, or facilities for such things as checking

petition signatures on opponents’ petitions. Municipal attorneys should be vigilant to ensure that

their clients understand that there must be a strict wall of separation between political and

governmental activities.

H. [2.62] Help America Vote Act of 2002

In 2002, Congress passed the Help America Vote Act of 2002 (HAVA), Pub.L. No. 107-252,

116 Stat. 1665, codified at 42 U.S.C. §15301, et seq. HAVA was Congress’ response to the

glitches that infected the 2000 Florida Presidential race. One aspect of HAVA is of particular

interest to municipal officials. Under HAVA, voters who insist that they are validly registered

voters but do not appear on the rolls at the polling place must be provided the opportunity to cast

a “provisional ballot” that is not counted on election night but is instead escrowed and counted

only if the election authority can verify the registration at a later date. Practically speaking, this

means that Illinois will no longer have final totals on election night, or perhaps even for some

time after election night.

Public Act 93-574, effective August 21, 2003, was intended to implement HAVA in Illinois.

It was supplemented by P.A. 94-645. For more information on HAVA, see

www.fec.gov/hava/hava.htm.

IX. APPENDIX

A. [2.63] Sample Letter to Chief Judge Requesting Place of Holding Court Order

January 21, 20__

The Honorable Timothy C. Evans

Chief Judge, Circuit Court of Cook County

2600 Daley Center

Chicago, IL 60602

BY HAND DELIVERY

Re: Village of Smallville Municipal Officers Electoral Board/Place of Holding Court Order

Your Honor:

We represent the Village of Smallville. Objections have been filed to a candidate

running in the April 3, 20__, Consolidated Election that necessitate the convening of the

electoral board. No public members are needed for this board. We respectfully request that

you enter an administrative order establishing the Village Board Room, Village Hall, 350

Victory Drive, Smallville, Illinois 60466, as a place of holding court for the purpose of

electoral board hearings from January 25, 20__, until the hearings are concluded.

Kindly fax a copy of the order to my attention when it has been prepared. On behalf of

the administration of the village, we appreciate your kind cooperation in this matter.

Very respectfully,

[name of village attorney’s law firm]

By: [village attorney]

cc by hand delivery: Honorable Patrick McGann, Presiding Judge, County Division, 1701

Daley Center

B. [2.64] Sample Letter to Chief Judge Requesting Appointment of Public Members to

Electoral Board and Requesting Place of Holding Court Order

January 21, 20__

The Honorable Timothy C. Evans

Chief Judge, Circuit Court of Cook County

2600 Daley Center

Chicago, IL 60602

BY HAND DELIVERY

Re: Village of Smallville Municipal Officers Electoral Board/Place of Holding Court

Order/Appointment of Public Members

Your Honor:

We represent the Village of Smallville. Objections have been filed to a slate of

candidates running for the offices of village president, village clerk, and village trustee in

the April 3, 20__, Consolidated Election that necessitate the convening of the electoral

board. The incumbent village president, clerk, and two senior trustees are all running for

reelection and are disqualified from serving by 10 ILCS 5/10-9. We request that you

appoint three public members to this board, designating one as the chairman. As required

by Circuit Court of Cook County General Order 21, we are providing the following

additional information:

1. The objector is John J. Doe, 414 Elm Street, Smallville, IL 60466. The objector’s

attorney is Jane Jones, 134 North LaSalle, Suite 6700, Chicago, IL 60602.

2. The candidates being objected to are Mary Smith (village president), 555 Pine

Street; Tammy Brown (clerk), 333 Maple Lane; Eunice Green (trustee), 919 Sycamore

Avenue; Thomas Calvin (trustee), 1212 Wood Street; and Paul Peters (trustee), 344 Apple

Street, all Smallville, IL 60466. The names of their attorneys are not known.

3. The candidates seek election to their various offices in the Village of Smallville,

Cook County, Illinois, at the April 3, 20__ Consolidated Election.

4. A copy of the ballot certification is enclosed.

5. The three persons who would normally constitute the electoral board are Michael

Albany, village president; Michelle Welby, clerk; and Walter Barrett and Martin Edwards,

senior and second-senior trustees.

6. There are no other objections filed at this time for the upcoming municipal election.

7. There has been no date or time set in a Call for the electoral board meeting, pending

consultation with the chairman whom you will name.

8. I am the village’s contact person and can be reached at the address and phone

numbers on this letterhead.

We also respectfully request that you enter an administrative order establishing the

Village Board Room, Village Hall, 350 Victory Drive, Smallville, Illinois 60466, as a place of

holding court for the purpose of electoral board hearings from January 25, 20__, until the

hearings are concluded.

Kindly fax a copy of the order to my attention when it has been prepared. On behalf of

the administration of the village, we appreciate your kind cooperation in this matter.

Very respectfully,

[name of village attorney’s law firm]

By: [village attorney]

cc by hand delivery: Honorable Patrick McGann, Presiding Judge, County Division, 1701

Daley Center

C. Sample Call, Agenda, and Rules for a Municipal Officers Electoral Board

1. [2.65] Call

BEFORE THE MUNICIPAL OFFICERS ELECTORAL BOARD

OF THE VILLAGE OF SMALLVILLE

Josephine Dowd, )

Petitioner-Objector, )

)

vs. ) No. 00-1

)

Samuel Charleston, )

Respondent-Candidate. )

CALL

SHERIFF OF COOK COUNTY, Please serve:

1. Keith Olson

Village President

541 Birchwood

Smallville, IL 60466

2. Sarah Brighton

Village Clerk

350 Smally Lane

Smallville, IL 60466

3. Carolyn Adams

Village Trustee

216 Rich Road

Smallville, IL 60466

4. Stephen Charleston

Candidate

334 Minnehaha Street

Smallville, IL 60466

SHERIFF OF WILL COUNTY, Please serve:

1. Josephine Dowd

Objector

1542 Malibu Way

Smallville, IL 60466

BEFORE THE MUNICIPAL OFFICERS ELECTORAL BOARD

OF THE VILLAGE OF SMALLVILLE

Josephine Dowd, )

Petitioner-Objector, )

)

vs. ) No. 00-1

)

Samuel Charleston, )

Respondent-Candidate. )

CALL

TO:

Keith Olson, Village President

Sarah Brighton, Village Clerk

Carolyn Adams, Village Trustee

constituting the Municipal Officers Electoral Board for the hearing and passing on of

objections to nomination papers for candidates for Village Trustee in the Village of

Smallville, to be voted on by the electors of the Village.

You are hereby notified that the above-designated Municipal Officers Electoral Board is

required by law to meet and pass on objections to nomination papers of candidates in the

Village of Smallville, to be voted on at the Consolidated Election to be held on April 3, 20__.

You are further notified that the above-designated Municipal Officers Electoral Board

shall meet on January 25, 20__, at 6:00 p.m., at the Village Board Room, Village Hall, 350

Victory Drive, Smallville, IL 60466, for the purpose of hearing and passing on said

objections to the nomination papers, and that a Call has been and is hereby made by the

Municipal Officers Electoral Board for said meeting to be held at the time and place and for

the purpose as aforesaid. If you are the objector and you do not appear for the hearing at

the above time and place, a default judgment may be entered against you resulting in a

finding that the nomination papers are valid. If you are the candidate and you do not

appear for the hearing at the above time and place, a default judgment may be entered

against you resulting in a finding that the nomination papers are invalid.

Dated: January 21, 20__.

_____________________________________

Chairman

Municipal Officers Electoral Board

2. [2.66] Agenda

THE MUNICIPAL OFFICERS ELECTORAL BOARD

OF THE VILLAGE OF SMALLVILLE

AGENDA

PLEASE TAKE NOTICE that Keith Olson, Village President; Sarah Brighton, Village

Clerk; and Carolyn Adams, Village Trustee, constituting the Municipal Officers Electoral

Board for the hearing and passing on of objections to nomination papers for candidates in

the Village of Smallville, to be voted on by the electors of the Village, will hold a meeting of

the Municipal Officers Electoral Board, which is required by law to meet and pass on

objections to nomination papers in the Village of Smallville, to be voted on at the

Consolidated Election to be held on April 3, 20__.

The Municipal Officers Electoral Board shall meet on Tuesday, January 25, 20__, at

6:00 p.m., at the Village Board Room, Village Hall, 350 Victory Drive, Smallville, IL 60466.

The meeting will follow this agenda:

1. Call to Order

2. Roll Call

3. Introductory Remarks by Board Chairman

4. Adoption of Rules

5. Case No. 00-1, Dowd v. Charleston

6. Adjournment or Recess

Posted: January 21, 20__

____________________________________

Chairman

Municipal Officers Electoral Board

3. [2.67] Rules

(PROPOSED)

MUNICIPAL OFFICERS ELECTORAL BOARD RULES

FOR THE VILLAGE OF SMALLVILLE

1. APPEARANCE. A candidate or objector may appear before the Board in person or

by an attorney-at-law admitted to the bar of the Supreme Court of Illinois. The party must

file a written appearance listing his or her name, address, and telephone number. The

Board highly recommends that parties provide a pager and/or fax number, if possible. The

parties shall be reasonably available by telephone during the day and night to receive Board

communications during the course of the proceedings. Because of the expedited nature of

the hearings, failure to monitor or be available at the numbers provided may result in

waiver of rights.

2. HEARING DATE. On the date set in the Call, both the objector and the candidate

may be required to proceed to present their cases. The Board will not grant any

continuance, except for good cause shown, or except on the Board’s own direction.

3. ELECTORAL BOARD POWERS. The Electoral Board shall conduct and preside

over all hearings and take necessary action to avoid delay, maintain order, ensure

compliance with all notice requirements, and ensure the development of a clear and

complete record. The Board shall have all the powers necessary to conduct a fair and

impartial hearing including, but not limited to, the powers to

(a) administer oaths and affirmations;

(b) regulate the course of hearings, set the time and place for continued hearings, set

times for filing of documents, provide for the taking of testimony by evidence

deposition if necessary, and in general conduct proceedings according to the

recognized principles of administrative law and these rules;

Board’s attorney) and direct the witnesses to testify, limit the number of times any

witness may testify, limit repetitive testimony, and set reasonable limits to the

amount of time that each witness may testify;

(d) rule on offers of proof and receive relevant evidence;

(e) direct parties to appear and confer for the settlement or simplification of issues and

otherwise conduct prehearing conferences;

(f) dispose of procedural requests or similar matters;

(g) require the parties to prepare written briefs and proposed findings of fact and

conclusions of law;

(h) consider and rule on all motions presented in the course of the proceedings;

(i) consider such evidence as may be submitted, including but not limited to,

documentary evidence, affidavits, and oral testimony;

(j) prepare a record of its proceedings, with the clerk and/or secretary of the Board’s

parent governmental body, or his or her designee, serving as ex officio clerk of the

Board and keeping minutes of the Board’s proceedings; and

(k) enter any order that further carries out the purpose of these rules.

4. CASE MANAGEMENT CONFERENCE. The Board may direct the parties or their

attorneys to appear at a conference with the Board or its attorney at any time, for the

purpose of considering

(a) the formation and simplification of the issues;

(b) the possibility of obtaining admissions of facts and of documents to avoid

unnecessary proof;

(d) the preparation and submission of written briefs and proposed findings of fact and

conclusion of law;

(e) scheduling of hearings on motions;

(f) a proposed plan and schedule of discovery; and

(g) any other matters that may aid in the disposition of the objections.

5. ORDER OF PRESENTATION. The Board will first hear preliminary motions in

the nature of a motion to dismiss under §2-615 of the Illinois Code of Civil Procedure. The

Board may, in its discretion, reserve rulings on such motions pending further hearings.

The objector shall present his or her case-in-chief after the consideration of such

preliminary motions. The objector shall bear the burden of presenting evidence sufficient to

support a decision sustaining the objection. The applicable evidentiary threshold on issues

of fact shall be a “preponderance of the evidence.” The Board, in its discretion, may

entertain a motion for a directed finding at the close of the objector’s case-in-chief. After

the conclusion of the objector’s case-in-chief, the candidate may present his or her case-inchief.

At the close of candidate’s case-in-chief, the objector may offer a case in rebuttal.

Matters in rebuttal will be strictly limited to matters raised by the issues then before the

Board. Surrebuttal is disfavored and may be allowed by the Board only upon showing of

compelling grounds.

In the interest of brevity, the Board may terminate evidence or argument on repetitive

matters or matters plainly beyond the scope of the case. The Board may refuse to hear, with

or without an objection of a party, evidence or argument it determines not germane to the

Electoral Board hearing.

The objector need not adduce proof that the objector is a registered voter within the

political subdivision at issue. The candidate may raise the lack of the objector’s standing or

eligibility as an affirmative defense in his or her own case-in-chief. The objector’s

motivation or personal knowledge of the factual basis for the objections is not relevant to

the Board and shall not be considered.

The Board may alter the order of proof in order to expedite the hearing.

6. RECORD CHECKS. The Board, in its discretion and when applicable, may order a

record check to be conducted. The record check shall be used to initially determine the

validity of most standard objections to individual signatures and circulators. At the record

check, election documents and objections shall be compared with the permanent voter

registration records of the local election authority by employees of the election authority

acting under the direction and supervision of this Board, if possible, and if not, then by the

Board or its agent(s) or designee(s). If the records of the election authority are stored on a

computer database, the records check may utilize the computerized records in lieu of or in

addition to the originals. The record check shall determine the validity of the following

general types of objections:

(a) whether the signer of an election document is a registered voter at the address

shown beside his or her signature;

(b) whether the signature on an election document is genuine;

relevant political subdivision or district involved; and

(d) whether a petition signer signed the document more than once.

The objector and candidate shall have the right to have an attorney and one designated

representative (watchers) present at the record check. If the designated representative is the

objector or candidate, that party shall not be entitled to any additional watchers other than

the attorney. The record check will proceed at the scheduled time. The failure of any party

to appear at the comparison shall not delay nor affect the validity of the record check. The

results of the record check shall be noted by the election authority’s clerk on a form

provided by the Board. Failure or refusal of the watcher to sign the form does not affect the

accuracy of the form. Blank copies of the form used shall be furnished to each watcher on

request so that the watcher may note the results of the comparison. The election authority

or the Board’s representative(s) may order a watcher removed for misconduct that

materially hampers the businesslike proceedings of the record check. If a watcher is

removed, the record check will proceed immediately without that watcher.

A watcher may orally object to the findings of the clerk at the time the clerk enters his

or her ruling on the form. This objection shall also be noted by the clerk. FAILURE TO

OBJECT TO A FINDING OF THE CLERK AT THE RECORD CHECK SHALL BAR

THE PARTY FROM OBTAINING A CHECK OF ANY OTHER ELECTION

AUTHORITY RECORDS RELATING TO THAT SIGNATURE AND ALSO FROM

PRESENTATION OF ANY FURTHER EVIDENCE OR ARGUMENT BEFORE THE

BOARD WITH RESPECT TO THE ISSUE CONSIDERED AT THE RECORD CHECK.

7. (Reserved).

8. TIMING OF OBJECTIONS TO RECORD CHECKS. Any party may object to the

results of the record check by filing a written request for further hearing before the Board.

This request shall indicate the specific name(s) objected to by sheet and line of the election

documents and the ground(s) for the request. This request shall be filed no later than 48

clock hours following the clerk’s ruling on the last signature examined at the record check.

The request shall be filed with the Board and served on the other parties to the case. No

request will be considered if the party did not make an objection to the election authority’s

finding at the time that the election authority’s clerk entered his or her finding on the form.

At a hearing before the Board, the ruling made by the clerk shall be deemed valid, and

the moving party shall have the burden of demonstrating that the ruling was incorrect by a

preponderance of the evidence.

9. SUBPOENAS. At the request of any party, the Chairman may issue subpoenas

requesting the attendance of witnesses and subpoenas duces tecum requiring the production

of such books, papers, records, and documents as may be evidence of any matter before the

Board. The party shall serve the subpoena, with the appropriate fee, in the same manner as

for subpoenas used in the circuit court of the county in which the Board sits.

If any person served with a Board subpoena fails to honor it, the Board may seek

judicial enforcement of the subpoena as provided by law.

10. GENERAL CONSIDERATIONS. The Board will consider objections only to the

objector’s petition and to the nomination papers. All arguments and evidence must be

confined to those matters. Any party may submit arguments in writing. The objector’s

petition may not be amended. The Board will be governed by applicable Illinois statutory

and case law.

11. EVIDENCE. The Board will consider such other evidence as may be submitted,

including, but not limited to, other documentary evidence, affidavits, and oral testimony.

Because the Board must consider objections within a limited time, extended examination

and cross-examination of witnesses will be subject to the discretion of the Board. The Board

will, when practicable and appropriate, follow (but will not be bound by) rules of evidence

that prevail in Illinois courts of law. The Chairman, with the assistance of the Board’s

attorney, shall make all necessary evidentiary rulings, subject to appeal to the entire Board.

The Board may overrule the Chairman’s rulings on such evidentiary matters by a majority

vote of the Board.

12. FAILURE TO FOLLOW DIRECTIVES. Failure to adhere to these rules shall be

grounds for dismissal of the objector’s petition or default of the candidate.

13. FINDINGS. The Board shall state its findings in writing, noting the objections that

have been sustained. The Board shall not default a candidate until after a finding that the

objections constitute sufficient grounds for removal from the ballot.

14. GENERAL PROCEDURES. For matters not covered herein, the Board will

generally follow rules of practice that prevail in the circuit court of the county in which the

Board sits and the Illinois Code of Civil Procedure. Because of the nature of these

proceedings, the Board shall not be bound by such rules in all particulars. Mandatory

discovery is not permitted. The Board’s rules of order shall be ROBERT’S RULES OF

ORDER, NEWLY REVISED, 10th EDITION (Perseus Publishing, 2000).

The Board shall provide a certified court reporter for all hearings, but not for record

checks. The Board may waive this requirement at any time without notice. The Board will

not cause a transcript to be prepared unless it needs a transcript for a particular purpose. If

a petition for judicial review of the Board’s decision is filed, the Board will provide a record

to the court as provided by the Administrative Review Law. Any party may purchase a

transcript from the court reporter at his or her own expense.

The Board designates [name], [address], as its attorney. The Board’s attorney is

authorized and directed to defend the Board’s decision at the circuit court level if a petition

for judicial review is filed and to defend the Board in any litigation that may arise. The

Board directs the appropriate officials of the Board’s parent governmental body to pay the

reasonable and necessary costs of the Board’s operation, including attorneys’ fees, court

reporting fees, and similar expenses, from its general funds.

15. SESSIONS. After the Board convenes, it will be in session continuously until all

objections are disposed of. The Board may recess from time to time.

16. NOTICE OF FILING AND SERVICE. Any party filing any document must give

notice of that filing and a copy of the document being filed to all other parties to the case. If

a party or his or her attorney has a fax machine, service may be made to the fax machine.

Service shall be effectuated in a manner reasonably calculated to provide actual and

prompt notice to the party. The party filing the document shall file a sworn Proof of Service

with the Board. The Proof of Service shall set forth the time, date, and manner of service.

The Proof of Service shall be filed with the ex officio clerk or his or her designee. All

documents shall be filed with the ex officio clerk or his or her designee during regular office

hours, or with the Board in open session.

Copies of any documents filed with the ex officio clerk should also be sent by hand

delivery or facsimile transmittal to the Board attorney, [attorney’s phone number], fax

[attorney’s fax number].

Adopted January __, 20__:

ELECTORAL BOARD

______________________________________

Chairman

______________________________________

Member

______________________________________

Member

Procedures and Practices

I. [3.1] Scope of Chapter

II. Municipal Legislative Procedures

A. [3.2] Council or Board Meeting Procedures

B. [3.3] Parliamentary Law and Rules of Procedure

C. [3.4] Mayor or President as Presiding Officer

D. [3.5] Powers of Council or Board over Its Members

E. [3.6] Mayor or President Pro Tem and Temporary Chairman

F. [3.7] Temporary Chairman

G. [3.8] Powers of Mayor in an Emergency

H. [3.9] Mayor’s Signature

I. [3.10] Committees

J. Meetings

1. [3.11] Types of Council or Board Meetings

2. [3.12] Public Meetings and Public Participation

a. [3.13] General Rules Governing Meetings

b. [3.14] General Notices Required

c. [3.15] Notice Procedures for Special, Emergency, Reconvened, or

Rescheduled Meetings

d. [3.16] Agendas and Minutes; Semiannual Review of Closed Session Minutes

e. [3.17] Closing Meetings to the Public

f. [3.18] Exceptions Allowing Closed Meetings

g. [3.19] Enforcement of the Open Meetings Act

h. [3.20] Interpretations of the Open Meetings Act

i. [3.21] Consequences of Violating the Open Meetings Act

j. [3.22] Public Comment

3. [3.23] Notice of Public Meetings

4. [3.24] Records of Council or Board Meetings

a. [3.25] Publication of Proceedings and Other Documents

b. [3.26] Reading of Minutes, Ordinances, and Correspondence

c. [3.27] Amendment of Records

K. [3.28] When To Use Ordinances, Resolutions, and Motions

L. Ordinances

1. [3.29] Ordinances Containing Penalties

2. [3.30] Effective Date of Ordinances — Publication

3. [3.31] Recording of Ordinances

4. [3.32] Public Notices and Hearings on Ordinances

M. [3.33] Quorum

N. [3.34] Officers: Effect of Failure To Take Oath and Post Bond on Authority To Vote

O. Voting

1. [3.35] Voting Requirements

2. [3.36] Method of Voting

3. [3.37] Omnibus Voting

4. [3.38] Refusal To Vote

5. [3.39] The Mayor’s or President’s Right To Vote

P. [3.40] Approval and Veto of Ordinances, Resolutions, and Motions

Q. [3.41] Reconsideration of Actions

R. [3.42] Right of the Public To Inspect Records — Freedom of Information Act

1. [3.43] What Is the Effective Date of the FOIA, and Why Does It Matter?

2. [3.44] What Is the Basic Structure of the FOIA?

3. [3.45] What Is a Public Body?

4. [3.46] How Is the Term “Public Records” Defined?

5. What Must a Municipality Do To Comply with the FOIA?

a. [3.47] Provide Data About the Municipality

b. [3.48] Prepare Rules of Procedure

c. [3.49] Respond to Categorical Requests

d. [3.50] Consider the Form of Records

6. [3.51] What Public Records or Portions Thereof Are Exempt from Public

Disclosure?

a. [3.52] Strict Construction and Conflicting Laws

b. [3.53] Invasion of Privacy

c. [3.54] Investigatory Materials

d. [3.55] Quasi-Commercial, Trade, Technical, and Financial Items

e. [3.56] Communications with Municipal Attorney

f. [3.57] Information Protecting the Essential Functions of Public Agencies

g. [3.58] Qualification Examinations

h. [3.59] Preliminary Materials and Drafts

i. [3.60] Other Important Cases To Note

j. [3.61] Overview of Additional Exemptions

k. [3.62] Releasing Exempted Materials

7. [3.63] Exempt vs. Nonexempt Material: Is Deletion the Creation of a New

Record?

8. [3.64] If a Public Body Provides Its Records to Another Entity, Does It Waive

the Right To Protect Those Records from Disclosure Under an FOIA

Exemption?

9. [3.65] When a Municipality Refuses To Allow Access, What Are the Rights of

the Applicant?

10. [3.66] Is a Public Entity Liable for Violating an Individual’s Right of Privacy if

It Releases Information in the Belief That It Is Not Protected by the

Privacy Exemption?

11. [3.67] Do Federal Court Cases and Cases from Other State Courts Provide Any

Help in Interpreting the FOIA?

12. [3.68] What About Electronic Communication?

13. What Are the Research Tools Available To Interpret the FOIA?

a. [3.69] Books and Pamphlets

b. [3.70] Annotations from A.L.R.

c. [3.71] Legal Encyclopedias

d. [3.72] Internet Resources

14. [3.73] Is There Guidance on the Retention and Destruction of Public Records?

15. [3.74] This Is a Lot To Absorb! What Is the Bottom Line?

S. [3.75] Press and Media Relations

III. [3.76] Sample Rules of Order and Procedure

IV. Seventeen Ways To Shorten and Improve Municipal Meetings

A. [3.77] Prepare an Agenda for All Meetings

B. [3.78] Don’t Clutter Up an Agenda with Items Not Ready To Be Discussed or That

Have Been Discussed to Death

C. [3.79] Finalize Decisions

D. [3.80] Make Substantial Use of a Consent (Omnibus) Agenda

E. [3.81] Consider a Realistic Limitation on Debate and on Meeting Length

F. [3.82] Consider the Use of Intergovernmental Agreements

G. [3.83] Limit or Control Public Comment

H. [3.84] Use Consultants Wisely

I. [3.85] Limit Council or Board Debate

J. [3.86] Observe Timeliness

K. [3.87] Utilize Legally Noticed Pre-Meeting Sessions

L. [3.88] Hold Retreats

M. [3.89] Prepare Full Agenda Packets

N. [3.90] Encourage Pre-Meeting Tours of Sites

O. [3.91] Amend or Develop Ordinances To Avoid Repetitive Requests

P. [3.92] Develop Form Ordinances

Q. [3.93] Conduct Training Sessions for Elected Officials

I. [3.1] SCOPE OF CHAPTER

This chapter discusses the municipal legislative procedures that apply in Illinois cities and

villages. Sections 3.2 – 3.75 below deal with the roles of various municipal officials in the

conduct of public meetings, the procedures under which public meetings are called and held, and

the minutes and other records of a municipality. Section 3.76 below contains a sample set of rules

of order and procedures that have been written specifically for use in Illinois municipalities.

Sections 3.77 – 3.93 below present 17 ways to shorten and improve municipal meetings. The

chapter also discusses in some detail the subject of municipal ordinances, especially as the

passage of these ordinances relates to the procedures governing municipal corporations. For more

information on the production, passage, repeal, and interpretation of ordinances, see Chapter 8 of

this handbook.

Note that unless specifically stated to the contrary, provisions containing the words “council,”

“alderman,” and “mayor” also apply to boards of trustees, trustees, and presidents of

municipalities with these officials.

II. MUNICIPAL LEGISLATIVE PROCEDURES

A. [3.2] Council or Board Meeting Procedures

The manner in which meetings of councils or boards are to be conducted is largely left for the

bodies themselves to decide. The Illinois Municipal Code, 65 ILCS 5/1-1-1, et seq., provides that

the council shall determine its own rules of proceedings. 65 ILCS 5/3.1-40-15. See also People ex

rel. MacMahon v. Davis, 284 Ill. 439, 120 N.E. 326 (1918); Swift v. People ex rel. Ferris Wheel

Co., 162 Ill. 534, 44 N.E. 528 (1896); Cain v. Lyddon, 343 Ill. 217, 175 N.E. 391 (1931). It is not

a court’s function to impose parliamentary requirements not demanded by local or state rules or

to strike down local rules that the court may deem unwise. City & Suburban Distributors-Illinois,

Inc. v. City of Chicago, 157 Ill.App.3d 791, 510 N.E.2d 1158, 110 Ill.Dec. 127 (1st Dist. 1987).

Since the statutes do not rigidly limit the council regarding the exact procedure to be followed

except in certain instances, it is essential that the council adopt rules governing its deliberations.

See §3.76 below.

Subject to the requirements of the Open Meetings Act, 5 ILCS 120/1, et seq., the council may

prescribe by ordinance the time and place of its meetings and the manner in which special

meetings may be called. 65 ILCS 5/3.1-40-25. The mayor or any three aldermen may call special

meetings of the council. Roti v. Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30

(1st Dist. 1983). The same rule applies to village boards. Under the commission form, the mayor

or any two commissioners may call special meetings (65 ILCS 5/4-5-12) by giving not less than

24 hours’ notice to all council members. See §3.23 below regarding the notice requirement for

public meetings. In a strange dichotomy, however, commission form governments are

nonetheless subject to the Open Meetings Act requirement that the public must be given at least

48 hours’ prior notice of all nonemergency special meetings, which appears to lay the

groundwork for situations in which the public receives notice of commission form special

meetings a day before the council members themselves are alerted. 5 ILCS 120/2.02(a).

The council is a corporate entity. Unless doing something legally delegated to him or her, a

council member, when not participating in a legal council meeting, has no more power or

prerogative, except as conservator of the peace (65 ILCS 5/3.1-15-25(a)), than any other citizen

of a municipality. The law generally favors the right of an individual council member to have

access to such records of the municipality as are needed to carry out his or her duties. Wagner v.

Redmond, 127 So.2d 275 (La.App. 1960). In other words, members of legislative bodies are

entitled to the data they reasonably need to make decisions. Even if the members of a council or

other municipal officers without a specific delegation of authority by the council agree

specifically and separately to a certain contract or transaction, it has no force unless acted on and

passed at a legal meeting of the council. Bank of Pawnee v. Joslin, 166 Ill.App.3d 927, 521

N.E.2d 1177, 118 Ill.Dec. 484 (4th Dist. 1988). In a non-home rule community, neither an

individual official nor a full council possesses the power to waive the provisions of a specific

statutory requirement, such as the one to file a bond or oath of office. People ex rel. Mitchell v.

Armspach, 314 Ill.App.2d 573, 41 N.E.2d 781 (2d Dist. 1942) (abst.).

B. [3.3] Parliamentary Law and Rules of Procedure

There are no generally established statutory principles of parliamentary law. The practice of

the courts is to treat rules of procedure and parliamentary law practices with great liberality.

Nevertheless, every council member ought to have a working knowledge of at least some of the

more elementary rules of parliamentary procedure. A good resource for this purpose is

ROBERT’S RULES OF ORDER in its latest edition. Because the copyright has lapsed on the

original RULES OF ORDER, there are many editions and commentaries available. See §3.76

below, in which the sample rules of order and procedure adopt ROBERT’S RULES OF ORDER.

The First District Appellate Court has had the opportunity to consider the powers of a city

council to adopt and amend its rules. In Roti v. Washington, 114 Ill.App.3d 958, 450 N.E.2d 465,

71 Ill.Dec. 30 (1st Dist. 1983), the court held that each city council is entitled to make its own

rules and that a newly elected council cannot be bound by the rules set by the previous council.

The court accordingly ruled that the new council’s adoption of rules of order by a majority was

proper even though the adoption had the effect of amending certain rules of the previous council

and of violating the prior council’s rules requiring a supermajority vote to amend the rules.

Subsequently, the same council voted to reduce the supermajority requirements for amending

rules to a simple majority. This amendment was effected by a simple majority, achieved when the

mayor cast a tie-breaking vote. The appellate court accepted the argument that the power to enact

is the power to repeal and held that the amendment of the supermajority rule by a simple majority

was proper. Roti v. Washington, 148 Ill.App.3d 1006, 500 N.E.2d 463, 102 Ill.Dec. 570 (1st Dist.

1986).

Thus, it appears that a simple majority of a council retains its power to make and amend its

rules despite the existence of rules, either self-imposed or imposed by a prior council, that require

a supermajority vote to amend rules. However, the proper course of action in exercising this

power is first to amend the rules applicable to amending rules and then to amend any other rules.

If the rules applicable to amending rules are not amended first, any amendments attempted in

violation of those rules may be invalid. The courts have become far more sympathetic to the will

of a new council majority for this reason, and it is not clear that a court would continue to require

a council to modify its rules of procedure before attempting in a clear effort to take a different

course of action. The court probably would look, among other things, to the extent that the

modification in the procedure deprived the public of some opportunity to affect the government’s

action.

The council in a non-home rule municipality may abolish, modify, or waive its own rules, but

it cannot disregard statutory requirements. People ex rel. Gregory v. Strohm, 285 Ill. 580, 121

N.E. 223 (1918); City of Kankakee v. Small, 317 Ill. 55, 147 N.E. 404 (1925). For example, a

street vacation ordinance (65 ILCS 5/11-91-1) requires an affirmative vote of at least three

fourths of all the aldermen or trustees then holding office. When the council has not waived,

modified, or abolished a valid rule of its own making, it is bound to follow the rule. Cain v.

Lyddon, 343 Ill. 217, 175 N.E. 391 (1931).

The mayor is also bound by rules of procedure that have been duly enacted. Rudd v. Sarallo,

111 Ill.App.2d 153, 249 N.E.2d 323 (2d Dist. 1969); Roti, supra, 450 N.E.2d at 471 – 472. The

mayor has certain broader powers regarding procedure, under the power to recommend actions so

that in Cummings v. City of Waterloo, 289 Ill.App.3d 474, 683 N.E.2d 1222, 225 Ill.Dec. 559 (5th

Dist. 1997), a mayor was permitted to execute an application for a zoning change even though the

municipal ordinances seemed to require council action.

In our legal system, there are many instances in which courts appear to apply inconsistent

rules depending on the nature of the cases before them. The preceding paragraphs cite cases in

which courts held governmental bodies to a fairly rigid adherence to their own rules. A failure to

follow these rules generally results in a finding of invalidity or improper action. Sometimes,

however, the courts take a different approach. In Illinois Gasoline Dealers Ass’n v. City of

Chicago, 119 Ill.2d 391, 519 N.E.2d 447, 452 – 453, 116 Ill.Dec. 555 (1988), the Illinois

Supreme Court, quoting Chirikos v. Yellow Cab Co., 87 Ill.App.3d 569, 410 N.E.2d 61, 65, 43

Ill.Dec. 61 (1st Dist. 1980), refused to review whether the City of Chicago had violated one of its

procedural rules in passing a vehicle fuel tax ordinance:

This court cannot handle matters which in effect are attempts to overrule decisions

of a legislative body based upon alleged failure to follow requirements imposed by

that body itself. . . . We have authority to invalidate legislation adopted by the city

council only upon grounds that the enactment violates a provision of the Federal or

State constitutions or violates the mandates of a State or Federal statute.

See also Ealey v. Board of Fire & Police Commissioners of City of Salem, 188 Ill.App.3d 111,

544 N.E.2d 12, 135 Ill.Dec. 655 (5th Dist. 1989) (failure of board to follow its own rules in

conduct of disciplinary hearing overlooked when court found employee was not prejudiced by

such action); Cummings, supra. Because these two views of judicial intervention exist almost side

by side, it is a good idea to pay attention to and strive for a strict adherence to local procedural

rules.

C. [3.4] Mayor or President as Presiding Officer

When presiding at meetings, the mayor generally has the following duties: (1) to open the

session and call the members to order; (2) to announce the business before the council in the

order in which it is to be acted on; (3) to recognize members entitled to the floor; (4) to state and

to put to vote all questions that are regularly moved or necessarily arise in the course of the

proceedings, and to announce the result of the vote; (5) to allow appeals from his or her rulings as

chair of the meeting; (6) to protect the council from frivolous or dilatory action; (7) to restrain the

members when engaged in debate; (8) to keep the proceedings generally within the rules of order;

(9) to require the council room to be cleared in cases of disturbances or disorderly conduct; and

(10) to assist in expediting business in every way compatible with the rights of the council.

The mayor does not have the power to refuse to let the council consider a motion. Rudd v.

Sarallo, 111 Ill.App.2d 153, 249 N.E.2d 323 (2d Dist. 1969). If a mayor takes this action, the

council should, after a successful motion to appeal the decision of the chair, proceed with its

business. If the mayor fails to follow the appropriate rules of procedure, the council may be able

to act in spite of the rulings of the presiding officer. Roti v. Washington, 114 Ill.App.3d 958, 450

N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983).

It is a general rule in deliberative assemblies such as councils or boards that the presiding

officer shall not participate in the debate or other proceedings in any other capacity than as this

officer. The presiding officer usually limits himself or herself to the following: (1) injecting such

matters of fact as may be within the officer’s knowledge; (2) informing the council on points of

order or the course of proceeding when called on for this purpose or when it seems necessary to

do so; and (3) explaining the decision on appeal from a ruling on a question of order. A presiding

officer who wishes to participate in the debate sometimes may call a member to the chair.

However, the mayor or president, at least in smaller Illinois municipalities, usually follows the

course of participating in discussions of matters before the council without relinquishing the

chair. Unless the rules of procedure adopted by the council forbid such an active role, there is

nothing improper in this practice.

In many communities, the mayor assumes leadership in improving the caliber of the

government of the municipality. Without attempting to minimize the importance of the other

council members, it is the mayor, by reason of his or her position, who is apt to be the leader in

properly providing for the safety, health, and welfare of the citizens of the community. A mayor

must be prepared to provide leadership in the fulfillment of essential municipal goals, including a

modern budget system; a current zoning ordinance; housing and building codes to protect

property; a long-term comprehensive plan; efforts at economic development; an ongoing human

relations program; protection against liability through adequate insurance or individual or group

self-insurance; and an aggressive program to provide needed municipal revenues, services, and

facilities. Under the mayor’s power to “recommend for consideration measures the mayor . . .

believes expedient,” one court allowed the mayor to act on behalf of the city council in asking for

a public hearing on a zoning change. Cummings v. City of Waterloo, 289 Ill.App.3d 474, 683

N.E.2d 1222, 225 Ill.Dec. 559 (5th Dist. 1997). Also, in light of the potentially serious legal and

financial consequences that may result from a community’s official actions, the mayor should

take an active leadership position in risk management by supporting educational programs for the

council, other municipal officers, and employees concerning such sensitive legal matters as civil

rights and tort liability. However, in municipalities in which the mayor or president does not have

the regular support of more than one third of the council or board, a two-thirds majority may

enact ordinances over the mayor’s or president’s veto, which can severely restrict the power of

the office. In general, the mayor or president is obligated to follow policy decisions contained

within ordinances, resolutions, or motions that do not interfere with specific statutory authority

granted to the mayor or president. In addition, a mayor, president, or manager cannot generally

expend funds on behalf of the municipality without approval from the board or council.

Most important of all, it is the responsibility of the mayor, president, or manager to

coordinate all of the activities of the municipality and the various boards, commissions, and

officers. This task requires the exercise of leadership, diplomacy, perception, and, above all,

patience.

Under the Election Code, 10 ILCS 5/1-1, et seq., proceedings to contest mayoral elections

may be heard and determined by the circuit courts in the respective counties. 10 ILCS 5/23-4.

D. [3.5] Powers of Council or Board over Its Members

The council or board is the sole judge of the election of its members. 65 ILCS 5/3.1-40-10. It

is also the sole judge of whether an alderman meets the requirements for office set out in 65 ILCS

5/3.1-10-5. However, a court may hear a proceeding in quo warranto under Article XVIII of the

Code of Civil Procedure, 735 ILCS 5/1-101, et seq. (see 735 ILCS 5/18-101 through 5/18-108) to

determine whether an alderman is legally holding office. People ex rel. Reed v. Thomas, 43

Ill.App.3d 372, 356 N.E.2d 1372, 2 Ill.Dec. 85 (5th Dist. 1976). When election contest

proceedings are brought before the city council, the procedures and time frames for contesting the

election are probably those set forth in 10 ILCS 5/23-20, but they would be modified in that the

petition would be filed with the city clerk. Nesladek v. Kanka, 341 Ill. 180, 173 N.E. 94 (1930).

The Election Code retains the rights of councils to hear election contests. 10 ILCS 5/23-6.1.

The city council may punish its members for disorderly conduct. With the concurrence of two

thirds of the aldermen elected, it may expel an alderman, but not a second time for the same

incident. 65 ILCS 5/3.1-40-15. The council also may compel the attendance of absentees at a

properly called meeting under whatever penalties, including a fine for a failure to attend, that

have been established previously by ordinance. 65 ILCS 5/3.1-40-20. The same powers apply to

village boards.

E. [3.6] Mayor or President Pro Tem and Temporary Chairman

The Illinois Municipal Code provides that if through temporary absence or disability the

mayor or president is unable to perform his or her duties, no vacancy is created in the office. See

65 ILCS 5/3.1-35-35(a). In this case, the council elects one of its members to act as mayor or

president pro tem. The absence referred to in the statute for the appointment of a mayor or

president pro tem relates not to a mere absence from the council or board chamber while the

mayor or president is in some other part of the city or village, but rather an absence from the city

or village for such a length of time as would reasonably call for the appointment of a fully

empowered replacement, or an absence due to a provable physical or mental inability to perform

the general functions and duties of the office. The mayor or president pro tem, during the mayor’s

or president’s absence or disability, shall perform the duties and possess all the rights and powers

of the mayor or president, but he or she cannot vote both as an alderman or trustee and as the

mayor. Id. Because the alderman or trustee can vote more frequently, the authors believe that the

votes are to be cast in this capacity, although the right to veto should also be available. See also

the language at 65 ILCS 5/3.1-40-30 relating to the vote of a mayor pro tem. If, in the absence of

the mayor or president, items are to be considered by the council or board that require the

signature of the executive officer, a mayor or president pro tem should be elected in order that

these matters may be properly acted on. In People v. Blair, 82 Ill.App. 570 (2d Dist.), aff’d, 181

Ill. 460 (1899), municipal officials were warned against the indiscriminate appointment of a

mayor pro tem. The Blair court held that the mayor pro tem could remove officers whom the

regular mayor had appointed, fill all vacancies in appointive offices, veto ordinances that the

mayor intended to sign, and revolutionize the policies of the mayor.

However, a mayor or president pro tem cannot be appointed if the mayor or president is

actually in the city or village and capable of performing his or her duties but does not appear at

the council or board meeting. In the event that the mayor or president fails to attend a meeting,

the council or board is given specific authority to select a temporary chair, who shall have only

the power of a presiding officer and a right to vote in the capacity as alderman or trustee on any

ordinance, resolution, or motion. 65 ILCS 5/3.1-35-35(b). A temporary chair can also be elected

from the council to serve in the absence of an acting mayor or a previously selected mayor pro

tem. Such an appointment also can be made if there is a vacancy in the position of mayor until an

acting mayor is appointed.

Under the commission form, the commissioner of accounts and finances is vice president of

the council and, as such, performs the duties of the mayor in his or her absence. 65 ILCS 5/4-5-1.

F. [3.7] Temporary Chairman

A mayor or president pro tem is not the correct substitute when a vacancy occurs. In this case,

a temporary chairman may be selected until an acting mayor is selected. If the mayor’s absence is

of such a short duration as to require the appointment of only a temporary chair, the mayor may

accomplish certain acts at the meeting in spite of the absence by informing the council by written

communication of appointments made or other items on which he or she desires the council to

act. Blair v. People ex rel. Barber, 181 Ill. 460, 54 N.E. 1024 (1899). The same rules apply to a

village president.

In the brief absence of the mayor, president, acting mayor or president, or mayor or president

pro tem, the corporate authorities may elect one of their members to act as a temporary chairman.

During the temporary appointment, the appointed member of the city council or village board

shall be designated “temporary chairman.” The temporary chairman cannot receive additional

compensation because of the appointment and has only the powers of a presiding officer and a

right to vote only in the capacity of an alderman or trustee. 65 ILCS 5/3.1-35-35(b).

G. [3.8] Powers of Mayor in an Emergency

The Emergency Interim Executive Succession Act, 5 ILCS 275/1, et seq., details the way

various governmental positions are filled in the case of an attack on the nation or when a natural

or man-made disaster occurs. The legislative body of a local government is given the authority to

pass a plan of succession consistent with that enacted. 5 ILCS 275/6. The mayor is also given

emergency powers under 65 ILCS 5/11-1-6. These powers, once exercised, are to expire not later

than the adjournment of the first regular meeting of the corporate authorities after the state of

emergency is declared. Id.

H. [3.9] Mayor’s Signature

The mayor may designate someone else to affix his or her signature to any written instrument

that requires the mayor’s signature. The mayor must send written notice of this designation to the

city council, stating (1) the name of the person selected and (2) what instrument the person will

have authority to sign. A written signature of the mayor executed by the person so designated,

with the signature underneath of the person so designated, must be attached to the notice, and the

notice, with the signature attached, must be recorded in the journal of the city council and then

filed with the city clerk. When the signature of the mayor is placed on a written instrument at the

direction of the mayor in the specified manner, the instrument, in all respects, shall be as binding

on the city as if signed by the mayor in person. 65 ILCS 5/3.1-35-30.

I. [3.10] Committees

The Illinois Municipal Code makes no provision for the appointment of committees by the

corporate authorities although some references presuppose their existence. For example, 65 ILCS

5/3.1-40-35 provides that upon request of any two aldermen present any report of a committee of

the council shall be deferred for final action thereon to the next regular meeting of the council

after the report is made. 65 ILCS 5/3.1-55-20 provides that in the adjustment of the accounts of

the collector or treasurer with the clerk or comptroller, if there is one, there shall be an appeal to

the finance committee in all matters of controversy unless the council shall otherwise provide.

Committees are sanctioned by custom and usage:

Such committees are mere agencies or instrumentalities of the governing body. . . .

This method of performing portions of the public business is not forbidden, has

existed from the beginning, and is sanctioned by judicial decisions. 4 Eugene

McQuillin, THE LAW OF MUNICIPAL CORPORATIONS §13.51 (3d ed. rev. 2002).

It should be remembered, however, that the committee is the creature of the council and that

the committee’s function must first have been authorized by the council, or the council must

subsequently ratify the committee action. Gillett v. Board of Supervisors of Logan County, 67 Ill.

256 (1873).

In any event, the primary function of committees is policy recommendation to the body or

person with final policy-making authority. The actual administration of a particular municipal

activity or department remains the responsibility of the administrative official in charge thereof.

Hence, council and board members will save themselves much time and bother in connection

with administrative details by making these matters the responsibility of qualified administrative

officials. In manager-form municipalities, council committees are often dispensed with.

It is customary for a governing body to delegate various types of preliminary work to

standing committees. Unless the council places the authority to appoint these committees in the

mayor, the committees are appointed by the council. Partney v. Dallas, 111 Ill.App.2d 261, 250

N.E.2d 166 (5th Dist. 1969). Committees can conduct investigations, make detailed studies of

pending proposals (whether ordinances, resolutions, or other matters), and keep in close contact

with the work of the various municipal departments and officers. The mayor should require that

the committee members reach a decision prior to the council meeting regarding their

recommended action. Effective committees can perform detail work and prepare suggested texts

of ordinances that may not feasibly be drafted by the full council. An ineffective committee

system, however, results in prolonged council meetings since the committee members are prone

to argue all issues anew rather than to submit well-prepared majority and minority reports.

It is usually unnecessary for the rules of the council to incorporate elaborate procedures with

respect to committee meetings. In most cases, the committee will be small, and it will be simple

for the members of the committee to agree among themselves regarding the dates and times of

meetings. Notice of committee meetings and issues relating to open and closed sessions are

subject to the Open Meetings Act. Op. Att’y Gen. (Ill.) No. 82-030. Minutes must be taken at

committee meetings. See §§3.16, 3.24 – 3.27 below.

It is suggested that the rules of the council require that committee reports be signed by a

majority of the committee. The council also may appoint special committees to aid in the

handling of problems that can be disposed of in a relatively short time. The existence of a special

committee ends either when the committee submits its report or when the special problem that led

to its formation is resolved.

J. Meetings

1. [3.11] Types of Council or Board Meetings

Council or board meetings may be (a) regular, with the specific dates for the meetings

annually stated or periodically modified, (b) special, being called from time to time, or (c)

emergency. No additional notice is required to comply with the Open Meetings Act when a

meeting is reconvened if notice is made and the meeting will reconvene within 24 hours or if an

announcement of the time and place of the reconvened meeting is made at the original meeting

and there is no change to the original agenda. 5 ILCS 120/2.02(a).

The dates for regular meetings must be set by the council or board; a member is presumed to

know the meeting dates, and no special notice is required. The Open Meetings Act requires that

notice of all regular meetings of any municipal corporation and its administrative subunits be

given at the beginning of each calendar or fiscal year. Id. In addition, a schedule of the regular

meetings must be prepared and made available to the public, and a notice must be published in a

newspaper at least ten days prior to any permanent change in the regular meeting date. 5 ILCS

120/2.03. See §3.23 below regarding the notice requirements for public meetings. In commissionform

municipalities, there is a statutory requirement that there be two regular council meetings

each month. 65 ILCS 5/4-5-12. No other form of municipal government has the number of its

meetings set in this manner. At a regular meeting, the council or board can discuss any subject

and add any subject to the agenda, but it cannot act on a matter that has not been specified on the

agenda. Rice v. Board of Trustees of Adams County, Illinois, 326 Ill.App.3d 1120, 762 N.E.2d

1205, 261 Ill.Dec. 278 (4th Dist. 2002). The courts have not yet fully dealt with whether the

matter must specifically appear on the agenda or merely relate to a subject that is specified on the

agenda. After Rice, however, the traditional practice of ending the agenda of regular meetings

with the phrase “old business” or “new business” likely is not sufficiently specific to constitute

valid notice for a matter to be acted on.

Unlike regular meetings, special meetings require specific notice. Special meetings may be

called for any legal purpose, but the notice must be issued and served on behalf of the

municipality by an official (usually the clerk) sufficiently in advance of the meeting as the

ordinance and statutes provide. The notice of a special meeting must state the purposes for which

the special meeting is called. No business may be transacted at the special meeting except that for

which it is called, as set out in the notice, in part because the Open Meetings Act protects the

rights of the press and the public to be notified of the business of the municipality. Even if all

members of the legislative body waive notice of the particular matter to be discussed, the

intervening rights of the public and the press to this notice probably cannot be waived. Ward v.

City of DuQuoin, 173 Ill.App. 515 (4th Dist. 1912). See also §3.23 below for the manner in which

a required notice of regular and special meetings is to be communicated.

It will not suffice to place as the last item of business at a special meeting the phrase “other

business.” This phrase gives the press and public no notice of the specific matter that will be

discussed. On the other hand, at a regular or an adjourned regular meeting, any matter may be

brought up and discussed but not acted on, regardless of whether the item or issue was

specifically delineated in the agenda.

A matter that is frequently neglected is the entry of proof of notice of the special meeting in

the minutes (journal) of the council. If the giving of the notice is not made a matter of record and

any action taken at the special meeting is attacked, the serving of notice must be established by

proof outside the record. If proof of notice is stated in the record, it cannot be attacked

collaterally, and this potential difficulty is avoided. Village of Atwood v. Otter, 296 Ill. 70, 129

N.E. 573 (1920). This proof of notice should contain the certificate of the person who delivered

the notices to the members of the corporate authorities and should specify in each case who

received the notice or whether it was merely left at the council or board member’s home.

A regular or special meeting may be adjourned to a later date provided it is not beyond the

date of the next regular council meeting. Any subject may be considered at an adjourned regular

meeting that might have been considered at the original regular meeting. No subject may be

considered at any adjourned special meeting that might not have been considered at the original

special meeting.

After a meeting is finally adjourned, no further legal action can be taken in the meeting. A

motion for a recess is the proper manner of adjourning a meeting to a later hour on the same day.

Upon reconvening a meeting after a recess, the roll should be called again, especially if the

meeting has not been properly adjourned. For example, if it is adjourned by voice vote when a

roll call is requested, business can validly be conducted after the “adjournment” if a quorum is

present even if the mayor has left the council chamber and someone has been designated to

preside in the mayor’s stead. Roti v. Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec.

30 (1st Dist. 1983).

If there is some doubt of the propriety of any action taken at an earlier special meeting, then

at a subsequent regular meeting of the council a motion should be adopted to ratify all actions

taken at the earlier special meeting. Such a motion to ratify action taken at a special meeting will

be effective even though the special meeting was not held pursuant to proper notice. The council

should make certain, however, that the items to be ratified are specifically identified in the agenda

of the meeting at which the ratification is to take place. Argo High School Council of Local 571 v.

Argo Community High School District 217, 163 Ill.App.3d 578, 516 N.E.2d 834, 114 Ill.Dec. 679

(1st Dist. 1987); Lindsey v. Board of Education of City of Chicago, 127 Ill.App.3d 413, 468

N.E.2d 1019, 82 Ill.Dec. 365 (1st Dist. 1984); Simpson v. City of Highwood, 372 Ill. 212, 23

N.E.2d 62 (1939). A municipality, however, cannot ratify an action that was unlawful in the first

place. Care should also be taken to see whether the earlier action needs to be repealed because in

rare cases it may have a negative effect if it remains on the public record. Feret v. Schillerstrom,

363 Ill.App.3d 534, 844 N.E.2d 447, 300 Ill.Dec. 449 (2d Dist. 2006).

2. [3.12] Public Meetings and Public Participation

The Open Meetings Act requires all meetings of state agencies, county and townships boards,

city councils or village boards of trustees, and other covered public bodies to be open to the

public. In addition, all meetings of committees or subcommittees of the parent body and all

boards and commissions must be held in public. Op. Att’y Gen. (Ill.) No. 82-030. The Attorney

General has offered the opinion that the deliberations of certain governmental bodies acting in a

quasi-judicial capacity at a public meeting must also take place in public. Op. Att’y Gen. (Ill.)

No. 83-004. Examples of these bodies are a plan commission or zoning board of appeals. To this

general rule there are, however, a few exceptions, which are noted in §3.18 below. Home rule

units also are subject to the Open Meeting Act’s requirements but are free to enact ordinances

establishing stricter requirements in order to give the public more notice and encourage public

access to meetings. 5 ILCS 120/6.

The Open Meetings Act further requires that all final action taken at an open session must be

preceded by a public recital of the nature of the matter being considered and such other

information as would inform the public of the business being conducted. 5 ILCS 120/2(e). Under

the Time Off for Official Meetings Act, 50 ILCS 115/0.01, et seq., elected officials of

municipalities must be given uncompensated relief time by their employers to attend official

governmental meetings. 50 ILCS 115/1(a).

In 2004, the Eleventh Circuit Court of Appeals stated that a municipality could

constitutionally enact a procedural rule that limited the public participation section of the meeting

to a city resident or a taxpayer. Rowe v. City of Cocoa, Florida, 358 F.3d 800 (11th Cir. 2004). It

is difficult to know how such a case would be decided by the Seventh Circuit Court of Appeals or

the United States Supreme Court. This does provide food for thought to a municipality that is

about to go into a project in which it expects opposition from vocal outsiders.

a. [3.13] General Rules Governing Meetings

For purposes of the Open Meetings Act, a “meeting” is any gathering of a majority of a

quorum of the members of a public body held for the purpose of discussing public business. 5

ILCS 120/1.02. At press time, Senate Bill 585, which expands the definition of “meeting” to

incorporate gatherings of a majority of a quorum that are not in person, but rather are conducted

by video or audio conference, telephone, e-mail, chat room, or instant messaging, had passed both

chambers of the General Assembly and awaited the Governor’s signature. Once signed into law,

S.B. 585 will expand the range and nature of gatherings subject to the Open Meetings Act’s

strictures, elevating the substance of the meeting over the particular form by which public

officials communicate. Regardless of this impending broadening of the Act, note that the Act

refers to a majority of a quorum rather than a quorum itself. Thus, three members of a sevenmember

village board or school board convening for the purpose of discussing public business

constitute a sufficient number to trigger the provisions of the Open Meetings Act. Likewise, since

three members of a commission in the commission form of government constitute a quorum, a

two-member majority discussing public business will constitute a gathering that is covered by the

Act. The Act also applies to committees and subcommittees of a public body even if they consist

of less than a majority of a quorum of the public body. Op. Att’y Gen. (Ill.) No. 82-030. Thus, a

meeting of two members of a three-person committee must follow the provisions of the Act.

However, when public officials can prove they were actually meeting to discuss political strategy

rather than public business, the courts have held that no violation of the Act took place. Nabhani

v. Coglianese, 552 F.Supp. 657 (N.D.Ill. 1982). The same would be true when the requisite

number of officials gather for a social occasion.

All final action must take place in an open rather than a closed or executive session. Certain

actions, such as a direction to an attorney to make an offer in a condemnation case, can be

informally decided in closed session, and such a direction will still bind the municipality. Prior to

final action, an explanation of the matter to be considered must be given so that if a vote is taken

the public knows what is being considered. Simply reciting an ordinance number and conducting

a vote is insufficient.

All meetings required to be public must be held at specified times and places that are

convenient to the public. No meetings required by the Open Meetings Act to be public shall be

held on a legal holiday unless the regular meeting day falls on the holiday. 5 ILCS 120/2.01.

Under the Promissory Note and Bank Holiday Act, 205 ILCS 630/17, “legal holidays” in Illinois

include January 1st, the third Monday in January (observance of Martin Luther King, Jr.’s

birthday), February 12th (Lincoln’s birthday), the third Monday in February (Presidents Day), the

first Monday in March (observance of Casimir Pulaski’s birthday), the Friday preceding Easter

Sunday (Good Friday), the last Monday in May (Memorial Day), July 4th, the first Monday in

September (Labor Day), the second Monday in October (Columbus Day), November 11th

(Veterans’ Day), Thanksgiving Day, December 25th (Christmas), the days on which the general

elections for members of the House of Representatives are held, any day proclaimed by the

Governor as a legal holiday, and from noon to midnight of each Saturday. A special meeting may

be held on a regular meeting date that itself falls on a legal holiday if the regular meeting was

cancelled and a special meeting was later noticed for the same holiday date. Argo High School

Council of Local 571 v. Argo Community High School District 217, 163 Ill.App.3d 578, 516

N.E.2d 834, 114 Ill.Dec. 679 (1st Dist. 1987).

Any person may record the proceedings at meetings required to be open by the Open

Meetings Act by tape, film, or other means. The governmental body holding the meeting must

prescribe reasonable rules to govern the right to make these recordings. These rules should be

written and duly adopted by the governmental body. 5 ILCS 120/2.05; Op. Att’y Gen. (Ill.) No.

S-867 (1975). In an informal opinion issued in 2000 by its Opinions Bureau, the Office of the

Illinois Attorney General analyzed municipalities’ procedural rules for recording meetings and

found most of them unreasonable because they hindered or thwarted the “ability of a person to

exercise the right to record a public meeting without an obvious concomitant benefit to the public

body.” Op. Att’y Gen. (Ill.) No. I-00-015. Interestingly, the right to record can be suspended on

behalf of a witness called before a commission, administrative agency, or other tribunal. If the

witness refuses to testify because his or her testimony will be broadcast or televised or because

motion pictures will be taken, the relevant authority “shall prohibit such recording during the

testimony of the witness.” 5 ILCS 120/2.05.

b. [3.14] General Notices Required

Public notice must be given for all meetings whether open or closed to the public. 5 ILCS

120/2.02. The notice requirements in the Open Meetings Act are in addition to, rather than

substituting for, any other notice requirements established by law. 5 ILCS 120/2.04. In addition, a

governmental body also must give public notice of the schedule of regular meetings at the

beginning of each calendar or fiscal year, listing the times and places of the meetings. 5 ILCS

120/2.02(a), 120/2.03. The annual notice also must cover the meetings of committees or

subcommittees of the board or council, as well as meetings of any formally created advisory

groups.

The annual notice must be posted in the principal office of the governmental body or, if no

such office exists, at the building in which the meeting is held. 5 ILCS 120/2.02(b). The annual

notice, as well as changes in the schedule of regular meetings, also must be sent to any news

medium that has filed an annual request for this notice. Id.; 5 ILCS 120/2.03. Agendas required

for meetings must be posted not only at the principal office, but also at the location of the meeting

if it is being held anywhere other than the principal office. 5 ILCS 120/2.02(a).

Any news medium that has filed an annual request to receive notice (known as a “registered

news medium”) shall be given copies of notices of regular meetings and any special, emergency,

rescheduled, or reconvened meeting. In addition, any news medium that has filed an annual

request for notice and has given the public body an address or telephone number within the

territorial jurisdiction of the public body must be given the same type of notice of all special,

emergency, rescheduled, or reconvened meetings, delivered in the same manner, as members of

the public body. 5 ILCS 120/2.02(b). It would appear that when notice of the meeting is delivered

to the homes of the persons to attend the meeting, it must also be delivered to the address of the

news medium within the territorial jurisdiction of the public body if this address previously has

been furnished. In every case but emergency meetings, the registered news media must be sent an

agenda of the meeting. If a governmental body properly sends notice to the news media but the

notice is not received, the actions of the governmental body cannot be invalidated. 5 ILCS

120/2.04. Many news media fail to give the required notice. Municipalities generally try to notify

the media even if the media have been delinquent in following the technical rules they require of

the communities that they cover.

If a change is made in the date not of a single meeting but of the periodic regular meeting

date of a unit of government, committee, subcommittee, or advisory group, the governmental

body must publish notice of the change in a newspaper of general circulation in the area in which

the government functions at least ten days before the date the change takes effect. It must also

post ten days’ notice in the principal office of the government or, if no such office exists, at the

building in which the meeting is to be held. Copies of the notice must also be sent to news media

that have filed annual requests for notice. In the case of a local governmental unit with a

population of less than 500 in which no newspaper is published, this notice may be posted in at

least three prominent places within the governmental unit. 5 ILCS 120/2.03.

c. [3.15] Notice Procedures for Special, Emergency, Reconvened, or Rescheduled

Meetings

A special meeting must be called by the requisite number of members of the board, council,

or their committees or subunits as established by statute or ordinance. Public notice of a special

meeting, except an emergency meeting, along with an agenda for the meeting must be given at

least 48 hours before the meeting by posting the notice at the principal office of the governmental

body and furnishing the notice and agenda to the registered news media. 5 ILCS 120/2.02(a).

If a bona fide emergency situation makes the calling of an emergency meeting necessary,

notice of the emergency meeting must be given as soon as practicable, but in any event prior to

the holding of the meeting, to any news medium that has filed an annual request for notice.

Notice of the emergency meeting must also be posted at the principal office of the governmental

body. 5 ILCS 120/2.02(b).

No notice of a reconvened meeting need be given if the original meeting was open to the

public and is to be reconvened within 24 hours or if an announcement of the time and place of the

reconvened meeting was made at the original meeting and there is no change in the agenda. If the

foregoing conditions are not met, then notice must be posted and given to the registered news

media at least 48 hours before the reconvened meeting. An agenda must accompany the notice. 5

ILCS 120/2.02(a).

Public notice of a rescheduled regular meeting, along with an agenda for the meeting, must be

given at least 48 hours before the meeting by posting the notice at the principal office of the

governmental body and furnishing the notice and agenda to the registered news media. Id.

Agendas for all meetings must be posted not only at the principal office of the governmental

body, but also at the location where the meetings will be held. 5 ILCS 120/2.02(b). If there is no

principal office, then notices and related agendas are simply posted at the building where the

meetings will take place.

Traditionally, it has been held that publication of notice of public meetings by newspaper is

sufficient to inform the public. When, however, certain citizens may be deprived of property by

action taken at such a meeting, notice by publication may not be adequate. This is especially true

if there is an additional reason that the notice may be inadequate, such as when the persons to

whom the notice is directed do not speak the language in which the notice is published. See

Jimenez v. Hidalgo County Water Improvement District No. 2, 496 F.2d 113 (5th Cir. 1974). In

American Oil Corp. v. City of Chicago, 29 Ill.App.3d 988, 331 N.E.2d 67 (1st Dist. 1975), the

court held that notice by publication in a newspaper of a public hearing on a zoning amendment

was not sufficient when the zoning change was not requested by the owner and no personal notice

was given to the property owner himself.

d. [3.16] Agendas and Minutes; Semiannual Review of Closed Session Minutes

It is important that the agenda furnished along with a meeting notice be as complete as

possible. Special items and topics to be discussed and acted on should be listed. The council or

board, at a regular meeting, is free to consider any matter that may legally come before it, but

cannot act on a matter that is not on its agenda. Rice v. Board of Trustees of Adams County,

Illinois, 326 Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill.Dec. 278 (4th Dist. 2002). The courts

have permitted a governmental body to consider any specific matter that is germane to a general

topic listed on an agenda or notice. See Argo High School Council of Local 571 v. Argo

Community High School District 217, 163 Ill.App.3d 578, 516 N.E.2d 834, 114 Ill.Dec. 679 (1st

Dist. 1987). The Open Meetings Act makes special mention of the agenda for special,

rescheduled, or reconvened meetings but provides that the validity of any action taken by the

public body that is germane to a subject on the agenda shall not be affected by other errors or

omissions in the agenda. 5 ILCS 120/2.02(a). The Act does not appear to require an agenda for

emergency meetings. It would be a good policy, however, to prepare agendas for these meetings,

especially if action is expected to be taken. The Act implicitly contemplates that agendas will be

prepared for regular meetings since it provides that notice must be given for a reconvened

meeting when the agenda from the original meeting is changed. The Act authorizes public bodies

to consider items not specifically set forth in the agenda at regular meetings. Id. Courts have

limited this authority to deliberations and discussions only, however, since a public body cannot

take action on a matter that is not set forth in its agenda. Rice, supra.

All public bodies must keep written minutes of all of their meetings, whether open or closed.

These minutes shall include but need not be limited to (1) the date, time, and place of the

meeting; (2) the members of the public body, recorded as either present or absent; (3) whether,

pursuant to Senate Bill 585, which currently awaits the Governor’s signature, such members are

physically present for the meeting or are “attending” from a remote location via participation in a

video or audio conference; (4) a general description of all matters proposed, discussed, or

decided; and (5) a record of any votes taken. 5 ILCS 120/2.06(a). Minutes must be kept of all

meetings, including committee meetings and portions of meetings held in closed session. At least

twice a year, municipalities must meet to review minutes of closed sessions and make a public

statement as to whether there is still a need to maintain closed session minutes in confidence or

whether these minutes or portions thereof no longer require confidential treatment and can be

released for public inspection. 5 ILCS 120/2.06(d). To ensure that a record of these statutorily

mandated reviews and determinations is preserved, a resolution should be adopted memorializing

the decisions made by the public body with regard to closed session minutes.

Pursuant to P.A. 93-523 (eff. Jan. 1, 2004), public bodies are required to make an audio or

video recording of all closed meeting sessions. 5 ILCS 120/2.06(a). A public body must retain

this recording for at least 18 months. The public body may destroy the recording only if the

public body approves written minutes of the closed meeting recorded and also approves the

destruction of the recording. 5 ILCS 120/2.06(c). The semiannual review procedure is the same

for both written minutes and recordings. Unless the public body has determined that the recording

no longer requires confidential treatment, the recording is not available for public inspection or

subject to renewal except by a judge or administrative tribunal. 5 ILCS 120/2.06(d). Section

2.06(d) also specifies that closed meeting minutes are not available to the public until the public

body determines that it is no longer necessary to protect the public interest or the privacy of an

individual by keeping the minutes confidential. While in state court the executive session video or

audiotape or transcript is subject to discovery only in a case specifically attacking the validity of

the Open Meetings Act, in federal court discovery is more broadly available but still subject to

the attorney-client privilege. Kodish v. Oakbrook Terrace Fire Protection District, 235 F.R.D.

447 (N.D.Ill. 2006).

Since the Illinois Municipal Code provides that the clerk is to “attend all meetings of the

corporate authorities” (65 ILCS 5/3.1-35-90(a)), the authors believe that the clerk cannot be

barred from closed sessions unless the clerk is the subject of discussion and it would present a

conflict for the clerk to attend. The clerk also is to keep a full record of the proceedings of the

council in a journal. Id. Interestingly enough, the Illinois Municipal Code does not seem to

require the clerk to keep the minutes, but that is the general understanding and usual practice.

Minutes of committee meetings or meetings of other subsidiary bodies may be taken by an

appropriate person and kept with the general records of the committee or subsidiary body. It may

be a wise decision to centralize the keeping of all minutes with the clerk.

The minutes of meetings open to the public are to be available for public inspection within

seven days of their approval by the public body. 5 ILCS 120/2.06(b). Although the Open

Meetings Act does not specify any particular time for the public body to consider the approval of

its minutes, the courts would undoubtedly impose an obligation to pass on this matter within a

reasonable time.

e. [3.17] Closing Meetings to the Public

While the public policy undergirding the Open Meetings Act is to increase governmental

transparency through the conduct of open meetings, several statutory exceptions have been

enumerated, thereby permitting public bodies to conduct meetings closed to the public in certain,

narrow circumstances. 5 ILCS 120/2(c). Even so, given the Act’s purposes, the exceptions are

strictly construed. 5 ILCS 120/2(b). Only meetings or portions of meetings expressly stated in the

Open Meetings Act may be closed. A public body may hold a meeting closed to the public only if

the following procedures are followed:

1. The subject to be discussed at the meeting is one of the enumerated exceptions listed in

§2(c) of the Act. See §3.18 below for a list of exceptions pertaining to municipalities.

2. A majority of a quorum at a meeting open to the public has voted to have the closed

meeting. 5 ILCS 120/2a.

3. Proper notice was given for the meeting at which the vote was taken. 5 ILCS 120/2a,

120/2.02, 120/2.03.

4. The vote of each member on the question of holding the closed meeting is recorded and

entered in the minutes of the open meeting. 5 ILCS 120/2a, 120/2.06(a)(3).

5. The motion to hold the closed session and the minutes of the meeting contain a citation to

the specific exception under §2(c) that authorizes the closing of the meeting to the public. 5 ILCS

120/2a. In Henry v. Anderson, 356 Ill.App.3d 952, 827 N.E.2d 522, 292 Ill.Dec. 993 (4th Dist.

2005), the court ruled that a board’s citation to subject matter constituting a statutory exception

sufficed and the closed meeting was therefore not illegal merely because the board failed to cite

the specific, numerical statutory citation.

6. The closed session must be recorded in its entirety through a verbatim audio or video

recording, and this tape must be maintained for at least 18 months following the closed session.

120 ILCS 120/2.06(a), 120/2.06(c). The public, however, is not privy to the recording unless a

state civil or criminal action is brought for an alleged violation of the Open Meetings Act, at

which point a judge is permitted an in camera examination of the verbatim record to determine

whether, based on the record’s contents, the public body or its officers and officials violated the

Act. 120 ILCS 120/2.06(d). The exception is limited in a federal court setting.

If the above procedures are complied with and the subject matter to be discussed at the closed

meeting is a permissible basis for a closed meeting pursuant to §2(c), then a closed meeting may

be legally held. Of course, only those topics specified in the motion for a closed meeting may be

discussed at the closed session. 5 ILCS 120/2a. Closed sessions authorized by a proper vote may

take place as part of a properly noticed regular, special, or emergency meeting open to the public

without the need for any further notice or an indication in the agenda that a closed session will be

held during the course of the meeting. Id. After all, in some cases the need for the closed session

may not become apparent until during a meeting.

In endeavoring to properly convene a closed session, it is imperative that the open meeting at

which the above-noted motion and vote take place be properly noticed. For all regular meetings,

including rescheduled regular meetings, an agenda must be posted at the principal office of the

public body and at the location where the meeting is to be held at least 48 hours prior to the

meeting. 5 ILCS 120/2.02(a). The agenda, in turn, should be as specific and complete as possible,

for, while the Open Meetings Act provides that “[t]he requirement of a regular meeting agenda

shall not preclude the consideration of items not specifically set forth in the agenda” (id.), the

Fourth District Appellate Court has held that the Act permits only discussion and deliberations

regarding matters not specifically itemized in the agenda but does not permit any action, such as a

vote being taken or the passage of a resolution or ordinance regarding the matter that is

insufficiently detailed in the agenda. Rice v. Board of Trustees of Adams County, Illinois, 326

Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill.Dec. 278 (4th Dist. 2002).

Furthermore, municipal officials need to be aware of the amendment of the Open Meetings

Act by P.A. 94-28 (eff. Jan. 1, 2006), which dictates that any public body that has a Web site

maintained by its full-time staff also must post on the Web site the agendas of any regular

meetings of the governing body of the public entity and leave these agendas posted until the

conclusion of the regular meeting. 5 ILCS 120/2.02(a). Web sites mounted and maintained by

private parties or by part-time staff or an outside firm, however, are not subject to this

requirement. Furthermore, public bodies that delegate Web site maintenance to full-time, inhouse

staff members must post notice on their Web sites regarding their schedule of regular

meetings and also post the minutes of open meetings within seven days following their approval.

5 ILCS 120/2.02(b), 120/2.06(b). The meeting minutes must remain posted for 60 days. 5 ILCS

120/2.06(b). Nevertheless, these amendments’ impact is softened somewhat by the nonexistent

penalty provision: “The failure of a public body to post on its website notice of any meeting or

the agenda of any meeting shall not invalidate any meeting or any actions taken at a meeting.” 5

ILCS 120/2.02(b). For municipalities maintaining Web sites in-house by full-time staff members,

the practical effect of these amendments is to necessitate frequent updates of municipal Web sites

with the relevant meeting information and minutes.

Unless a closed session to be held at a later date is announced at an open meeting, the session

must be held in conjunction with a regular or special meeting. A motion calling the closed session

must be made at an open meeting and the motion to conduct a closed meeting must pass by a

majority of the quorum present at the open meeting. 5 ILCS 120/2a. The motion should state the

specific exemption applicable to the session being called, such as “pending litigation,” “sale of

property,” and the like. As noted above, the motion need only specifically state the subject matter

basis for the closed session or meeting. Public bodies need not preoccupy themselves with

conjuring up the statutory citation. Therefore, the motion may simply state, for instance, that the

body needs to discuss security procedures in light of a threatened public danger, but the motion

need not explicitly invoke 5 ILCS 120/2(c)(8). See Henry, supra.

Minutes must be taken during all open and closed meetings. 5 ILCS 120/2.06(a). (P.A. 93-

974 (eff. Jan. 1, 2005) amended §2.06(a) to clarify and reiterate that closed meetings require

minutes to be taken in addition to being videotaped or audiotaped, a requirement that was

imposed via the 2004 amendment to the Act by P.A. 93-523 (see §3.16 above).) Minutes must be

kept of all meetings, including committee meetings. Section 2.06(a) provides that the minutes

need only state the time and place of the meeting, who was present or absent, and what was

discussed, as well as provide a record of any votes that were taken. If litigation is being discussed,

the minutes must state the matter under discussion. All minutes of closed meetings should contain

a “summary of discussion” on all matters discussed but need not state the viewpoints of each

participant. 5 ILCS 120/2.06(a)(3). These minutes need not be made public and may be kept in a

special executive session minute book. Unlike the minutes for open meetings, which, as noted in

§3.16 above, are made available to the public within seven days of the approval of the minutes by

the public body (5 ILCS 120/2.06(b)), public bodies are initially permitted to prevent the

disclosure of the minutes of closed meetings. The minutes of closed meetings, however, may be

kept from the public only insofar as they are deemed confidential; thus, public bodies may only

shield the minutes of closed meetings or sessions for as long as is necessary to protect the public

interest or the privacy of an individual. 5 ILCS 120/2.06(d). Therefore, the Open Meetings Act

dictates that the corporate authorities must meet at least every six months to review the minutes of

all closed sessions. At these meetings, which one must reasonably assume can also be closed in

order to preserve the contemplated confidential nature of the proceedings, a determination is

made and is subsequently publicly reported in an open session, preferably by means of a

resolution, either that (1) the need for confidentiality still exists as to all or part of the minutes or

(2) the minutes or portions thereof no longer require confidential treatment and are available for

public inspection. Id. P.A. 94-542 (eff. Aug. 10, 2005) amended §2.06(d) to soften the penalty for

noncompliance with its provisions, stating that a public body’s failure to conduct a semiannual

review of the minutes of closed meetings does not automatically result in the release of the

minutes or recordings to the public or in judicial proceedings as long as the public body, within

60 days of its discovery of the failure to conduct the requisite semiannual review, promptly

conducts such a review and reports in an open meeting either that (1) the need for confidentiality

still dictates that all or part of the minutes remain off limits from public inspection or,

alternatively, (2) the minutes will be opened to the public.

As referenced briefly above, the minutes of a meeting open to the public are to be made

available for public inspection within seven days of the public body’s approval of the minutes as

the official minutes of the proceedings. 5 ILCS 120/2.06(b). Although the Open Meetings Act

does not specify any particular time for the public body to consider the approval of its minutes,

the courts would undoubtedly impose an obligation to pass on this matter within a reasonable

time.

A public body may, by a single vote, authorize a series of meetings, portions of which are

proposed to be closed to the public, provided each meeting in the series involves the same

particular matters and is scheduled to be held within three months of the vote. 5 ILCS 120/2a.

The language of §2a appears to require that a separate notice be provided to the public if no

portion of the meeting is to be held in open session. To the extent that this problem exists, it can

be solved simply by beginning and ending each proposed closed, executive session of the

authorized series of meetings with a portion of the meeting open to the public.

f. [3.18] Exceptions Allowing Closed Meetings

Meetings or portions of meetings concerning certain subjects may be closed to the public,

although these exceptions are to be construed narrowly in light of their derogation from the

overarching public policy favoring governmental transparency. See People ex rel. Ryan v. Village

of Villa Park, 212 Ill.App.3d 187, 570 N.E.2d 882, 885, 156 Ill.Dec. 406 (2d Dist. 1991). The

following list is a compilation of statutory exceptions that may be dealt with in closed sessions

(only those subjects most relevant to municipalities are mentioned and all emanate from 5 ILCS

120/2(c)):

1. collective negotiating matters between public employers and their employees or

representatives (5 ILCS 120/2(c)(2));

NOTE: Since the passage of the Illinois Public Labor Relations Act, 5 ILCS 315/1, et seq., and

the Illinois Educational Labor Relations Act, 115 ILCS 5/1, et seq., which grant collective

bargaining rights to various public employees, it appears that collective bargaining negotiations

and grievance arbitration are simply not subject to the Open Meetings Act (5 ILCS 315/24; 115

ILCS 5/18), and consequently, no notice of these meetings need be given.

2. deliberations concerning salary schedules for one or more classes of municipal

employees (5 ILCS 120/2(c)(2));

3. meetings in which the purchase or lease of real property for the use of the public body is

being considered, including meetings held for the purpose of discussing whether a

particular parcel should be acquired, or in which the public body is considering the

setting of a price for sale or lease of its property (5 ILCS 120/2(c)(5));

NOTE: These discussions must involve a specific piece of property, rather than just the general

idea of buying land or selling land in a particular area. Discussions of this nature involve

questions of general public policy and must be discussed in open session. Village of Villa Park,

supra.

4. meetings held to discuss litigation when an action against, affecting, or on behalf of the

particular body has been filed and is pending in a court or administrative tribunal or when

the public body finds that such an action is probable or imminent, in which case the basis

for such a finding shall be recorded and entered into the minutes of the closed meeting (5

ILCS 120/2(c)(11));

NOTE: When prospective litigation is concerned, there must be a real case or controversy

involved rather than a policy or philosophical debate over a matter that, if not handled properly,

could result in litigation. The courts have demonstrated a willingness to challenge and, ultimately,

invalidate closed sessions if the allegedly potential or probable litigation is too remote and

speculative and lacks a legitimate basis. In Henry v. Anderson, 356 Ill.App.3d 952, 827 N.E.2d

522, 292 Ill.Dec. 993 (4th Dist. 2005), a decision that raised at least as many questions as it

resolved, the court held that a school board violated the Open Meetings Act by going into a

closed session to discuss potential litigation without first making a finding that the litigation it

feared was either filed, pending, probable, or imminent. Because the board did not reference that

the litigation was probable or imminent, the Henry court reasoned, it also necessarily failed to

express a basis for such a finding. The trouble with this reasoning lies in the fact that, in order to

avail themselves of §2(c)(11), public bodies need only note that, in this instance, litigation is

probable or imminent, while the basis for such a finding is simply entered into the minutes of the

closed meeting. To force a public body to reference specifically the probable litigation or to

publicly express a basis for such a finding in open session nullifies the purpose of a closed

session. Therefore, when invoking §2(c)(11) as a vehicle for convening an executive session, a

public body should simply note in its motion that litigation against it is probable or imminent and

then state its basis for such a claim at the closed session itself, safely cordoned off from public

view, and simply record the basis for its probable or imminent finding in its closed session

minutes in clear and unequivocal terms. See also Op. Att’y Gen. (Ill.) No. 83-026.

5. meetings to consider the appointment, employment, compensation, discipline,

performance, or dismissal of specific employees, including the public body’s legal

counsel, or to hear testimony on a complaint lodged against an employee to determine its

validity (5 ILCS 120/2(c)(1));

NOTE: These discussions can involve the entire employment relationship, including the renewal

or continuation of employment and compensation. People v. Board of Education of District 170

of Lee & Ogle Counties, 40 Ill.App.3d 819, 353 N.E.2d 147 (2d Dist. 1976). The Open Meetings

Act allows closed sessions only to discuss the relationship with an independent contractor legal

counsel but not any other independent contractor. See 5 ILCS 120/2(c)(1). See also 5 ILCS

120/2(d), defining “employee.” Section 2(c)(1) of the Act also pertains to closed hearings held by

a board of fire and police commissioners regarding employee termination. Ealey v. Board of Fire

& Police Commissioners of City of Salem, 188 Ill.App.3d 111, 544 N.E.2d 12, 135 Ill.Dec. 655

(5th Dist. 1989). Merely claiming that the basis for a closed session is a discussion of an overly

generalized employment or personnel matter is not sufficient and violates the Act. Furthermore,

this exception only justifies the discussion of a specific, individual employee and cannot be used

to discuss employment generally or an entire class of employees, unless the matter involves

collective bargaining, which is the subject of a separate exception to the Act’s open meeting

requirements. Op. Att’y Gen. (Ill.) No. S-726 (1974).

6. meetings to discuss professional ethics or performance when considered by an advisory

body appointed to advise a licensing or regulatory agency on matters germane to its field

of competence (5 ILCS 120/2(c)(15));

7. meetings to consider the appointment of a person to fill a public office or vacancy in a

public office when the body has the appointing authority and to consider removal from

office when the body has the equivalent power (5 ILCS 120/2(c)(3));

NOTE: The term “public office” includes members of the public body, but it does not include

organizational positions filled by members thereof, whether established by law or by a public

body itself that exists to assist the body in the conduct of its business, such as a committee

system. 5 ILCS 120/2(d).

8. meetings to establish reserves or settle claims as provided in the Local Governmental and

Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq., if the

disposition of a claim or potential claim otherwise might be prejudiced or to discuss

information regarding or from an insurer or self-insurance pool of which the government

is a member (5 ILCS 120/2(c)(12));

9. meetings of bodies with criminal investigatory responsibilities to consider informant

sources; the hiring or assignment of undercover personnel or equipment; or ongoing,

prior, or future criminal investigations (5 ILCS 120/2(c)(14));

10. meetings conciliating complaints of discrimination in the sale or rental of housing,

provided an ordinance has been enacted creating a body for enforcement purposes and

authorizing the closing of these meetings (5 ILCS 120/2(c)(13));

11. meetings to discuss or consider the sale or purchase of securities or investment contracts

(5 ILCS 120/2(c)(7));

12. meetings of a municipality operating as a municipal utility, power, or natural gas agency

to discuss contracts for the purchase, sale, or delivery of electricity or natural gas and the

results of load forecast studies (5 ILCS 120/2(c)(23));

13. meetings of a “quasi-adjudicative body,” such as a board of fire and police

commissioners, to consider testimony and evidence presented in open hearing if the body

makes available its prepared written decision (5 ILCS 120/2(c)(4));

14. meetings to review and approve closed session minutes, including the semiannual review

of closed session minutes pursuant to §2.06(d) of the Open Meetings Act (5 ILCS

120/2.06(d)), discussed in §3.16 above (5 ILCS 120/2(c)(21));

15. meetings to discuss self-evaluation, practices and procedures, or professional ethics when

meeting with a representative of a statewide association of which the body is a member

(5 ILCS 120/2(c)(16)); and

16. meetings to consider security procedures and the use of personnel and equipment to

respond to an actual, threatened, or reasonably potential danger to the safety of

employees and public property or to discuss threats or danger to the security of the public

itself (5 ILCS 120/2(c)(8)).

NOTE: It is no longer necessary that an emergency exist for the public body to hold a closed

session or to describe the emergency in the motion to close the meeting. In addition, the

exemption in §2(c)(8) may also be used for threatened and reasonably potential dangers, not just

actual dangers. P.A. 93-422 (eff. Aug. 5, 2003) expanded the types of security procedures that

can be discussed in closed session to include those relating to the safety of not only employees,

students, staff, or public property but also “the public” itself.

Illinois courts and the Illinois Attorney General, through official and informal opinions, have

construed the exceptions to the Open Meetings Act quite narrowly so as to ensure that these

exceptions cannot be used to avoid the general policy of the Act. Illinois News Broadcasters

Ass’n v. City of Springfield, 22 Ill.App.3d 226, 317 N.E.2d 288 (5th Dist. 1974). See also Op.

Att’y Gen. (Ill.) No. I-01-003 (finding that county board cannot discuss imposition of “cap” on

public works project in closed session in order to avoid having amount influence bidding process

because Act does not include this topic among its exceptions). Nevertheless, even before the

amendment to the Open Meetings Act by P.A. 82-378 (eff. Jan. 1, 1982), the courts authorized

municipal officials to confer privately with their attorneys on prospective litigation by finding

that these communications are not always governed by the Act. People ex rel. Hopf v. Barger, 30

Ill.App.3d 525, 332 N.E.2d 649 (2d Dist. 1975). But see Op. Att’y Gen. (Ill.) No. S-1501 (1980)

(proclaiming that public body could not invoke attorney-client privilege to confer with its

attorney in closed session to discuss petition for tax referendum).

g. [3.19] Enforcement of the Open Meetings Act

Any “person,” or the state’s attorney in the affected county, who believes that the Open

Meetings Act has not been or will not be complied with may bring an action to enforce the Act

within 60 days of either the challenged meeting or discovery of the violation by the state’s

attorney. 5 ILCS 120/3(a); Verticchio v. Divernon Community Unit School District No. 13, 198

Ill.App.3d 202, 555 N.E.2d 738, 144 Ill.Dec. 379 (4th Dist. 1990) (applying 45-day limitations

period in effect at that time); Chicago School Reform Board of Trustees v. Martin, 309 Ill.App.3d

924, 723 N.E.2d 731, 243 Ill.Dec. 428 (1st Dist. 1999) (finding that claim of Open Meetings Act

violation brought by board of trustees was barred because complaint was not filed within 60 days

from date of alleged violation). This latter period of time is meant as a window of opportunity for

the state’s attorney to act on belated discoveries or information and emphatically does not act as

extension of the 60-day limitation period for private persons, which begins running on the date of

the contested meeting. Paxson v. Board of Education of School District No. 87, Cook County,

Illinois, 276 Ill.App.3d 912, 658 N.E.2d 1309, 213 Ill.Dec. 288 (1st Dist. 1995); Kyle v. Morton

High School, District 201, 144 F.3d 448 (7th Cir. 1998). Failure to file a civil suit within the

statutory limitations period constitutes a waiver. The term “person,” as used in §3(a) of the Act to

confer standing to bring suit, is broad in scope, including other public entities and public officials

in their official capacities. Paxson, supra. If the plaintiff prevails in the suit challenging the

improperly closed session, the court may require the governmental body and any individual

member of a board or council to pay the legal fees of the successful litigant. Although the Act

provides that the private litigant may, if unsuccessful, be required to pay the fees of the

governmental body, the court may award these fees only if the private litigant’s action was

malicious or frivolous in nature. 5 ILCS 120/3(d).

The court can enter equitable relief, including granting relief by issuing a writ of mandamus

requiring that a meeting be open to the public, granting an injunction against future violations of

the Open Meetings Act, ordering the public body to make available to the public any portion of

the minutes of a meeting not authorized to be kept confidential under the Act, or declaring null

and void any final action taken at a closed session in violation of the Act. 5 ILCS 120/3(c). The

courts have generally been unwilling to invalidate acts of a municipality for mere technical,

formalistic violations of the Open Meetings Act, such as defective notice. Williamson v. Doyle,

112 Ill.App.3d 293, 445 N.E.2d 385, 67 Ill.Dec. 905 (1st Dist. 1983). In People ex rel. Graf v.

Village of Lake Bluff, 321 Ill.App.3d 897, 748 N.E.2d 801, 811, 255 Ill.Dec. 97 (2d Dist. 2001),

rev’d on other grounds, 206 Ill.2d 541 (2003), the court held that a board member’s telephonic

attendance at a board meeting did not violate the Open Meetings Act but stated that even if this

attendance had violated the Act such a de minimis violation of the Act would not support the

“extreme remedy” of nullification of the board’s action. Moreover, a public body’s private

deliberations in violation of the Open Meetings Act do not necessarily render the proceedings null

and void. Likewise, in Powell v. East St. Louis Electoral Board, 337 Ill.App.3d 334, 785 N.E.2d

1014, 1017, 271 Ill.Dec. 820 (5th Dist. 2003), the court held that even if the election board

deliberated in private to remove the plaintiffs’ names from the primary ballot in violation of the

Open Meetings Act, this violation did not necessarily render the electoral board’s proceedings

null and void.

At least one court has ruled that the Open Meetings Act does not offer any remedy or even

provide a cause of action against a member of a public body who discloses information discussed

or revealed during a closed session, thus making punishment of these actions by governing bodies

difficult, although not impossible. Swanson v. Board of Police Commissioners of Village of Lake

in the Hills, 197 Ill.App.3d 592, 555 N.E.2d 35, 144 Ill.Dec. 138 (2d Dist. 1990). See also Op.

Att’y Gen. (Ill.) No. 91-001, in which the Attorney General concluded that a public body has no

recourse under either the Open Meetings Act or the Illinois Constitution against its members who

violate rules of confidentiality by disclosing information from executive sessions. If this happens

and the municipality victimized by the leak is confident that sufficient evidence is available, it

should either consider an application to the local state’s attorney for a malfeasance prosecution or

pursue a civil lawsuit seeking an injunction against the member who is leaking confidential

information.

In addition to any civil action taken, the state’s attorney can bring criminal proceedings

against any person who violates any of the provisions of the Open Meetings Act. Upon

conviction, a person is guilty of a Class C misdemeanor, for which, under the Unified Code of

Corrections, 730 ILCS 5/1-1-1, et seq., he or she may be fined up to $1,500 and sentenced to

imprisonment for up to 30 days. 5 ILCS 120/4; 730 ILCS 5/5-8-3(a)(3), 5/5-9-1(a)(3).

h. [3.20] Interpretations of the Open Meetings Act

A number of courts and the Illinois Attorney General have interpreted the provisions of the

Open Meetings Act, usually revolving around the questions of what constitutes a “public body”

and precisely what qualifies as a meeting, as well as the propriety of a given closed session and

the penalties to be imposed for violations.

The courts have held, for example, that meetings or conferences of department heads or

employees who seek to improve their performance are not subject to the provisions of the Act.

People ex rel. Cooper v. Carlson, 28 Ill.App.3d 569, 328 N.E.2d 675 (2d Dist. 1975). See also

Pope v. Parkinson, 48 Ill.App.3d 797, 363 N.E.2d 438, 6 Ill.Dec. 756 (4th Dist. 1977). In

addition, some informal or advisory committees of admittedly public entities are not subject to

the provisions of the Act. Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism

& Drug Dependence, 64 Ill.App.3d 94, 380 N.E.2d 1192, 21 Ill.Dec. 16 (2d Dist. 1978). In Board

of Regents of Regency University System v. Reynard, 292 Ill.App.3d 968, 686 N.E.2d 1222, 227

Ill.Dec. 66 (4th Dist. 1997), however, Illinois State University lost its battle with the state’s

attorney regarding the status of its athletic council. The university argued that the athletic council

served solely as an advisory body to its president on issues relating to intercollegiate programs

and, as such, had no authority to make decisions. The university argued that the council, as a

purely advisory body with no decision-making capacity, should not be regarded as a public body.

Nevertheless, the court sided with the state’s attorney, ruling that the council was not an ad hoc

committee appointed by the president but instead was a part of the school’s formal organizational

structure, created pursuant to the by-laws of the university’s Academic Senate. As a subsidiary

public body, it is therefore governed by and subject to the Open Meetings Act. See also Op. Atty.

Gen. (Ill.) S-917 (1975), cited by the Reynard court as an example of an instance in which

another university advisory body was deemed a public body.

The Illinois Attorney General also has found that the governing or advisory board of an

intergovernmental agency was subject to the Act. Op. Att’y Gen. (Ill.) No. 87-001. This

interpretation should not be surprising when one recognizes that most of these agencies are

considered municipal corporations.

Caution in this area is warranted, because even an informal gathering of public officials may

constitute a meeting under the Act. See §3.13 above. This status prohibits these officials from

privately deliberating or acting on, however informally, public business that could eventually

come up for decision before the full body. “In private” does not necessarily mean “in hiding” and

can implicate circumstances in which the public has not been notified of the gathering, even

though it is held in a public place. In People ex rel. Difanis v. Barr, 83 Ill.2d 191, 414 N.E.2d

731, 46 Ill.Dec. 678 (1980), the Illinois Supreme Court found that the Open Meetings Act had

been violated when nine members of a city council, which constituted a majority of a quorum of

the city council, privately met during a political caucus, where they veered off topic and

proceeded to discuss, in addition to political matters, four of the five matters on the city council

agenda for that evening. This gathering was deemed a public meeting even though no votes were

taken at the informal meeting. In the process of finding a violation, the court also reaffirmed that

a true political caucus is beyond the scope of the Open Meetings Act. The Supreme Court in Barr

also rejected arguments that the Open Meetings Act violated the public officials’ First

Amendment free speech rights and further determined that the officials were not denied due

process under either the federal or state constitutions.

Similarly to the Barr court’s observation that a pure political caucus is unaffected by the

Open Meetings Act, the Northern District has held that a political rally in which school board

members participated did not constitute a meeting under the Open Meetings Act when (1) the

participants’ discussions were exclusively political in nature, (2) the board members did not

consider any reasons for or against any particular course of action and neither were they privy to

any dissemination of facts in preparation for a decision, and (3) the participants did not attempt to

reach an agreement on a specific item of school district business. Nabhani v. Coglianese, 552

F.Supp. 657 (N.D.Ill. 1982).

In Op. Att’y Gen. (Ill.) No. 95-004, the Attorney General considered the validity of an

informational meeting attended by members of two county boards who met to discuss continued

local control of schools as a result of legislation consolidating certain educational service regions.

The Attorney General first noted that the mere fact that a majority of a quorum participated in a

presentation on legislative developments in an area of public concern within the scope of the

public body’s power to act was not, in and of itself, sufficient to invoke the requirements of the

Open Meetings Act. The Attorney General ultimately concluded, however, that the joint meeting

did constitute a meeting of each county board subject to the Act because the evidence indicated

that the purpose of the meeting was to discuss public business and, moreover, public business

was, in fact, discussed. Even though the meeting was deemed illegal, the Attorney General further

determined that the joint resolution for consolidation — the final action that was produced not by

or at the illegal meeting, but rather in a subsequent open meeting — was not void or voidable.

First, the then 45-day (now 60-day) time limit contained in §3(a) of the Open Meetings Act (5

ILCS 120/3(a)) had lapsed. Second, legislative debates over the Open Meetings Act show a

legislative intent to restrict the courts to invalidating the final actions of a public body only when

these actions are taken in closed session. No final action was taken at the illegal meeting and

therefore, the joint resolution that was subsequently adopted could not be invalidated.

In Op. Att’y Gen. (Ill.) No. 96-005, the Attorney General concluded that although a group of

officials could have discussed the appointment of village officials for the next term in executive

session, their discussion of the subject nevertheless violated the Open Meetings Act. The

gathering was attended by the reelected mayor, a reelected commissioner, and three newly

elected, but unsworn, commissioners of a village operating under the commission form of

government. These individuals met without first giving the notice required under the Act or

otherwise complying with the Act. Because two of the five individuals were public officials and

constituted a majority of a quorum of the five-member council, the gathering was subject to the

Act. Thus, even though the topic could have been legally discussed in private pursuant to a

properly noticed and convened meeting, any discussion undertaken by these five individuals was

illegal in light of their failure to comply with the procedural framework delineated in the Act.

The question as to what groups of individuals constitute a public body continues to be of

interest, especially to committees and subcommittees that perform quasi-judicial functions. In

Op. Att’y Gen. (Ill.) No. 96-009, the Attorney General determined that public aid committees that

conduct general assistance appeal hearings are governed by the Open Meetings Act. The Attorney

General reached this conclusion after analyzing the committees’ creation, structure, composition,

and function and comparing them to judicial and quasi-judicial entities. The Attorney General

found that the public aid committees do not act as judicial bodies but instead simply remake the

“administrative decision of how much aid, if any, a person should receive.” Consequently, the

individuals who serve on those committees are administrative and not judicial officers. The

Attorney General further concluded that the Open Meetings Act’s preference for open hearings,

together with certain language in the Illinois Public Aid Code, 305 ILCS 5/1-1, et seq., require

hearings conducted by public aid committees to be open to the public.

In Op. Att’y Gen. (Ill.) No. 83-004, the Attorney General stated that when certain public

bodies are acting in a quasi-judicial capacity and their decisions are subject to review by another

administrative tribunal or a court, they are required to deliberate publicly. This would apply, for

example, to the deliberations of a zoning board of appeals that by ordinance was given the final

decision as to whether a variation in the zoning ordinance would be granted. The authors do not

believe, however, that the law is settled on this question. See, e.g., Ealey v. Board of Fire &

Police Commissioners of City of Salem, 188 Ill.App.3d 111, 544 N.E.2d 12, 135 Ill.Dec. 655 (5th

Dist. 1989) (board of fire and police commissioners allowed to hold closed hearing to decide

whether to terminate employee). The amendment by P.A. 89-86 (eff. June 30, 1995) to the

definition of a “quasi-adjudicative body” in §2(d) of the Open Meetings Act (5 ILCS 120/2(d))

singled out local electoral boards, requiring these boards to conduct their deliberations on ballot

challenges in the open, while other quasi-adjudicative bodies are statutorily allowed to hold

closed meetings when considering evidence or testimony presented in hearings, as long as they

issue a written decision that is open to the public (5 ILCS 120/2(c)(4)).

Even informal social gatherings can occasion a violation of the Open Meetings Act, as long

as a majority of a quorum of public officials gathers to discuss public business. Ultimately, the

inquiry is very fact-intensive. Some relief from the Act was afforded by the amendments of P.A.

82-378 (eff. Jan. 1, 1982), which narrowed the definition of a “meeting” subject to the Act to

apply only to situations in which the members of a public body have some precognition of or

intent to discuss public business before gathering. 5 ILCS 120/1.02 (“ ‘Meeting’ means any

gathering of a majority of a quorum of the members of a public body held for the purpose of

discussing public business.” [Emphasis added.]).

Under the Open Meetings Act, a “meeting” is defined in relevant part as “any gathering,”

presumably regardless of form as long as it satisfies the Act’s other requirements. Id. In two cases

involving teleconference meetings, the courts presumed that the discussions were governed by the

Act. See Scott v. Illinois State Police Merit Board, 222 Ill.App.3d 496, 584 N.E.2d 199, 165

Ill.Dec. 20 (1st Dist. 1991); Freedom Oil Co. v. Illinois Pollution Control Board, 275 Ill.App.3d

508, 655 N.E.2d 1184, 211 Ill.Dec. 801 (4th Dist. 1995) (holding that meetings may be held via

conference call without running afoul of Act, as long as conference call otherwise complies with

all of Act’s procedures).

In Freedom Oil, the plaintiff challenged the validity of a revised order issued by the Illinois

Pollution Control Board during a meeting via teleconference. The revised order increased a

previously imposed penalty against the plaintiff for failing to investigate and report leaking

underground storage tanks. Because there is no statutory prohibition against teleconferencing, the

gathering was properly noticed, and the public had the right to attend the physical location where

several members were present (and from which location the board members attending via

teleconference could be heard) and hear any deliberations, the court found the meeting to be valid

and subject to the Act. Therefore, the contested order, representing the final decision emanating

from the meeting, was proper. Since the plaintiff was a serious polluter and none of its

representatives attended the meeting, Freedom Oil might be limited to its facts. Similarly, in

Op. Att’y Gen. (Ill.) No. 82-041, a telephone conference call was deemed a proper way for the

State Board of Elections to conduct its official business.

As of this writing, S.B. No. 585, which would expand the Open Meetings Act’s definition of

“meeting” (5 ILCS 120/1.02) to include certain electronic assemblages, had passed both

chambers of the General Assembly and was awaiting the Governor’s signature. S.B. No. 585

would amend the Open Meetings Act to apply principles of governmental transparency to

“contemporaneous interactive communication” between public officials, including video and

audio conferences, teleconferences, e-mail, chat rooms, and instant messaging. The same criteria

apply to the broadened definition of “meeting,” namely that a majority of a quorum must be

participating in the interactive communication and the discussion must be intended to discuss

public business. A related change ushered in by S.B. No. 585 would permit public officials to

attend and participate in both open and closed public meetings electronically from remote

locations via video or audio conference in the event of illness, infirmity, business, or emergency

(critically, a simple vacation or winter of semi-retirement does not constitute a permissible basis

for electronic participation) when a majority of a quorum is physically present at the meeting and

insofar as the official provides proper advance notice to the body’s secretary or clerk, stating the

reason for not physically attending and garnering the permission of a majority of the physically

present attendees, who vote on whether to permit the absent member to “attend” the meeting and

participate in it by conferencing into the meeting. In order to do implement this impending

change, local government units must enact an appropriate ordinance.

While there is a dearth of case law or authoritative commentary on the subject, members of

legislative bodies ought to be wary of discussions via electronic media with a majority of a

quorum of fellow members of the legislative body, as such discussions will be subsumed under

the Act’s definition of a “meeting” upon the Governor’s signature of S.B. 585. Consequently,

caution and discretion are in order when a majority of a quorum are discussing public business —

regardless of medium or forum — especially in light of the criminal penalties that can ensue.

As noted in §3.18 above, the Illinois courts have construed the exceptions to the Open

Meetings Act quite narrowly so as to ensure that these exceptions cannot be used to obviate the

general policy of the Act. People ex rel. Ryan v. Village of Villa Park, 212 Ill.App.3d 187, 570

N.E.2d 882, 156 Ill.Dec. 406 (2d Dist. 1991); Illinois News Broadcasters Ass’n v. City of

Springfield, 22 Ill.App.3d 226, 317 N.E.2d 288 (5th Dist. 1974). Nevertheless, even before the

amendment of §2 of the Open Meetings Act by P.A. 82-378, the courts had authorized municipal

officials to confer privately with their attorneys on prospective litigation by finding that these

communications are simply not always governed by the Act. People ex rel. Hopf v. Barger, 30

Ill.App.3d 525, 332 N.E.2d 649 (2d Dist. 1975). The authors believe that the traditional attorneyclient

right to confer in private has not been affected by the Act.

i. [3.21] Consequences of Violating the Open Meetings Act

The courts have generally been reluctant to invalidate actions taken in violation of the Open

Meetings Act. Since the amendment of the Open Meetings Act by P.A. 82-378 (eff. Jan. 1, 1982),

however, courts clearly possess the authority to void final actions voted on in illegally closed

sessions. 5 ILCS 120/3(c). At least one appellate court has stated in dicta that merely technical

violations of the Act, such as a violation of the provisions pertaining to providing notice of

meetings, will not invalidate an action by the public body. Williamson v. Doyle, 112 Ill.App.3d

293, 445 N.E.2d 385, 67 Ill.Dec. 905 (1st Dist. 1983). Moreover, in WSDR, Inc. v. Ogle County,

100 Ill.App.3d 1008, 427 N.E.2d 603, 56 Ill.Dec. 408 (2d Dist. 1981), the appellate court refused

to invalidate actions taken pursuant to a secret ballot cast at an open meeting, declaring in the

process that the objectives of the Act would best be met by disclosing the votes cast. In Lindsey v.

Board of Education of City of Chicago, 127 Ill.App.3d 413, 468 N.E.2d 1019, 82 Ill.Dec. 365 (1st

Dist. 1984), the appellate court held that a prior violation of the Act does not prevent the public

body from subsequently ratifying its action by validly voting on the same matter at a properly

noticed meeting. See also Argo High School Council of Local 571 v. Argo Community High

School District 217, 163 Ill.App.3d 578, 516 N.E.2d 834, 114 Ill.Dec. 679 (1st Dist. 1987);

Chicago School Reform Board of Trustees v. Martin, 309 Ill.App.3d 924, 723 N.E.2d 731, 243

Ill.Dec. 428 (1st Dist. 1999) (court, though finding no violation, nevertheless observed that

nullification of action taken at open meeting challenged as improper by plaintiff was too extreme

remedy and not supported by Act).

In Board of Education of Community Unit School District No. 337, Hancock, McDonough,

Adams & Schuyler Counties, Illinois v. Regional Board of School Trustees of

Hancock/McDonough Counties, Illinois, 269 Ill.App.3d 1020, 647 N.E.2d 1019, 207 Ill.Dec. 526

(3d Dist. 1995), the appellate court found that a regional school board violated the Act by

deliberating in closed session after conducting open, public hearings on a petition for detachment

and annexation. Nevertheless, the court ruled that the violation did not render the proceedings or

the final vote granting the petition null and void. The fact that the final vote was made in an open

session, coupled with the fact that the record of the hearing was extensive, may have tipped the

scales in favor of allowing the action to stand.

Despite the judicial reluctance to void a procedurally deficient act by a public body, it may be

appropriate for the body itself to declare null and void a final action taken at a closed meeting as

permitted under the Act. Nullification of a public body’s action by a court for a violation of the

Open Meetings Act is an extreme remedy that is nonetheless a discretionary tool for the court’s

use. People ex rel. Graf v. Village of Lake Bluff, 321 Ill.App.3d 897, 748 N.E.2d 801, 811, 255

Ill.Dec. 97 (2d Dist. 2001), rev’d on other grounds, 206 Ill.2d 541 (2003). See also Powell v. East

St. Louis Electoral Board, 337 Ill.App.3d 334, 785 N.E.2d. 1014, 1017, 271 Ill.Dec. 820 (5th

Dist. 2003).

While courts have generally exercised restraint when confronted with the specter of a public

body acting improperly in closed session, the same courts may well nullify a public body’s

actions if the public body does not provide sufficient advance notice to the public of its intent to

act on a given topic at a public meeting. In Rice v. Board of Trustees of Adams County, Illinois,

326 Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill.Dec. 278 (4th Dist. 2002), the plaintiff sought to

invalidate a resolution adopted by the defendant board of trustees that provided alternative

benefits to elected county officers on the basis that the board gave insufficient notice under the

Open Meetings Act. The board of trustees did not specify in its agenda that it would be acting on

the resolution and instead deliberated and passed the resolution under the general topic “new

business.” The court held that this generic heading did not provide sufficient advance notice to

the public of the board’s proposed action. The court therefore nullified the resolution and, in so

doing, rejected the county board’s argument that the Open Meetings Act authorizes public bodies

to take action on items not specifically set forth in their agendas. The court concluded that the

Open Meetings Act authorizes public bodies to deliberate and discuss items omitted from their

agendas but precludes these public bodies from taking final action on these matters.

Sanctions against a violator of the Act would seem superfluous when the entity has already

cured the defect by ratifying its prior decision emanating from an illegally closed session in a

proper open public meeting. In Board of Education School District No. 67 v. Sikorski, 214

Ill.App.3d 945, 574 N.E.2d 736, 158 Ill.Dec. 623 (1st Dist. 1991), the court held that the school

district violated the Open Meetings Act when it voted during an executive session to reschedule

the public sale date for a piece of school property. Under the applicable provision of the Act in

effect at the time (Ill.Rev.Stat. (1989), c. 102, ¶42(c)), the only topic related to the sale of school

property that could be addressed at a closed meeting was the selling price.

The issue was inspired by a citizen who argued that the real estate sales contract was null and

void because it had resulted from an illegal act committed by the board. The court found that the

school board did indeed violate the Open Meetings Act by rescheduling the public sale date at a

closed session but that it subsequently cured the violation by ratifying its decision at an open

meeting. Thus, the contract and sale were deemed valid.

Sikorski should be noted not only for this holding but also for its rejection of the school

board’s own creative efforts to get out of the real estate contract following an election that

resulted in a change in the board’s composition. The court determined that the board was

estopped from asserting its own violation as grounds for invalidating the contract. 574 N.E.2d at

742.

The Second District Appellate Court has held that a failure to comply with the provisions of

the Open Meetings Act did not invalidate the decision of a park district board to annex land (In re

Organization of Byron Park District, 67 Ill.App.3d 61, 385 N.E.2d 67, 24 Ill.Dec. 300 (2d Dist.

1978)), and neither did it nullify the decision of a county board of school trustees to grant

annexation petitions (Board of Education of Community Unit School District No. 300, Kane,

Cook, McHenry & Lake Counties v. County Board of School Trustees of Kane County, 60

Ill.App.3d 415, 376 N.E.2d 1054, 17 Ill.Dec. 725 (2d Dist. 1978)).

One appellate court has also decided that the issue of whether the Open Meetings Act had

been violated when a developer had private meetings with village officials was made moot by the

fact that the proposed development was subsequently let for public bid. Lurie v. Village of Skokie,

64 Ill.App.3d 217, 380 N.E.2d 1120, 20 Ill.Dec. 911 (1st Dist. 1978). In People ex rel. Hartigan

v. Illinois Commerce Commission, 131 Ill.App.3d 376, 475 N.E.2d 635, 86 Ill.Dec. 421 (4th Dist.

1985), a suit challenging an Illinois Commerce Commission decision not to conduct formal

proceedings regarding the economic reasonableness of completing a nuclear power station was

found to be moot when the Commission decided to reverse itself and hold a public hearing on the

matter.

The reluctance of the appellate courts to invalidate actions taken in violation of the Open

Meetings Act should not be construed as a license to take the Act’s requirements lightly. Public

officials should keep in mind that persons violating the Open Meetings Act are subject to criminal

prosecution and that, upon a finding that a violation has been committed, a fine or jail term or

both may ensue for the offender. Indeed, at least one appellate court has refused to invalidate a

decision when deliberations had taken place in a private session, stating that it was not certain

that the actions in question violated the Act and, if these violations did take place, the remedy

would be through mandamus or criminal penalties. Community Unit School District No. 300,

supra.

Unless a closed session to be held at a later date is announced at an open meeting, it must be

held in conjunction with a properly noticed regular or special meeting. A motion calling the

closed session must be made that states in general terms (but must be specific enough to clearly

invoke one of the statutory exemptions) the purpose for which the session is being called, such as

“pending litigation,” “collective negotiations,” and the like. When a list of employment matters is

the subject of the closed session, the motion should specify the action. “Personnel” is too broad

since it could include topics not permitted in closed session. Instead, for example, “hiring” or

“dismissal” of an employee is proper.

As noted in §3.16 above, minutes must be taken during closed session meetings. The minutes

need state only who was present, what was discussed, whether votes were taken on those items,

such as land acquisition, on which preliminary actions can be taken in closed session, and the

time that the meeting began and ended. If litigation is being discussed, the minutes must state the

matter under discussion. All minutes should contain a general statement of the matters discussed

but need not state the views taken by each participant. The Open Meetings Act requires that the

corporate authorities shall periodically, but no less than semiannually, meet to review minutes of

all closed sessions. 5 ILCS 120/2.06(d). At these meetings, a determination must be made and

reported in an open session that (1) the need for confidentiality still exists regarding all or part of

those minutes or (2) that the minutes or portions thereof no longer require confidential treatment

and are available for public inspection. Id.

A question that frequently arises is whether members of the corporate authorities can exclude

another member from an executive session or refuse to share information made available to other

members. When a statute, an ordinance, or case law requires the sharing of this information, it

must be provided even if it is expected or feared that the person receiving the information will

improperly use it or disclose it to others. Wayne Township Board of Auditors, DuPage County v.

Vogel, 68 Ill.App.3d 714, 386 N.E.2d 91, 24 Ill.Dec. 887 (2d Dist. 1979). Neither can such a

person be excluded from an executive session without first obtaining a court order. A

municipality faced with this problem should begin by reporting the matter to the local state’s

attorney. A violation of the sanctity of an executive session may constitute official misconduct

under the Illinois Municipal Code or Criminal Code of 1961, 720 ILCS 5/1-1, et seq. Further, a

civil lawsuit might also be filed, seeking to enjoin the person from leaking confidential material

under penalty of court sanctions for noncompliance.

j. [3.22] Public Comment

The fact that the meetings are public does not mean that the public can participate in the

discussions of the council, board, or commission, but only that they may attend and witness the

proceedings. People v. Thompson, 56 Ill.App.3d 557, 372 N.E.2d 117, 14 Ill.Dec. 312 (3d Dist.

1978). Participation by a member of the public requires council or board consent. However, a

municipal employee cannot ordinarily be discharged for criticism of the municipality and its

officers expressed during or after a council meeting. Hasenstab v. Board of Fire & Police

Commissioners of City of Belleville, 71 Ill.App.3d 244, 389 N.E.2d 588, 27 Ill.Dec. 524 (5th Dist.

1979); Shewmake v. Board of Fire & Police Commissioners of Village of East Alton, 71

Ill.App.3d 1052, 390 N.E.2d 536, 28 Ill.Dec. 369 (5th Dist. 1979). Many councils and boards set

aside a portion of their meeting to allow citizens to comment on matters being considered by the

legislative body or to voice their interest and concern about other topics of municipal interest.

It is advisable for governmental bodies to adopt rules concerning public participation. Many

communities have enacted ordinances making it a violation to disrupt any lawful assemblage, and

such a prohibition would apply to council meetings. Cf. City of Champaign v. Williams, 13

Ill.App.3d 418, 300 N.E.2d 27 (4th Dist. 1973). Care should be taken, however, in imposing and

enforcing these rules and removing unruly citizens. A videotape of the actions might be helpful in

a prosecution or as a defense in a civil rights suit. In Hansen v. Bennett, 948 F.2d 397 (7th Cir.

1991), legislative and qualified immunities failed to protect the mayor from charges of violating a

citizen’s First Amendment rights when he removed from a public meeting a person who was

allegedly disruptive.

Public meetings must be distinguished from public hearings. While the public has no specific

right to address a governmental body at a public meeting, the rule is very different regarding

public hearings. Public hearings may be required by statute or simply established by a

governmental body for the purpose of specifically allowing public comment about an issue of

interest. Many public hearings are associated with applications for zoning relief. In such a case,

the Illinois Municipal Code specifically requires that there be a hearing before some commission

or committee of the governmental body. 65 ILCS 5/11-13-6, 5/11-13-7, 5/11-13-7a. When the

law requires that a public hearing be held, it is not adequate for the members of the public to be

permitted only to give their views about an applicant’s request. Instead, members of the public

who have some specific interest in the matter, and probably all members of the public, are entitled

to a reasonable opportunity to express their views, and to cross-examine the statements made by

others. People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 781 N.E.2d 223, 269 Ill.Dec. 426

(2002). In Klaeren, the Supreme Court invalidated a decision by a village to enter into an

annexation and zoning agreement in a matter of some controversy in the community when it was

found that the public had not been given an adequate opportunity to fully participate in the public

hearing. Klaeren makes it clear that the decisions of a governmental body will not be overturned

on technicalities if the governmental body either establishes or follows reasonable rules that give

the public a fair opportunity for a hearing. Nonetheless, when the public is not given a meaningful

opportunity to comment and question, the governmental body will, in effect, lose its jurisdiction

to act on the matter. Klaeren, long under fire from governmental bodies faced with spiraling costs

and plunging reserves of free time stemming from hosting cumbersome court-mandated minitrials

in the special use context, complete with court reporters, expert witnesses, mountains of

evidence, and exhaustive cross-examination, finally met its demise when P.A. 94-1027 was

signed into law on July 14, 2006. Effective immediately, the new legislation, codified at 65 ILCS

5/11-13-25 and in parallel provisions in the Township and Counties Codes, still calls for due

process in the zoning relief context but restores all zoning decisions, including special uses, to the

legislative realm, subject to only de novo judicial review. As a practical matter, armed with the

ability to introduce new evidence in a subsequent court challenge, governmental bodies

endeavoring to make a special use or any other zoning decision may now relax certain exhaustive

formalities at the public hearing stage. Certainly, however, Klaeren’s earlier cross-examination

mandate in the special use context appears intact and ought to be heeded, though the public

participation may be modestly tailored within reasonable parameters as a given situation dictates.

Since the public is not given any specific right to speak at public meetings, there is often a

complaint that the audience cannot follow what is taking place. To combat this problem, the Open

Meetings Act requires that all final action taken at an open session must be preceded by a public

recital of the nature of the matter being considered and any other information that would inform

the public of the business being conducted. 5 ILCS 120/2(e).

3. [3.23] Notice of Public Meetings

Under 5 ILCS 120/2.02(a), notice of the schedule of regular meetings must be given at the

beginning of each calendar or fiscal year and must state the regular dates, times, and places of

these meetings. An agenda for each regular meeting must be posted at the principal office of the

public body and at the location where the meeting is to be held at least 48 hours in advance of

holding the meeting, although items not specifically set forth in the agenda may also be

considered but not formally acted on. Public notice of any special meeting except a meeting held

in the event of a bona fide emergency, a rescheduled meeting, or a reconvened meeting must be

given 48 hours before the meeting, and this notice must include the agenda. However, the validity

of any action taken by a public body that is “germane to a subject on the agenda” will not be

affected by other mistakes or omissions in the agenda. Id. Courts have broadly construed the issue

of whether a matter discussed at a special meeting is germane to an item listed on the agenda. See

Argo High School Council of Local 571 v. Argo Community High School District 217, 163

Ill.App.3d 578, 516 N.E.2d 834, 114 Ill.Dec. 679 (1st Dist. 1987); Gosnell v. Hogan, 179

Ill.App.3d 161, 534 N.E.2d 434, 128 Ill.Dec. 252 (5th Dist. 1989). While a matter may be

discussed even though it is not specifically on the agenda as long as it is germane to a subject

appearing on the agenda, the court in Rice v. Board of Trustees of Adams County, Illinois, 326

Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill.Dec. 278 (4th Dist. 2002), held that a municipality

cannot act on such a new subject even at a regular meeting. No notice need be given of a

reconvened meeting if it is open to the public and (a) it is to reconvene within 24 hours of the

original meeting or (b) an announcement of the time and place of the reconvened meeting was

made at the original meeting and there is no change in the agenda. 5 ILCS 120/2.02(a).

Notice of a bona fide emergency meeting must be given as soon as practicable, but any news

medium that has filed an annual request for notice must be given notice before an emergency

meeting is held. Id.

Under 5 ILCS 120/2.02(b), unless otherwise specified, public notice shall be given by posting

a copy of the notice at the principal office of the body holding the meeting or, if no such office

exists, at the building in which the meeting is to be held. The body must supply copies of the

notice of its regular meetings and copies of notices of any special, emergency, rescheduled, or

reconvened meetings to any news medium that has filed an annual request for such notices. Any

such news medium must also be given the same notice of all special, rescheduled, or reconvened

meetings in the same manner as members of the body if the news medium has given the public

body an address or telephone number within the territorial jurisdiction of the public body at

which the notice may be given. Id. Thus, under this provision, telephone notice is sufficient, but it

should be followed up with written notice to any media representative that cannot be reached by

phone.

Under 5 ILCS 120/2.03, if a change is made in the monthly dates of regular meetings, notice

of the change must be published in a newspaper of general circulation in the area in which the

body functions at least ten days before the first new meeting date. In the case of bodies of local

governmental units with a population of less than 500 in which no newspaper is published, the ten

days’ notice may be given by posting in three prominent places within the governmental unit. In

either case, this notice also must be posted at the principal office of the public body or, if no such

office exists, at the building in which the meeting is to be held and supplied to any news medium

that has filed an annual request for notice under §2.02(b). Thus, for example, if a municipal

ordinance providing for meetings on the first and third Wednesdays of each month is amended to

provide for meetings on the second and fourth Wednesdays, newspaper notice is required. If only

the date of a single meeting or a few meetings is changed, posting and notice to the requesting

media are sufficient.

As noted in §3.15 above, the courts traditionally have held that publication of notice of public

meetings by newspaper is sufficient to inform the public, but when citizens may be deprived of

property by action taken at such a meeting, notice by publication may not be adequate, especially

when there is another factor possibly affecting the adequacy of the notice, such as when the

persons to whom the notice is directed do not speak the language in which the notice is published.

See Jimenez v. Hidalgo County Water Improvement District No. 2, 496 F.2d 113 (5th Cir. 1974).

In American Oil Corp. v. City of Chicago, 29 Ill.App.3d 988, 331 N.E.2d 67 (1st Dist. 1975), the

court held that notice by publication in a newspaper of a public hearing on a zoning amendment

was not sufficient when the zoning change was not requested by the owner and no personal notice

was given the property owner himself.

4. [3.24] Records of Council or Board Meetings

The courts have said that a corporate body speaks through its records. National Bank of

Decatur v. Board of Education of Decatur School District, 205 Ill.App. 57 (3d Dist. 1917).

Therefore, the records of the council must be complete, truthful, and legal. The corporate records

of a municipality must serve, both contemporaneously and for the future, as a source of

information for the council itself, the public, and parties with vested rights.

The Illinois Municipal Code provides that the municipal clerk shall attend all meetings of the

council and keep a full record of its proceedings in the journal (65 ILCS 5/3.1-35-90(a)), which is

commonly known as the “minutes” (collected in book form). The record of these proceedings

must be made available for public inspection within seven days after being approved or accepted

by the corporate authorities as the official minutes of their proceedings. Id.

65 ILCS 5/3.1-25-90(a) provides that if there is a vacancy in the office of village clerk, an

acting clerk may be appointed by the president with the advice and consent of the board of

trustees as provided by 65 ILCS 5/3.1-10-50. 65 ILCS 5/3.1-20-5 provides that if a vacancy

occurs in the office of city clerk, it shall be filled by the mayor with the advice and consent of the

city council. The person so appointed shall hold office for the unexpired term of the officer

elected. Id.

If the clerk is absent for a particular meeting, the deputy clerk may prepare the minutes, or the

council may select a recording secretary. 65 ILCS 5/3.1-35-95. The minutes of meetings open to

the public must be available for public inspection within seven days of their approval by the

public body. 5 ILCS 120/2.06(b). The failure to record roll call votes in minutes when these votes

are required for passage of matters in a meeting can lead to an otherwise properly taken action

being declared void by a court. See Village of Mettawa v. Carruthers, 175 Ill.App.3d 772, 530

N.E.2d 537, 125 Ill.Dec. 379 (2d Dist. 1988). Although the Open Meetings Act does not specify a

time within which the public body must consider and approve its minutes, it is probable that a

court would require this action within a reasonable time after the meeting in question.

The minutes should generally consist of a record of what took place and nothing else. At a

minimum, the Open Meetings Act requires the minutes to contain (a) the date, time, and place of

the meeting; (b) the members of the public body recorded as either absent or present; and (c) a

summary of the discussion of all matters proposed, deliberated, or decided and a record of any

votes taken. 5 ILCS 120/2.06(a). Speeches, discussions, or statements should not be copied into

the minutes except when the council rules provide for statements explaining votes, when the

council may so order in exceptional cases, or when this information is necessary to understand

what took place at the meeting. Full texts of communications, reports, etc., should not be included

except in unusual instances when the council instructs the clerk to include them. Although the

minutes should be kept as brief as possible, the clerk must always keep in mind that matters

discussed by the council should not be recorded in the minutes in a shorthand manner. Notations

such as “council discussed Johnson property” or “council discussed Mr. Baker’s bill” should be

avoided. If the matter is of sufficient importance to be included in the minutes, the location of the

property or the reason for the bill should be set out in full.

The minutes should be prepared so that someone reading them ten years hence would

understand the substance of the matters discussed and the action taken on them. Motions should

be included in full. Other items such as ordinances should appear with their full descriptive title.

The journal also should show all votes and roll calls. It should not be a verbatim account of

everything said during the meetings, but rather only an adequate record of official action. The

corporate authorities, however, have the legal right to cause more detailed minutes to be prepared

and approved. The journal should carefully specify the date and place of meeting. The use of

proper terminology is an important factor in the clarity of the minutes. All minutes are

“approved,” not “accepted.” Motions are to “pass” ordinances, not to “adopt” or “approve” them.

The mayor “approves” ordinances by signing them. Expenditures are “authorized.” Voting is

accomplished by “voice vote” or “roll call vote.”

The Open Meetings Act requires municipalities to keep minutes and transcripts or audio or

video recordings of closed sessions. Id. These materials should be kept in a secure place and need

not be disclosed to the public without a court order requiring production or until the council has

decided they need no longer be kept confidential. At least twice each year, the corporate

authorities must review the minutes of prior closed meetings and release to the public those

minutes or portions thereof that no longer need be kept in confidence. 5 ILCS 120/2.06(d). Tapes

or transcripts, on the other hand, must be kept for at least 18 months and until such time as the

written minutes of the closed session are made available to the public. The recordings, until

released or destroyed when the written minutes are released, are not available to the general

public under the Freedom of Information Act (FOIA), 5 ILCS 140/1, et seq. 5 ILCS 140/7(m).

Aside from theft or accident, these tapes probably never will be generally available to the public.

This exemption from the FOIA applies to all public bodies covered by the Open Meetings Act,

including committees and commissions of governmental bodies.

The taping requirements in §2.06 of the Open Meetings Act were instituted by the

amendments of P.A. 93-523 (eff. Jan. 1, 2004) so as to have available for judicial review the

actual contents of closed meetings in order to determine whether violations of the Act took place.

Section 2.06(e) requires the preservation of evidence in the form of a video or audiotape, which,

in the event of a lawsuit, is to be made available to the court to be reviewed in camera. A recent

case, Kodish v. Oakbrook Terrace Fire Protection District, 235 F.R.D. 447 (N.D.Ill. 2006),

suggests that in the event of a lawsuit rooted in federal claims, the Open Meetings Act will not

shield closed-session tapes or transcripts from discovery. Kodish involved a terminated firefighter

for the Village of Oakbrook Terrace, who, in the midst of a §1983 federal lawsuit alleging that he

was wrongfully deprived of due process rights when he was fired, made a discovery request for

the audiotape recording of a closed meeting at which the decision to terminate him was made by

the village’s corporate authorities. The village rebuffed the request, claiming that the information

was protected by the employment/dismissal exception to the Open Meetings Act. The federal

district court noted that under the Federal Rules of Civil Procedure, parties may obtain any

relevant discovery that is not privileged. In examining whether the audiotape was shielded from

discovery by virtue of a federally recognized privilege, the court ruled that minutes, transcripts, or

tapes from closed-session meetings were not shielded from discovery under federal law, then

declined to expand the federal common law of privileges to encompass the asserted state

privilege. In so doing, the court conceded that §2.06(e) of the Open Meetings Act states that

verbatim executive session recordings are not “subject to discovery in any judicial proceeding

other than one brought to enforce this Act,” but declined to extend federal common law to

encompass privileges rooted in exceptions to the Open Meetings Act. In sum, therefore,

transcripts or recordings from closed sessions are generally not subject to discovery in an action

rooted in state law, but are susceptible to discovery requests in federal law actions. Portions of the

executive session audiotape containing the advice of legal counsel, however, were deemed

privileged under the attorney-client privilege.

Questions often arise regarding the duty of municipal clerks as keepers of the accurate

records of the municipality. Although in Op. Att’y Gen. (Ill.) No. 00-004, the Attorney General

interpreted the statutory provisions in the Counties Code, 55 ILCS 5/1-1001, et seq., delineating

the duties of the county clerk, it is helpful on this issue. In the opinion, the Attorney General

concluded that the county clerk is mandated by the Counties Code to keep an accurate record of

the proceedings of the county board (55 ILCS 5/3-2013); thus, the board cannot alter or interfere

with this mandate. The board also is without power to exclude the clerk from a meeting of the

board that is closed to the public under the Open Meetings Act. This opinion has general

applicability to municipal clerks, given the similarity of the statutory language in the Counties

Code and the Illinois Municipal Code regarding the clerk’s duties.

The minutes of a closed session are helpful in at least two ways. First, like any other set of

minutes, they confirm the general nature of the discussion that took place at the closed session,

which can be useful for the participants in recalling the prior deliberations on a particular subject.

Second, the minutes can be useful in refuting a charge that a closed session was called for an

improper purpose. Perhaps the fact that minutes are kept might even reduce the chance that an

improper matter would be discussed. The transcript or tapes are for use only if a state lawsuit is

brought alleging illegalities in the meeting. The materials are more susceptible to discovery in a

federal lawsuit. A judge will review them and decide if they should be turned over to the plaintiff.

It is useful, especially if an audio tape is used, for participants in the meeting to identify

themselves. The clerk is required by the Illinois Municipal Code to attend all meetings of the

corporate authorities (65 ILCS 5/3.1-35-90(a)), which includes closed or executive sessions. In

the clerk’s absence, the deputy clerk or any person selected as recording secretary, including any

alderman or trustee, can be directed to take minutes of the meeting.

Potentially affecting interpretations of both the Open Meetings Act and the FOIA, and also

concerning public bodies even though it was entered as a Rule 23 opinion, the Fifth District

Appellate Court, in Despain v. City of Collinsville, 312 Ill.App.3d 1229, 769 N.E.2d 583, 264

Ill.Dec. 81 (5th Dist. 2000), found that the audiotapes used by the deputy clerk as an aid in the

preparation of city council meeting minutes were public records under the FOIA. The court cited

no earlier cases but simply proclaimed that tapes and notes of meetings, even before the minutes

are officially approved by the public body, are clearly “writings” under §2(c) of the FOIA (5

ILCS 140/2(c)). In Despain, the notes were requested before official minutes were prepared, and

under similar circumstances, another court would likely not approve the withholding under

§7(1)(f) of the FOIA (5 ILCS 140/7(1)(f)), especially if they were the only available record of the

meeting. In Despain, because the notes and tapes were destroyed and not available to the plaintiff

and the plaintiff was forced to appeal an adverse ruling, the appellate court awarded the plaintiff

his attorneys’ fees. Despain has no precedential value, but counsel should heed the court’s

interpretation nonetheless as an indicator of potential future rulings.

Municipal efficiency can be improved if the clerk prepares an index system for corporate

minutes. One method that may be used is to assign a number to each matter considered by the

council during a fiscal year. This number appears in the margin each time the matter is discussed.

A yearly index is then prepared showing the matters that were considered and the meetings at

which they were discussed. The advent of computers and search programs also helps to

expeditiously find items discussed.

Courts are liberal in the construction and interpretation of records. However, the more nearly

complete, truthful, and legal the records of the council are, the lower are the chances of litigation

and the possibility of the council’s being required to rely on the liberality and generosity of the

courts. The records of the council are sufficient when they meet all mandatory requirements of

the Illinois Municipal Code and the Open Meetings Act and include all material and essential

facts relating to the proceedings.

a. [3.25] Publication of Proceedings and Other Documents

There is no requirement to publish the proceedings of the council except in the case of the

monthly and yearly publication requirements for statements of receipts and expenditures in

commission-form municipalities. 65 ILCS 5/4-5-16. Many municipalities publish or record

documents that are not required to be so treated by law. In some communities, the practice arose

because records tended to disappear from the city hall. A properly administered records system

can ensure the security of documents and save the municipality considerable funds now spent on

filing and publication fees.

b. [3.26] Reading of Minutes, Ordinances, and Correspondence

When the practice of having the clerk supply each council member with a printed or

typewritten copy of the minutes of the preceding council meeting is followed, the council, in its

procedural ordinance, may provide that the minutes not be read aloud prior to approval. Minutes

usually are approved only at regular meetings. Unless the procedural rules so provide, there is no

statutory requirement to have multiple readings of ordinances before their passage, and neither

must correspondence be read. In certain instances, the form of bond ordinances presented to the

council will provide in their text that the lengthy ordinances were read prior to passage. Unless a

community’s own procedural rules require the reading, this time-consuming practice can be done

away with simply by providing that the ordinance was “presented” rather than “read.”

c. [3.27] Amendment of Records

Controversies over the amendment of records have produced an unusual amount of litigation.

Inadvertencies, omissions, and errors in recording are frequent occurrences, and when a record

needs to be corrected, it is of utmost importance that the correction be made and that the records

speak the whole truth. An error or omission in recording may be excused, but failure to make a

correction cannot be justified. Hence, courts generally sustain the amendment of records to make

them speak the truth. Amendments may be allowed even after litigation has commenced. Jewell

v. Board of Education, DuQuoin Community Unit Schools, District No. 300, 19 Ill.App.3d 1091,

312 N.E.2d 659 (5th Dist. 1974); People ex rel. City of North Chicago v. City of Waukegan, 116

Ill.App.3d 88, 451 N.E.2d 293, 71 Ill.Dec. 578 (2d Dist. 1983).

The two principal problems concerning amendment of records are who may amend records

and when records may be amended. The council has the primary power to amend its records, but

it is the clerk, to whom the statutes refer as the principal keeper of the records, who has

responsibilities regarding their accuracy. The Illinois Municipal Code specifically states, for

example, that the records of the proceedings of meetings are to be available for public inspection

within seven days after being approved or accepted by the corporate authorities as the official

minutes of their proceedings. 65 ILCS 5/3.1-35-90(a). It may be stated as a general principle that

the council may amend its records to make them speak the truth at any time while members who

passed on the particular matter are still in office and before the rights of third parties have

intervened. The clerk may amend the records to make them speak the truth at any time the clerk is

in office. County of Schuyler v. Missouri Bridge & Iron Co., 173 Ill.App. 435 (4th Dist. 1912).

How are amendments of records to be made? The council can amend the record by a

resolution stating the fact that the records are to be amended, the facts that justify the amendment,

and the amendment that is made. If the clerk makes the amendment, the records should show

when, why, and how the amendment was made. If the clerk took the minutes, the clerk should

probably be permitted to correct them, but the fact that an amendment has been made should

appear on the face of the records. Since §3.1-35-90 of the Illinois Municipal Code makes clear

that the minutes are the responsibility of the corporate authorities, the best practice is for the clerk

to report the error and request the council to make the correction. In the event of litigation, parol

or oral evidence generally cannot be used to alter, explain, or contradict the records of the

proceedings of the council. Oral evidence, however, may be used to provide facts about the

proceedings that are omitted from the record.

The foregoing problems will never occur if the minutes are carefully prepared by the clerk

and carefully reviewed by the council before approval. If minutes are to be corrected at the

meeting at which they are first presented, a motion to approve the minutes with the corrections

noted is sufficient. It is only when the correction is to take place at some subsequent time that a

resolution is suggested. It also must be remembered that a correction of the minutes is proper only

when an error in recording has taken place. Thus, one may not “correct” the minutes to reflect a

change in position or view arrived at after the meeting. Such an item may appear in the minutes

only if the statement of recantation or change is made at a later meeting and recorded in the

minutes of the later meeting.

K. [3.28] When To Use Ordinances, Resolutions, and Motions

The council customarily acts by way of motions, resolutions, or ordinances. Since motions

customarily are made orally, they are the most informal method of action. They are, however,

noted in the minutes. A motion may be auxiliary to a more formal resolution or ordinance as in

the case of a motion that an ordinance be passed. Resolutions and ordinances are intended to be

written before being submitted. However, an amendment to an ordinance apparently added just

before passage and later reduced to writing need not be in writing before it is passed. People ex

rel. Village of Buffalo Grove v. Village of Long Grove, 199 Ill.App.3d 395, 557 N.E.2d 643, 145

Ill.Dec. 873 (2d Dist. 1990) (upholding validity of annexation ordinance even though oral

changes to written ordinance were made by motion prior to passage and final version of

ordinance and its attached exhibits were not completed in writing until sometime after date of

passage); Wheeling Trust & Savings Bank v. City of Highland Park, 97 Ill.App.3d 519, 423

N.E.2d 245, 53 Ill.Dec. 53 (2d Dist. 1981). See Chapter 8 of this handbook for a discussion of

specific procedural rules relating to ordinances.

The distinction between an ordinance and a resolution is not clear. An ordinance usually

enacts permanent regulations of a general character. As such, it sets forth a command or

prohibition applicable to all inhabitants or to certain classes in the community. Resolutions

ordinarily are used for actions that are temporary only, that grant a special privilege, or that

express the opinion of the council, such as those extending sympathy or requesting action of

governmental units. Merely because the subject of a resolution is important does not convert it

into an ordinance that requires the mayor’s signature and is subject to a veto. Roti v. Washington,

114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983). Unless required by local rule,

resolutions need not be published. Illinois Municipal Retirement Fund v. City of Barry, 52

Ill.App.3d 644, 367 N.E.2d 1048, 10 Ill.Dec. 439 (4th Dist. 1977).

The Illinois Municipal Code, in many instances, directs that action on a particular subject

shall be taken by ordinance. See, e.g., 65 ILCS 5/11-92-7. In this event, the adoption of a

resolution, at least by a non-home rule municipality, will not suffice. Village of Gulfport,

Henderson County, Illinois v. Buettner, 114 Ill.App.2d 1, 251 N.E.2d 905 (3d Dist. 1969); City of

Barry, supra. For example, the vacation of a street by a municipality must be done by ordinance.

Wheeling Trust & Savings Bank, supra. Neither have municipalities fared well in the courts when

they have attempted to waive ordinance provisions informally by motions. People ex rel. J.C.

Penney Properties, Inc. v. Village of Oak Lawn, 38 Ill.App.3d 1016, 349 N.E.2d 637 (1st Dist.

1976); Hale v. First National Bank of Mount Prospect, 57 Ill.App.3d 310, 372 N.E.2d 959, 14

Ill.Dec. 680 (1st Dist. 1978).

However, when the mode of exercise of municipal power is not prescribed in the statute

conferring the power or in some other statute, the power may be exercised by resolution as well

as by ordinance. City of Mound City v. Mason, 262 Ill. 392, 104 N.E. 685, 687 (1914). It should

also be noted that an ordinance may not be repealed, amended, suspended, or modified in any

way by a resolution; these actions may be accomplished only by ordinance. The distinguishing

features of an ordinance are its heading, which in the case of a city must be “Be it ordained, by

the City Council of _______________,” and in the case of a village must be “Be it ordained by

the President and Board of Trustees of the Village of _______________.” 65 ILCS 5/1-2-2.

Ordinances must be considered by a roll call vote. There is no requirement that an ordinance have

a title (City of Metropolis v. Gibbons, 334 Ill. 431, 166 N.E. 115 (1929)), and it may embrace

more than one subject (City & Suburban Distributors — Illinois, Inc. v. City of Chicago, 157

Ill.App.3d 791, 510 N.E.2d 1158, 110 Ill.Dec. 127 (1st Dist. 1987); City of Chicago v. Hill, 40

Ill.2d 130, 238 N.E.2d 403 (1968)). A municipality, however, may not take final action without

first publicly disclosing the subject matter to be considered. 5 ILCS 120/2(e). Thus, voting on an

ordinance that has been publicly described only by its number is insufficient. When a statute sets

forth certain steps as conditions to the passage of an ordinance, there must be compliance with

these steps. Brodner v. City of Elgin, 96 Ill.App.3d 224, 420 N.E.2d 1176, 51 Ill.Dec. 618 (2d

Dist. 1981).

An ordinance, other than one relating to municipal finance under Article 8 of the Illinois

Municipal Code (65 ILCS 5/8-1-1 through 5/8-12-24), that is adopted as an emergency measure

and contains a statement of its urgency in the preamble or body of the enactment and is passed by

at least a two-thirds vote of the corporate authorities can take effect upon its passage. 65 ILCS

5/1-2-4. However, it is also advisable in other circumstances that the municipality set forth the

reasons and purposes of the ordinance in a preamble. Adopting such a preamble may be helpful in

showing legislative intent should this intent be questioned in a judicial proceeding.

L. Ordinances

1. [3.29] Ordinances Containing Penalties

The corporate authorities of each municipality may pass all ordinances and make all rules and

regulations proper or necessary to carry into effect the powers granted to them or necessarily

implied by the powers specifically granted. 65 ILCS 5/1-2-1.

The 1969 amendment to the Illinois Municipal Code by P.A. 76-1912 (eff. Oct. 10, 1969) and

the 1970 Illinois Constitution gave municipalities greater power and flexibility than they

previously possessed in imposing penalties for ordinance violations. Home rule units are

guaranteed by the Constitution the power to impose the penalty of imprisonment for up to six

months, while non-home rule municipalities have been given this power by statute. ILL.CONST.

art. VII, §6(e); 65 ILCS 5/1-2-1.1. Non-home rule municipalities are limited to a maximum dollar

penalty of $750 for each offense except that a higher penalty may be requested when the offense

is the failure to make a return or pay any tax levied by the municipality. In addition, the Illinois

Municipal Code allows as a penalty for ordinance violation a requirement that the defendant

perform some reasonable public service work such as, but not limited to, picking up litter in

public parks or along public highways. 65 ILCS 5/1-2-1, 5/1-2-1.1.

An offense may be determined to occur on a daily basis, such as for a continuing violation of

a particular municipal ordinance. Village of Franklin Grove v. Chicago & Northwestern Ry., 196

Ill.App. 167 (2d Dist. 1915). For example, the community may pass an ordinance providing that

every day a building is in violation of the community’s building code is a new or separate

offense.

The fact that an ordinance contains a substantial daily penalty for its violation does not

prevent a suit by a municipality in equity to abate a nuisance. City of Chicago v. Cecola, 75 Ill.2d

423, 389 N.E.2d 526, 27 Ill.Dec. 462 (1979). But, a community may not seek an injunction when

fines may be a sufficient remedy. Village of Schaumburg v. Kingsport Village, Inc., 122

Ill.App.3d 85, 460 N.E.2d 800, 77 Ill.Dec. 496 (1st Dist. 1984). An ordinance is not rendered

invalid by the failure of a municipality to enforce it. Nolan v. City of Granite City, 162 Ill.App.3d

187, 514 N.E.2d 1196, 113 Ill.Dec. 185 (5th Dist. 1987).

Municipalities may apply an ordinance retroactively to regulate a continuing condition (e.g.,

fire prevention equipment required to be added to existing buildings), but the public benefit to

come from the change must overcome the costs resulting from the retroactive application. City of

Chicago v. Sheridan, 40 Ill.App.3d 886, 353 N.E.2d 270 (1st Dist. 1976); City of Chicago v.

Kutil, 43 Ill.App.3d 826, 357 N.E.2d 200, 2 Ill.Dec. 223 (1st Dist. 1976). For an ordinance to

apply retroactively, this intention must be clearly stated in the text of the enactment. Village of

Park Forest v. LaSalle National Bank, 16 Ill.App.3d 288, 306 N.E.2d 365 (3d Dist. 1973).

The prosecution of a violation of any municipal ordinance for which the maximum penalty

allowable is a fine rather than imprisonment is governed by the Code of Civil Procedure. Village

of Mundelein v. Aaron, 112 Ill.App.3d 134, 445 N.E.2d 57, 67 Ill.Dec. 765 (2d Dist. 1983).

Therefore, merely because a defendant was arrested and incarcerated in a police station during the

routine processing stages of a violation ultimately subject only to a fine is insufficient to render

the proceedings criminal in nature and the Code of Civil Procedure governs instead. City of Park

Ridge v. Larsen, 166 Ill.App.3d 545, 519 N.E.2d 1177, 117 Ill.Dec. 10 (1st Dist. 1988). Not every

provision of the Code of Civil Procedure is automatically applicable in the prosecution of finebased

municipal ordinance violations. See City of Danville v. Hartshorn, 53 Ill.2d 399, 292

N.E.2d 382 (1973); Village of Arlington Heights v. Suchocki, 89 Ill.App.3d 985, 412 N.E.2d 561,

45 Ill.Dec. 210 (1st Dist. 1980). One constant, however, is that in all fine-based ordinance

violation cases, municipalities need only prove their cases by a preponderance of the evidence.

Village of Bridgeview v. Slominski, 74 Ill.App.3d 1, 392 N.E.2d 641, 29 Ill.Dec. 944 (1st Dist.

1979). When a municipality seeks to impose imprisonment as a penalty, its burden of proof is

elevated to the criminal beyond a reasonable doubt standard, and the case must be tried under the

Code of Criminal Procedure of 1963, 725 ILCS 5/100-1, et seq., making convictions harder to

attain. 65 ILCS 5/1-2-1.1.

Section 1-2-1.1 of the Illinois Municipal Code provides that the corporate authorities of each

municipality may pass ordinances not inconsistent with the criminal laws of the state, making a

violation thereof punishable by incarceration in a city or county jail not to exceed six months.

Section 1-2-1.1 also lists a number of specific areas in which locally imposed jail sentences may

not be sought, such as speeding, intoxication, vagrancy, or disorderly conduct. A municipality

may seek both a fine and imprisonment, but it should be noted that the Illinois Constitution

allows imprisonment for failure to pay a fine in a criminal case only after the defendant has been

given adequate time to pay, in installments if necessary, and has willfully failed to make payment.

ILL.CONST. art I, §14.

All ordinance violations, whether viewed as criminal or civil in nature, are to be prosecuted

by a municipal attorney, and all fines are to be turned over by the court, upon receipt, to the

municipality in such manner as may be prescribed by ordinance. 65 ILCS 5/1-2-8. If municipal

police file charges under a state statute, then the state’s attorney or the Attorney General must

prosecute the matter. Any fines collected as a result of the filing of a state charge by a local

policeman are nonetheless paid to the municipality. City of Decatur v. Curry, 65 Ill.2d 350, 357

N.E.2d 1184, 2 Ill.Dec. 741 (1976). Under either a civil or criminal ordinance, each day that a

violation occurs may be viewed as a separate and distinct offense. If an ordinance fails to make

provision for imprisonment for its violation, a court cannot engraft that penalty on the ordinance.

Village of Mundelein v. Hartnett, 117 Ill.App.3d 1011, 454 N.E.2d 29, 73 Ill.Dec. 285 (2d Dist.

1983).

When a municipal ordinance contains a minimum fine and the defendant is adjudged guilty,

the court cannot assess a fine in an amount less than the minimum contained in the ordinance.

City of Springfield v. Ushman, 71 Ill.App.3d 112, 388 N.E.2d 1357, 27 Ill.Dec. 308 (4th Dist.

1979). When, however, the judge does not agree with the severity of the minimum fine, it is not

unknown for the judge simply to find the defendant not guilty. Municipalities may serve

summons by certified mail rather than in person for all ordinances punishable only by a fine of

not more than $750. 65 ILCS 5/1-2-9.1.

Many municipalities have ordinances that permit persons issued tickets for traffic and minor

offenses to pay an agreed amount in settlement at the municipal building before the charge is

referred to the court system. Generally, one or more notices are sent to the person, and the amount

at which the municipality will settle the matter increases as time goes by. If no response is

received after a certain number of days, the matter is referred to the court system and a trial date

is set. Persons who choose to accept the offer to settle save court costs and the need to appear in

court. A number of cases have arisen in which municipalities have attempted to use this system in

traffic cases and it has been contended that the court system and the Secretary of State’s point

system for driver license revocation have been improperly frustrated. The appellate court in

People ex rel. Ryan v. Village of Hanover Park, 311 Ill.App.3d 515, 724 N.E.2d 132, 243 Ill.Dec.

823 (1st Dist. 1999), appeal denied, 188 Ill.2d 582 (2000), held that municipalities, even home

rule communities, were without authority to interfere with the unified state system of prosecution

and record-keeping of certain moving violations. Some municipalities, home rule and non-home

rule alike, have moved to a system of administrative adjudication of many non-moving trafficrelated

ordinances. A community interested in pursuing this system should check with its attorney

for a review of the process and its powers. In addition, many home rule municipalities have

moved to a system of administrative adjudication of Illinois Municipal Code violations generally.

65 ILCS 5/1-2.1-1 through 5/1-2.1-10. There are a number of requirements before a municipality

may establish this new system, so consulting with a municipal attorney is wise.

2. [3.30] Effective Date of Ordinances — Publication

The Illinois Municipal Code provides that all ordinances imposing any fine, penalty,

imprisonment, or forfeiture or making any appropriation shall (a) be printed in book or pamphlet

form, published by the authority of the corporate authorities, or (b) be published at least once

within 30 days after passage in one or more newspapers published in the municipality or, if no

newspaper is published therein, in one or more newspapers with a general circulation within the

municipality except that in municipalities with less than 500 population in which no newspaper is

published, publication may be made by posting a notice in three prominent places within the

municipality. 65 ILCS 5/1-2-4.

Section 1-2-4 of the Illinois Municipal Code provides that no such ordinance shall take effect

until ten days after it is so published except that an ordinance (other than an ordinance adopted

under Article 8 of the Illinois Municipal Code) that contains a statement of its urgency in the

preamble or body may be passed to take effect immediately upon its passage by a vote of two

thirds of all the members of the corporate authorities then holding office. The decision of the

corporate authorities on the urgency of any ordinance is not subject to judicial review except for

an abuse of discretion. Id. Such an ordinance might state, “This ordinance shall take effect

immediately upon its passage, due to the urgency of implementing an immediate sprinkling ban

as a result of a shortage in the municipal water supply.”

When an ordinance receives the required vote of two thirds of the corporate authorities and

contains a statement of urgency, it does not appear that it requires the approval of the mayor, and

it may not be subject to a veto. No case yet has dealt with this question.

Section 1-2-4 also provides that an ordinance imposing a municipal retailer’s occupation tax

adopted under 65 ILCS 5/8-11-1 or a tourism, convention, and other special events promotion tax

adopted under 65 ILCS 5/8-3-13 or effecting a change in the rate thereof should take effect on the

first day of the month next following the expiration of the 30-day publication period.

An ordinance annexing property cannot take effect immediately if it is passed during any

period 60 days or less before a municipal election. The ordinance takes effect the day following

the election. 65 ILCS 5/7-1-1.

All other ordinances, resolutions, or motions take effect upon their passage unless otherwise

provided. 65 ILCS 5/1-2-4. Thus the corporate authorities may, if they wish, provide that an

ordinance shall not take effect for 30 or 60 days or until a certain event has occurred.

Failure of a municipality to publish an ordinance that is required by law to be published may

render it void. Indian Valley Golf Club, Inc. v. Liquor Control Commission, 12 Ill.App.3d 141,

297 N.E.2d 763 (1st Dist. 1973); Homefinders, Inc. v. City of Evanston, 65 Ill.2d 115, 357 N.E.2d

785, 2 Ill.Dec. 565 (1976). However, with reference to home rule municipalities, one appellate

court has held that the publication requirement of §1-2-4 of the Illinois Municipal Code did not

apply to a home rule zoning amendment of a sign ordinance. City of Champaign v. Kroger Co.,

88 Ill.App.3d 498, 410 N.E.2d 661, 43 Ill.Dec. 661 (4th Dist. 1980). But see City of Rockford v.

Suski, 90 Ill.App.3d 681, 413 N.E.2d 527, 46 Ill.Dec. 87 (2d Dist. 1980).

It is not clear whether the word “appropriation” as used in §1-2-4 means that only

appropriation ordinances need to be published or whether any ordinances setting apart certain

sums of money for specific objects need to be published. Illinois Municipal Retirement Fund v.

City of Barry, 52 Ill.App.3d 644, 367 N.E.2d 1048, 10 Ill.Dec. 439 (4th Dist. 1977); Schwartz v.

City of Chicago, 223 Ill.App. 184, 192 (1st Dist. 1921). It is interesting to note that in the

provision of the Illinois Municipal Code defining the power of the mayor to veto, the Code states

that the mayor may veto any ordinance, resolution, or motion “for the expenditure or

appropriation of [the city’s] money.” 65 ILCS 5/3.1-40-45. This language implies that the word

“appropriation” applies only to annual or supplementary appropriation ordinances. A

municipality can avoid this problem of the definition of “appropriation” by providing that all

ordinances are published in pamphlet form.

Section 1-2-4 of the Illinois Municipal Code further provides as follows:

If there is an error in printing, the publishing requirement of this Act shall be

satisfied if those portions of the ordinance that were erroneously printed are

republished, correctly, within 30 days after the original publication that contained

the error.

Since the word “publication” under the Code means both publication in a newspaper and

publication in book or pamphlet form, one can assume that this provision authorizes the

correction of both typographical and newspaper printing errors. Thus, when there is an error in a

legal description in an ordinance, the error can be corrected by republishing the portion of the

ordinance that was in error within 30 days after the previous day of first publication. Municipal

officials would be wise to include within the ordinance book some record of the corrective

actions that have been taken. It appears from the language of the statute that the original date of

validity of the ordinance would remain in effect, as opposed to the date on which the correction

was made. However, when the error is minor and purely technical, such as a printing mistake, and

the error does not affect the substance of the ordinance, a court may find that a failure to correct

and republish the ordinance in accordance with §1-2-4 does not invalidate the ordinance. For

example, in VonBokel v. City of Breese, 100 Ill.App.3d 956, 427 N.E.2d 322, 56 Ill.Dec. 242 (5th

Dist. 1981), the court upheld the validity of an ordinance containing a printing error concerning

the effective date of the ordinance that the municipality had failed to correct and republish, stating

that the discrepancy was inconsequential and did not affect the substance of the ordinance.

Once an ordinance has been properly published in pamphlet form or otherwise, no further

notice to the public of its existence or its terms is necessary before it can be enforced. Publication

is notice to the world of the existence of the ordinance. Village of Fox River Grove v. Aluminum

Coil Anodizing Corp., 114 Ill.App.2d 226, 252 N.E.2d 225 (2d Dist. 1969); Village of

Riverwoods v. Untermyer, 54 Ill.App.3d 816, 369 N.E.2d 1385, 12 Ill.Dec. 371 (2d Dist. 1977).

Sections 1-3-1 through 1-3-6 of the Illinois Municipal Code (65 ILCS 5/1-3-1 through 5/1-3-

6) and the Municipal Adoption of Codes and Records Act, 50 ILCS 220/0.01, et seq., provide

methods of adopting technical codes, construction regulations, and public records by reference.

However, in the case of a home rule municipality, the procedures for passage of these ordinances

are within its home rule authority. 65 ILCS 5/1-3-2; Suski, supra. However, this authority does

not appear to affect the duty of a home rule municipality to publish such an ordinance, either in a

newspaper or in pamphlet form. Also, §1-2-4 of the Illinois Municipal Code contains special

procedures for adoption by reference of building codes and rules relating to trailer parks.

In commission-form municipalities, every ordinance and resolution must be filed for record

before it is deemed to be effective. 65 ILCS 5/4-5-12. However, in Wheeling Trust & Savings

Bank v. City of Highland Park, 97 Ill.App.3d 519, 423 N.E.2d 245, 53 Ill.Dec. 53 (2d Dist. 1981),

the appellate court found that this requirement was directory and would not affect the validity of a

street vacation ordinance. Also, in commission-form municipalities, every ordinance or resolution

that provides for an appropriation, orders a street or sewer improvement, makes or authorizes the

making of any contract, or grants a franchise or the use of any street or other public place must be

filed with the municipal clerk for public inspection at least one week before it is finally passed. 65

ILCS 5/4-5-13.

Ordinances required to be published must be published within 30 days after passage. 65 ILCS

5/1-2-4. It should be noted that these ordinances may be published either by publication in a

newspaper or by printing in a book or pamphlet form by authority of the corporate authorities.

For example, the Illinois Municipal Code specifically requires newspaper publication of

ordinances providing for the lease or purchase of real or personal property by the municipality

pursuant to installment contracts not exceeding 20 years in duration. 65 ILCS 5/11-76.1-3. There

are very few other provisions requiring newspaper rather than pamphlet publication. Substantial

publication costs may be saved by assembling mimeographed or typewritten copies of the

ordinance and declaring it to have been published in pamphlet form. McGregor v. Village of

Lovington, 48 Ill.App. 202 (3d Dist. 1892); Lindsay v. City of Chicago, 115 Ill. 120, 3 N.E. 443

(1885). In these instances, a title page should be added to the ordinance. The title page should be

in approximately the following form:

CITY OF _______________

ORDINANCE NO. __________

AN ORDINANCE AMENDING THE TEXT OF THE

ZONING ORDINANCE BY ADDING _______________

AS SPECIAL USES IN A _____ ZONE

ADOPTED BY THE

CITY COUNCIL

OF THE

CITY OF _______________

Published in pamphlet form by authority of the City Council of the City of

_______________, _______________ County, Illinois, this _____ day of ____________, 20__.

[Note: When an ordinance is published in pamphlet form, the following certificate should be

filled out by the municipal clerk:]

STATE OF ILLINOIS )

) ss.

COUNTY OF )

CERTIFICATE

I, _______________, certify that I am the duly elected and acting municipal clerk of the

City of _______________, _______________ County, Illinois.

I further certify that on ____________, 20__, the corporate authorities of such

municipality passed and approved Ordinance No. __________, entitled ________________

_____________________________________________________________________________,

which provided by its terms that it should be published in pamphlet form.

The pamphlet form of Ordinance No. __________, including the Ordinance and a cover

sheet thereof, was prepared, and a copy of such Ordinance was posted in the municipal

building, commencing on ____________, 20__, and continuing for at least ten days

thereafter. Copies of such Ordinance were also available for public inspection upon request

in the office of the municipal clerk.

DATED at _______________, Illinois, this _____ day of ____________, 20__.

(SEAL)

_______________________________________

Municipal Clerk

It may be advisable for municipalities to publish all ordinances in pamphlet form. This

practice will alleviate any question of whether an ordinance should be published. All but a few

unusual ordinances may be concluded with the words “This ordinance shall be in full force and

effect from and after its passage, approval, and publication in pamphlet form as provided by law.”

The municipality must then make certain that all such ordinances are in fact published in

pamphlet form. It has been held that an ordinance that does not need to be published but that

contains these words is not valid if it cannot be shown that it was actually published.

Homefinders, supra. See also In re Application of County Collector of Kane County, 172

Ill.App.3d 897, 527 N.E.2d 141, 122 Ill.Dec. 769 (2d Dist. 1988).

In municipalities with less than 500 population having no newspaper published therein, when

the ordinance has been posted after passage, a certificate should be executed by the person

posting the ordinance setting forth the time and places it was posted. This certificate should be

appended to the original ordinance.

As noted above, ordinances requiring publication do not become effective until ten days after

publication. An exception is made for an appropriation ordinance, which takes effect upon

passage. 65 ILCS 5/1-2-4. Several other specialty ordinances also derogate from the general tendays-

after publication implementation rule. Id. In computing time, the Statute on Statutes, 5 ILCS

70/0.01, et seq., provides that it must be computed by excluding the first day and including the

last day, unless the last day is a Saturday, Sunday, or holiday, as fixed by statute, and then it must

also be excluded. If the day succeeding the Saturday, Sunday, or holiday is also a holiday,

Saturday, or Sunday, then that day also shall be excluded. 5 ILCS 70/1.11. It is not necessary to

publish the tax levy ordinance in a newspaper, although by tradition many communities do

publish this particular annual ordinance.

Under the Notice By Publication Act, 715 ILCS 5/0.01, et seq., whenever a statute requires

that any legal notice or publication shall be published in a newspaper, it means a newspaper that

has been regularly published for at least one year prior to the first publication of the notice and

that meets other statutory requirements. 715 ILCS 5/5. But see §1 of the Newspaper Legal Notice

Act, 715 ILCS 10/0.01, et seq. (715 ILCS 10/1).

The statutes and the courts seem to favor and in some cases require use of a newspaper or an

edition of a newspaper that is first distributed exclusively in the community. If there is such a

paper that otherwise complies with statutory provisions, it is that paper rather than a regional or

countywide paper that should be used. As local newspapers continue to be purchased and

published by chains that centrally print and distribute, this may become more of a problem. As

long as publication takes place in the newspaper required to be used by statute, the municipality

may certainly also cause publication to be made in other newspapers with broader circulations.

3. [3.31] Recording of Ordinances

The Illinois Municipal Code provides that the clerk shall record in an ordinance book, used

exclusively for this purpose, all ordinances passed by the corporate authorities. Immediately

following each ordinance, the clerk should make a memorandum of the date of passage and, when

required, of the publication in a newspaper or in book or pamphlet form by the authority of the

corporate authorities, or by posting. 65 ILCS 5/1-2-5. Proof of posting should be filed with the

clerk in the form of an affidavit by whoever did the posting and should be placed in the official

ordinance book with the ordinance. Proof of newspaper publication of an ordinance is furnished

to the clerk by the newspaper publisher in the form of a copy of the official publication attached

to a notarized certificate or affidavit of publication on a specified date. This proof and affidavit

should be attached and included in the official ordinance book along with the signed copy of the

ordinance. See also §3.24 above regarding the records of council or board meetings.

Proof of publication in pamphlet form is generally provided by a cover page affixed to the

ordinance and stating, “Published in pamphlet form by authority of the [President and Board of

Trustees] [Mayor and City Council] of the [Village] [City] of _______________.” It is also

appropriate to attach a notarized affidavit to the cover sheet stating that the ordinance was posted

in pamphlet form at a certain place in the municipal building for a certain period of days.

In addition to the foregoing, clerks of commission-form municipalities should note in the

ordinance book the date ordinances were placed on file for public inspection whenever this action

is required. 65 ILCS 5/4-5-13.

The recording of ordinances with county officials is generally not required. Some exceptions

to this general rule are tax levy ordinances, ordinances annexing property, and ordinances

establishing special service areas. Some communities record their ordinances simply so that there

is some permanent record in addition to the one kept at the municipal building. One ordinance

that should be recorded is an ordinance authorizing the execution of an annexation agreement.

These agreements bind both the municipality and future owners of the property for a period of up

to 20 years. Although it can be argued that the passage of the ordinance is itself notice to the

world, it is desirable, by recording the agreement, to eliminate an argument made by a subsequent

purchaser of the land that it had no notice of the provisions of the annexation agreement. A

combination of good recordkeeping and microfilming or computer memory storage should save

the community substantial recording fees.

4. [3.32] Public Notices and Hearings on Ordinances

The passage of most municipal ordinances does not require prior notice to the public or the

holding of any public hearing. There are certain exceptions to this general rule that must be noted.

Ordinances that require that certain procedural steps take place prior to their passage are invalid if

these steps are not taken. Cosmopolitan National Bank of Chicago v. City of Chicago, 27 Ill.2d

578, 190 N.E.2d 352 (1963); Scott v. Rochford, 77 Ill.2d 507, 397 N.E.2d 801, 34 Ill.Dec. 129

(1979). A public hearing must be held before the following types of ordinances can be passed: (a)

zoning (65 ILCS 5/11-13-2); (b) planning (65 ILCS 5/11-12-7); (c) adoption of annexation

agreements (65 ILCS 5/11-15.1-3); (d) special assessments (65 ILCS 5/9-2-10); (e) tax increment

financing redevelopment (65 ILCS 5/11-74.4-5); (f) adoption of annual budgets (65 ILCS 5/8-2-

9.9); (g) variances (65 ILCS 5/11-13-5); (h) special uses (65 ILCS 5/11-13-1.1); and (i) adoption

under the Property Tax Code, 35 ILCS 200/1-1, et seq., of a tax levy that is more than 105

percent of the amount of the previous year’s levy (35 ILCS 200/18-70). When a public notice

contains a legal description, it also must contain a common address. 715 ILCS 5/9. In Scanlon v.

Faitz, 75 Ill.2d 472, 389 N.E.2d 571, 27 Ill.Dec. 507 (1979), a municipality failed to give proper

notice before apparently granting zoning variances. The village later withdrew building permits

after construction had begun. The court held that since the proper procedures were not followed,

the permits could be withdrawn.

Many of the statutory provisions that require a public hearing by the corporate authorities or

some other body prior to the passage of a particular type of ordinance also specify the type of

notice that must be given before the public hearing can be held. For example, the requirement that

a public hearing before some “commission or committee designated by the corporate authorities”

take place prior to the passage of an ordinance granting a special use is found in 65 ILCS 5/11-

13-1.1, which further specifies that the notice must be given (depending on the size of the

municipality) as provided in 65 ILCS 5/11-13-6 and 5/11-13-7. There also are some instances in

which public notice of the passage of a particular type of ordinance is required by statute to be

given without regard to whether a public hearing is to take place. Thus, for example, 65 ILCS

5/7-1-1 contains various requirements for specific notice and, in one instance, for a filing of the

notice with the clerk of the court or the recorder before land can be annexed to a municipality. In

some cases, the courts have overlooked various failures to comply with notice procedures if the

party complaining could not prove actual harm caused by the failure to notify. City of Rockford v.

Suski, 90 Ill.App.3d 681, 413 N.E.2d 527, 46 Ill.Dec. 87 (2d Dist. 1980). A lengthy discussion of

these notice requirements is found in Volume II of IICLE’s ILLINOIS MUNICIPAL LAW

SERIES (publication scheduled for fall 2006).

M. [3.33] Quorum

The Illinois Municipal Code provides that a majority of the corporate authorities, i.e., the

council or board of trustees and the mayor or president, shall constitute a quorum to do business.

65 ILCS 5/3.1-40-20. Acts done by the council without a quorum are void. People ex rel.

Compton v. Penn, 33 Ill.App.3d 372, 342 N.E.2d 280 (5th Dist. 1975). Furthermore, a quorum of

the body must be present not only to begin a meeting but also at the time of a roll call vote on any

proposition. When less than a quorum remains at a meeting, business conducted may be

questioned. In the Congress of the United States, business can go on unless a roll call is required.

It is unclear, however, how Illinois courts would deal with this issue.

The mayor or president is to be counted in determining whether a quorum is present. For

example, if a city has a mayor and fourteen aldermen, the corporate authorities are composed of

fifteen individuals. Therefore, it is necessary that at least eight aldermen, or the mayor and seven

aldermen, be present at a meeting in order to constitute a quorum to do business. Under the

village form, in which six trustees and a president are elected, the corporate authorities are

composed of seven individuals. At least four trustees, or the president and three trustees, must be

present to constitute a quorum. Under the commission form, at least three members of the council

are required to be present to constitute a quorum. 65 ILCS 5/4-5-12. When a member of the

corporate authorities submits a resignation effective at the close of the meeting, he or she may

participate in the meeting and be counted in establishing a quorum.

In the absence of a quorum, the council members present may adjourn or compel the

attendance of the absentees under whatever penalties the council may prescribe by ordinance,

including a fine for failure to attend. 65 ILCS 5/3.1-40-20. In this case, the members present will

merely remain at the municipal building until the latecomers are rounded up or will return in an

hour if the meeting has been adjourned to that time to permit a search for the remaining members.

The penalty, in order to be effective, must have been in force before the absence.

Generally, when a quorum is not present, the members present will merely assemble and

declare no legal meeting. If the transaction of business is imperative before the next regular

meeting, an emergency special meeting may be called and the proof thereof properly recorded.

This procedure should be used only in the face of a compelling emergency since a special

meeting may be called on 48 hours’ notice and the members who constitute less than a quorum

also have the option to adjourn the meeting to another time.

In determining whether there is a quorum, members present at the meeting of the council are

counted as present regardless of whether they occupy their respective seats. Although there are no

Illinois cases on this point, one authority indicates that members having an interest in the business

to come before the meeting are generally excluded in counting a quorum. 4 Eugene McQuillin,

THE LAW OF MUNICIPAL CORPORATIONS §13.35.10 (3d ed. rev. 2002).

If a member comes into a meeting after it is called to order, the minutes at that point in the

record should state something to the effect of “Alderman Jones entered the meeting and took his

seat at 9:00 P.M.” If a member departs from the meeting, the minutes similarly should state,

“Alderman Jones left the meeting at 10:00 P.M.”

N. [3.34] Officers: Effect of Failure To Take Oath and Post Bond on Authority To Vote

Despite the statutory requirement that municipal officers must post bond and take an oath

before assuming the duties of office (65 ILCS 5/3.1-10-25, 5/3.1-10-30), some courts have held

that the failure to satisfy these mandates will not necessarily deprive an officer of authority to

perform certain duties. In Clark v. Board of Fire & Police Commissioners of Village of Bradley,

245 Ill.App.3d 385, 613 N.E.2d 826, 184 Ill.Dec. 509 (3d Dist. 1993), the appellate court

determined that the failure of two members of the board to post bond did not deprive them of the

authority to preside and vote at a disciplinary hearing or deprive the board of its authority to

render a decision to terminate the officer. The court held that a person actually performing the

duties of an office is a de facto officer and his or her acts are valid as against the public or third

parties Similarly, in Swanson v. Board of Police Commissioners of Village of Lake in the Hills,

197 Ill.App.3d 592, 555 N.E.2d 35, 144 Ill.Dec. 138 (2d Dist. 1990), the court held that a member

of a board of fire and police commissioners was a de facto officer with the authority to vote even

though he had not been properly appointed prior to acting. Both of these courts held that the lack

of bond becomes an issue only when the dispute regarding the officer’s authority is between the

municipality and the municipal officeholder required to post bond. Clark, supra, 613 N.E.2d at

829, citing Swanson, supra.

In a dispute involving the City of Pekin (operating under the commission form of

government) about the validity of resolutions repealing certain ordinances that the outgoing

mayor and commissioners had passed at a meeting held less than an hour before the new council

took office, the court found the actions of the new council invalid. Monge v. City of Pekin, 245

Ill.App.3d 622, 614 N.E.2d 482, 185 Ill.Dec. 348 (3d Dist. 1993). The Monge court addressed the

issues of terms of office and qualifications of municipal officers.

The ordinances challenged in Monge authorized a contract for the private development of a

section of Pekin’s downtown area. When the new council voted to rescind the earlier actions of

the outgoing council, the aggrieved parties sued the city for breach of contract and tortious

interference with the plaintiffs’ business expectancy. The plaintiffs claimed that the new mayor

and commissioners had not yet qualified when they voted to rescind the former board’s actions

since the election results were not proclaimed and the newly elected officers had not yet filed

bonds and oaths with the proper authority at the time of their meeting.

The appellate court reversed the trial court’s order dismissing the complaint, finding that a

factual question existed concerning whether the new officers were serving as de jure officers.

Even if they were not, the court found sufficient facts to suggest that the outgoing mayor and

commissioners may have been functioning as de facto officers whose acts (i.e., passing the

ordinances) would be binding on the plaintiffs. The Monge court, quoting People v. Woodruff, 9

Ill.2d 429, 137 N.E.2d 809, 813 (1956), noted, “It is a well settled principle that the acts of

officers de facto are as valid and effectual where they concern the public or the rights of third

persons as though they were officers de jure.” 614 N.E.2d at 485. The outgoing mayor and

council members were acting under color of title and held office for four years, past the time of

the new officers’ assumption of office; therefore, their terms had not expired when the ordinances

were passed. It thus appears that a lame duck council still has the power, if it follows appropriate

procedures, to take certain acts that can contractually bind future councils. Based on the authority

in Monge, lame duck councils that, for example, have spent long periods of time negotiating

redevelopment agreements for tax increment finance districts, annexation agreements, or

franchise agreements appear to be able to conclude their work and act on these matters, even

when they are controversial, before a new council or board takes office. Of course, a lame duck

council cannot act on a matter at its final meeting that has not been placed on the agenda or that

requires appropriate prior public notices that have not been timely published.

O. Voting

1. [3.35] Voting Requirements

65 ILCS 5/3.1-40-40 requires that all ordinances, for whatever purpose, and all resolutions or

motions (a) to create any liability against the city or (b) for the expenditure or appropriation of its

money shall require the concurrence of a majority of all members then holding office, including

the mayor. When the elected council consists of an odd number of aldermen, the vote of the

majority of the aldermen shall be sufficient to pass an ordinance. The same requirements apply to

a village. However, the requirements differ under the commission form in that the affirmative

vote of at least three council members is necessary unless a greater number is required by statute.

65 ILCS 5/4-5-12.

As an example of the general voting requirement, consider a council consisting of a mayor

and fourteen aldermen, or a total of fifteen members. In order to meet the statutory requirements

for the adoption of any ordinance or any resolution or motion creating a liability or calling for the

expenditure or appropriation of money, at least eight aldermen must vote favorably on the

proposition, or seven aldermen and the mayor. In a village with a president and six trustees,

comprising a seven-member board, at least four trustees must concur on the proposition, or three

trustees and the president. In the same fourteen-member council with only seven aldermen and

the mayor present, the “nay” vote of one alderman is thus sufficient to defeat an ordinance, for

whatever purpose, as well as a resolution or motion relating to a liability, expenditure, or

appropriation.

The passage of an ordinance, resolution, or motion to sell school property requires the

concurrence of three fourths of the aldermen or trustees then holding office. 65 ILCS 5/3.1-40-40.

The affirmative vote of three fourths of these officers also is necessary to vacate a street or alley.

65 ILCS 5/11-91-1. The percentage required in §§3.1-40-40 and 11-91-1 is computed without

counting the mayor or president. The mayor or president is counted, however, in voting on an

ordinance providing for the purchase or lease of property through installment contracts up to 20

years in duration, which requires a two-thirds vote of the corporate authorities. 65 ILCS 5/11-

76.1-1. It is important to note in those cases in which the statutes require an extraordinary

majority whether the percentage is to be computed using the number of members of the

“corporate authorities” (which includes the mayor or president) or the “aldermen,” “trustees,”

“city council,” or “village board” (which do not include the mayor or president). Ketchmark v.

Lynch, 107 Ill.App.2d 36, 246 N.E.2d 133 (3d Dist. 1969).

Authority to waive the advertising for bids in the letting of any work or other public

improvement when the expense thereof will exceed $20,000 requires a favorable vote of two

thirds of all the aldermen or trustees then holding office (65 ILCS 5/8-9-1) as does the enactment

of a zoning amendment under certain conditions (65 ILCS 5/11-13-14). In commission-form

governments, a favorable vote of four out of five council members is required to waive the

advertising for bids for contracts for any work on other public improvements when the cost

thereof will be greater than $20,000. 65 ILCS 5/4-5-11. However, a non-home rule municipality

may not require greater than a majority vote for the passage of any ordinance if this requirement

is inconsistent with a state statutory framework. Traders Development Corp. v. Zoning Board of

Appeals of Peoria County, Illinois, 20 Ill.App.2d 383, 156 N.E.2d 274 (2d Dist. 1959). If local

rules require certain matters to be passed by a majority of the aldermen or trustees, proper

passage is not affected by the fact that the mayor or village president must cast the tie-breaking

vote to establish the majority City & Suburban Distributors-Illinois, Inc. v. City of Chicago, 157

Ill.App.3d 791, 510 N.E.2d 1158, 110 Ill.Dec. 127 (1st Dist. 1987).

In Marquette Properties, Inc. v. City of Wood Dale, 159 Ill.App.3d 307, 512 N.E.2d 371, 111

Ill.Dec. 255 (2d Dist. 1987), the court held invalid a municipal ordinance that required a two-

thirds affirmative vote of a city council to overrule a negative recommendation of a zoning board

of appeals on an application for a special use planned unit development. The court stated that

although the Illinois Municipal Code requires such an extraordinary majority for a similar

negative recommendation on a variation request, no such condition may be placed by a non-home

rule municipality for the granting of a special use. The court actually went further in raising

doubts as to whether any non-home rule community could require a supermajority vote for any

matter other than one mandated by statutory law. Note that this particular fact situation was

subsequently addressed by the enactment of P.A. 86-330 (eff. Aug. 30, 1989), which allows the

corporate authorities, by ordinance, to increase the vote requirement to two thirds for overriding

negative special use recommendations. 65 ILCS 5/11-13-1.1. The language of 65 ILCS 5/3.1-40-

30 seems to imply that municipal ordinances may require a supermajority vote on matters that are

not specified by statute since it gives the mayor a right to vote when either the Illinois Municipal

Code or an ordinance requires a supermajority vote to pass an “ordinance, resolution, or motion.”

The following are some of the actions that require an extra-majority vote:

a. rejecting the terms of an arbitration panel’s decision in a security, police, or fire

employee interest arbitration decision under the Illinois Public Labor Relations Act

(three-fifths vote of the duly elected and qualified members of the governing body (5

ILCS 315/14(n)));

b. authorizing the execution of annexation agreements or amendments to these agreements

(two thirds of the corporate authorities then holding office (65 ILCS 5/11-15.1-3));

c. making additional appropriations after the passage of an annual appropriation ordinance

(1) for the purposes of making improvements or restorations needed because of a casualty

or accident happening after the passage of the annual appropriation, or (2) for the purpose

of meeting an unforeseen emergency (i.e., a condition requiring immediate action to

prevent disease or to remove an imminent danger to persons or property) happening after

the passage of the annual appropriation ordinance (two-thirds vote of the corporate

authorities (65 ILCS 5/8-1-6));

d. making transfers of sums within departments from one object or purpose to another (twothirds

vote of the corporate authorities (65 ILCS 5/8-2-9));

e. contracting without prior appropriation for professional services necessary for planning

and financing a needed public work (two-thirds vote of the corporate authorities then

holding office (65 ILCS 5/8-1-7));

f. waiving a statutory bid requirement (1) for contracting for construction of any work or

other public improvement if the expense thereof will be over $20,000, or (2) for

authorizing an officer to superintend and carry out construction by the municipal

employment of laborers exclusively for this purpose (material over $20,000 in cost must

still be bid, but not labor) (two-thirds vote of the trustees then holding office (65 ILCS

5/8-9-1));

g. accepting a bid for the sale of real estate (three-fourths vote of the corporate authorities

then holding office (65 ILCS 5/11-76.2-1));

h. issuing bonds without a referendum, in the face of a compliance order issued by the

United States Environmental Protection Agency or the Illinois Pollution Control Board,

to finance water or wastewater facilities (three-fifths vote of the corporate authorities (65

ILCS 5/8-4-1));

i. borrowing by the village president or finance committee to meet limited additional

appropriations made after an annual appropriation ordinance was passed (1) for financing

improvements necessary due to an accident or casualty happening after passage, or (2) for

financing needed to take an immediate action to prevent the spread of disease or remove

imminent damages due to an unforeseen event happening after passage (two-thirds vote

of the corporate authorities (65 ILCS 5/8-1-6));

j. adopting a statutory budget system to use instead of an appropriation system (requires the

designation of a budget officer) (two-thirds vote of the corporate authorities then holding

office (65 ILCS 5/8-2-9.1));

k. abandoning the statutory budget system described in item j above (two-thirds vote of the

corporate authorities then holding office (65 ILCS 5/8-2-9.10));

l. delegating authority to department heads, boards, and commissions to change sub-classes

in their object classes budgeted previously under the statutory budget system (two-thirds

vote of the corporate authorities then holding office (65 ILCS 5/8-2-9.6));

m. approving the revision of sub-classes or object classes under the statutory budget system

(two-thirds vote of the corporate authorities then holding office (id.));

n. without prior appropriation, employing or contracting for professional services necessary

for planning and financing a needed public work when it is expedient or in the best public

interest to begin these proceedings (two-thirds vote of the corporate authorities then

holding office (65 ILCS 5/8-1-7));

o. contracting by installment with a related special taxing authority, not exceeding 20 years,

to purchase or lease real or personal property (two-thirds affirmative vote of the elected

corporate authorities then holding office (65 ILCS 5/11-76.1-1));

p. passing an ordinances with an immediate effective date containing a statement of urgency

(two-thirds vote of the corporate authorities then holding office (65 ILCS 5/1-2-4));

q. expelling a trustee or alderman from a meeting, but not a second time for the same

incident (two-thirds vote of the trustees elected (65 ILCS 3.1-40-15));

r. discontinuing an office created by ordinance (two-thirds vote of the aldermen or trustees

elected (65 ILCS 5/3.1-20-40));

s. providing by ordinance for the elective office of collector, marshal, superintendent of

streets, corporation counsel, comptroller, or any other officer considered necessary (twothirds

vote of the trustees elected (id.));

t. unless otherwise provided by statute, disapproving of the removal by the president of an

officer appointed by the president and restoring the officer to his or her office (two-thirds

vote of the trustees authorized to be elected (65 ILCS 5/3.1-35-10));

u. voting on more than one item at once (unanimous vote of the corporate authorities to use

an omnibus vote agenda and to decide which items to place on the agenda (65 ILCS

5/3.1-40-40));

v. conveying real estate by ordinance when it is no longer needed or no longer in the best

interest to keep (three-fourths vote of the corporate authorities (65 ILCS 5/11-76-1));

w. leasing real estate to another municipal corporation for terms up to 99 years when it is in

the best interest (three-fourths vote of the corporate authorities (id.));

NOTE: Without further board or council action, the corporate authorities can authorize any

official to enter into a lease term of up to two years.

x. accepting a bid for the sale of real estate (three-fourths vote of the corporate authorities

then holding office for acceptance of high or best bid (65 ILCS 5/11-76-2));

NOTE: Unless the appraisal method is approved by resolution, the bid method must be used. All

bids may be rejected by a majority vote.

y. accepting a contract proposal for the sale of real estate under the appraisal method (twothirds

vote of the corporate authorities then holding office (65 ILCS 5/11-76-4.1));

NOTE: When approved by resolution, surplus real estate may be sold by staff or an agent at a

price not less than 80 percent of a written certified appraisal amount by a member of the

Appraisal Institute or at least 80 percent of a written certified appraisal by a state-certified or

licensed real estate appraiser.

z. selling school property by ordinance, resolution, or motion (three-fourths concurring vote

of trustees then holding office (65 ILCS 5/3.1-40-40));

aa. purchasing or leasing real estate from another by an installment contract not exceeding a

20-year term with an accompanying special taxing authority, which leasing authority also

applies to a lease with an option to purchase (two-thirds affirmative vote of the corporate

authorities then holding office (65 ILCS 5/11-76.1-1));

bb. authorizing a required hearing on a proposal to exchange real estate (three-fourths vote of

the corporate authorities then holding office (65 ILCS 5/11-76.2-1));

cc. authorizing under the Local Government Property Transfer Act, 50 ILCS 605/0.01, et

seq., to grant or convey real estate between municipal corporations on terms agreed to by

both municipal corporations (two-thirds vote of the members of the governing body then

holding office (50 ILCS 605/2));

dd. authorizing to lease real estate between municipal corporations for up to 50 years on

terms agreed to by both municipal corporations (two-thirds vote of the members of the

governing body then holding office (50 ILCS 605/3.1));

ee. transferring all municipal right to, title to, and interest in real estate to the State of Illinois

on terms agreed to by the parties (two-thirds vote of the members of the governing body

then holding office (50 ILCS 605/4));

ff. purchasing or leasing personal property from another (two-thirds affirmative vote of the

elected corporate authorities then holding office (65 ILCS 5/11-76.1-1));

gg. leasing equipment and machinery for a period not to exceed five years (two-thirds

affirmative vote of the corporate authorities (65 ILCS 5/11-76-6));

hh. increasing the street and bridge tax rate (from a rate not to exceed 0.06 percent to a rate

not to exceed 0.10 percent) (three-fourths vote of the elected members of the board of

trustees (65 ILCS 5/11-81-2));

ii. providing for a street lighting tax at a rate not to exceed 0.05 percent of the equalized or

assed value of the taxable property in the municipality (two-thirds concurring vote of the

trustees elected (65 ILCS 5/11-80-5));

jj. vacating a street or alley within the municipal limits by ordinance when the public

interest is served (three-fourths affirmative vote of the trustees then holding office (65

ILCS 5/11-91-1));

kk. vacating a street or alley in unincorporated territory after a hearing pursuant to prior

newspaper notice (three-fourths affirmative vote of the trustees then holding office (id.));

ll. vacating a street or alley in unincorporated territory within a municipal airport area

(three-fourths affirmative vote of the trustees authorized to be elected (65 ILCS 5/11-101-

2));

mm. granting a zoning variation by ordinance, notwithstanding a recommendation to deny,

after a hearing held by the zoning board of appeals (two-thirds favorable vote of the

trustees (65 ILCS 5/11-13-10));

nn. granting a zoning variation within six months after an official plan was adopted (also

applies to a zoning board of appeals with final variation-approval authority) (two-thirds

vote of the corporate authorities then holding office (65 ILCS 5/11-13-3.1));

oo. granting a zoning variation when a zoning hearing officer is used to hold hearings on

variations and special uses and the hearing officer recommends a denial, but an ordinance

is passed granting the variation or special use, notwithstanding the negative

recommendation (two-thirds favorable vote of all trustees (65 ILCS 5/11-13-14.1(C));

pp. overriding a veto (two-thirds of the aldermen or trustees then holding office (65 ILCS

5/3.1-40-50));

qq. amending zoning regulations imposed (both the text and map) and districts created, but

only after a written protest (petition signed by 20 percent of certain adjacent landowners)

has been filed with the clerk and served on the applicant (two-thirds vote of the trustees

then holding office (65 ILCS 5/11-13-14));

rr. amending zoning regulations if made within six months after an official plan was adopted

(two-thirds vote of the corporate authorities then holding office (65 ILCS 5/11-13-3.1));

ss. amending zoning regulations for setback lines along streets, drives, traffic ways,

parkways, or storm or floodwater runoff channels (two-thirds favorable vote of the

members of board of trustees then holding office (65 ILCS 5/11-14-3)); and

tt. when a zoning hearing officer is used, passing an ordinance adopted to grant a special use

notwithstanding a recommendation of denial by the hearing officer (two-thirds favorable

vote of the trustees (65 ILCS 5/11-13-14.1(C)).

NOTE: Approving a special use that fails to receive the approval of a recommendatory body

requires the favorable majority vote of all aldermen, commissioners, or trustees and can, by

ordinance, be made to require a vote of two-thirds of the aldermen, commissioners, or trustees

then holding office. Local ordinances can impose extra-majority vote requirements for special

uses granted after a recommendation of denial by a zoning board of appeals. 65 ILCS 5/11-13-

1.1.

2. [3.36] Method of Voting

In the voting on all ordinances and on all resolutions or motions creating liabilities or for

expenditures, the yeas and nays of each member must be taken and recorded in the minutes of the

council. 65 ILCS 5/3.1-40-40. The ordinance will be void if the yeas and nays are not recorded in

the minutes or in some other official manner. People ex rel. Anderson v. Chicago & North

Western Ry., 396 Ill. 466, 71 N.E.2d 701 (1947); Village of Bourbonnais, Illinois v. Herbert, 86

Ill.App.2d 367, 229 N.E.2d 574 (3d Dist. 1967); Village of Mettawa v. Carruthers, 175 Ill.App.3d

772, 530 N.E.2d 537, 125 Ill.Dec. 379 (2d Dist. 1988). But see City of Lewistown v. Braden, 9

Ill.2d 620, 138 N.E.2d 504 (1956); Bigham v. City of Rock Island, Illinois, 120 Ill.App.2d 381,

256 N.E.2d 897 (3d Dist. 1970). In addition, the official copy of the ordinance itself should list

the names of all persons voting and how they voted. Many ordinances, particularly appropriation

ordinances, have been declared invalid upon objection because the yeas and nays were not taken

or the clerk failed to record specifically the names of those voting yea and those voting nay. The

council cannot conduct any votes by secret sealed ballot even if the process is conducted at a

public meeting. WSDR, Inc. v. Ogle County, 100 Ill.App.3d 1008, 427 N.E.2d 603, 56 Ill.Dec.

408 (2d Dist. 1981).

The Illinois courts have begun to deal with issues regarding meetings, voting, and electronic

aids. In Freedom Oil Co. v. Illinois Pollution Control Board, 275 Ill.App.3d 508, 655 N.E.2d

1184, 211 Ill.Dec. 801 (4th Dist. 1995), a case of first impression, the Fourth District Appellate

Court found that the Illinois Pollution Control Board could hold a public meeting at which two of

its members were physically present while four were present over a speakerphone hookup with

the common voice contents of the meeting being available at offices in several places in the state.

The court found that since it would not have been a violation of the Open Meetings Act for a

majority of a quorum of members of a public body to hold a conference call, this same act, if

conducted in a manner otherwise in accordance with the Act, would be valid. The appellate court

construed the same provisions of the Open Meetings Act that apply to municipalities.

Freedom Oil is the first effort in Illinois to examine the relationship between modern

communication techniques and public meetings. After years of failed initiatives, the General

Assembly has finally weighed in and provided direction on the matter, ushering in the technology

age by accommodating local public officials (the amendment would not apply to certain statewide

entities) who are unable to attend a given meeting in person. As noted in §3.20 above, as of this

writing, S.B. No. 585, which would broaden the Open Meetings Act’s definition of “meeting” to

encompass certain electronic assemblages, had passed both chambers of the General Assembly

and is awaiting the Governor’s signature. Once signed into law, S.B. No. 585 will subject

“contemporaneous interactive communication[s]” between public officials, including video and

audio conferences, teleconferences, e-mail, chat rooms, and instant messaging, to Open Meetings

Act strictures. With respect to voting, S.B. No. 585 would authorize public officials to “attend,”

participate, and vote in public meetings via audio or video conference from remote locations in

the event of illness, infirmity, business, or emergency, insofar as they provide proper advance

notice and garner the permission of a majority of the physically present attendees. Localities

would be permitted to devise rules implementing these provisions.

When a roll call vote is not required by statute, a voice vote is sufficient. Even when a voice

vote is permissible, at the request of any alderman, the yeas and nays must be taken in the passage

of any resolution or motion and recorded in the minutes. 65 ILCS 5/3.1-40-40; Roti v.

Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983).

Any matter not involving the adoption of an ordinance for whatever purpose or a resolution

or motion creating a liability against the municipality or requiring the expenditure or

appropriation of money or any other matter not required by statute to receive any particular vote

may be adopted by a simple majority of the quorum. For example, suppose a motion is proposed

“BE IT MOVED, that the Mayor’s appointment of Ancel, Glink to serve as the municipal

attorney be concurred in by the city council.” How many votes are required to pass this motion?

Assume the council is composed of fourteen aldermen and a mayor. Only seven aldermen and the

mayor are present. This number is sufficient for a quorum to do business. Four aldermen vote

“yea,” and three vote “nay.” Since four is a majority of the aldermen present, the motion is

passed. In other words, since in this instance the mayor does not vote, the simple majority vote of

the aldermen present is sufficient to pass the motion.

3. [3.37] Omnibus Voting

65 ILCS 5/3.1-40-40 permits Illinois municipalities to streamline their voting procedures by

the use of an omnibus vote. By unanimous consent, usually recorded in a motion, the corporate

authorities may agree to take a single vote by yeas and nays on the question of the passage of two

or more designated ordinances, orders, resolutions, or motions. The items that have been placed

together for voting purposes are to be entered into the minutes under the designation “omnibus

vote,” and the names of the members and their votes on the total package of items are to be

recorded. Then each of the items covered by the omnibus vote is to be listed separately thereafter

with the designation “omnibus vote” or “consent agenda” following the item. Although the vote

to establish the omnibus vote must be unanimous, the single vote on the items themselves need

not be unanimous. Care should be taken that any item that requires a vote higher than a majority

of a quorum is not placed within a grouping of items unless the single vote expected to be

received is sufficient to pass this item. When any item requires a supermajority, the mayor is

entitled to vote in communities in which the mayor votes in these instances.

4. [3.38] Refusal To Vote

An alderman is not required to vote on a motion, resolution, or ordinance. The alderman’s

failure to vote will not invalidate a resolution or motion that does not require the affirmative vote

of a particular percentage of the corporate authorities when the majority of those exercising their

franchise are in favor of the motion or resolution. In Launtz v. People ex rel. Sullivan, 113 Ill. 137

(1885), the court held that when a quorum is present and the approval of an officer’s bond is

properly proposed, the bond will be considered approved if the officer receives a majority of the

votes of those who do vote even though a majority of the members of the council abstain from

voting.

A similar result was reached when the Illinois Supreme Court considered the effect of a

trustee’s failure to vote on a proposed ordinance. In Prosser v. Village of Fox Lake, 91 Ill.2d 389,

438 N.E.2d 134, 63 Ill.Dec. 396 (1982), the court analyzed whether the failure of an elected

trustee to vote on proposed ordinances during a meeting at which he was presiding as acting

president constituted concurrence with the action taken by the majority of those voting. The

proposed ordinances established the rate of compensation for the village president and trustees.

The statute in effect at the time, former Ill.Rev.Stat. (1979), c. 24, ¶3-11-17, had required the

concurrence of a majority of all board members then holding office for the ordinances to pass.

Three of the six trustees then holding office voted in favor of the ordinance; one trustee voted

against it; one trustee was absent; and the trustee who was acting village president abstained. The

lawsuit was filled by a trustee who alleged that the ordinances were not properly enacted because

three votes in favor of the ordinance did not constitute the concurrence of a majority.

The Prosser court distinguished between statutes that require ordinances to be enacted by

affirmative vote of the majority and those that merely require the concurrence of the majority.

The court stated that if an affirmative vote was required, nothing less than a majority of yea or

aye votes will result in enactment The court held, however, that if a concurrence of the majority is

required, the failure of a trustee to vote when present constitutes an acquiescence or concurrence

with the members of the majority who did vote on the question involved. Because the acting

president did not vote in his trustee’s capacity, his abstention was treated as an acquiescence to

the action taken by the majority. As a result, the abstaining trustee’s vote was counted with the

voting majority and resulted in a majority of all members of the board then holding office. The

court concluded that the two ordinances had been properly enacted This court-imposed rule of

procedural interpretation, which has come to be known among municipal lawyers as “the Prosser

rule,” was affirmed in Lake County Forest Preserve District v. Northern Trust Bank/Lake Forest,

N.A., 207 Ill.App.3d 290, 565 N.E.2d 715, 152 Ill.Dec. 182 (2d Dist. 1990), in which a park

district board president failed to vote and then ruled that the particular motion had failed for lack

of a majority. See also Kurt P. Froehlich, Effect of Council Members Voting “Abstain,” “Pass,”

or “Present,” 59 Ill.Mun.Rev. 15 (June 1980).

The Prosser court held that every instance in which an alderman or trustee was present and

did not vote must effectively count as either a yea or a nay vote. Whenever such an abstention,

passed vote, or refusal to vote takes place, the clerk (perhaps with the help of the municipal

attorney) must decide whether the vote should have the effect of a yea or a nay. In most cases, the

vote will be counted as adding to whichever side had the most votes on the question, whether yea

or nay. When a statute or local ordinance actually requires the affirmative vote of the majority, an

abstention will be counted as a nay vote. Although the Prosser court did not deal specifically with

the issue, one can only assume that when there is a tie vote with an abstention or abstentions,

these votes will be counted as nay votes since the measure will fail on a tie vote. The authors

advise clerks to list abstention votes in the minutes but then to show whether these votes have

been given the effect of an aye or nay.

The Prosser rule has been criticized by some municipal attorneys because the state statutory

scheme does not always distinguish between a “concurrence” and an “affirmative” vote of the

majority. In County of Kankakee v. Anthony, 304 Ill.App.3d 1040, 710 N.E.2d 1242, 238 Ill.Dec.

140 (3d Dist. 1999), the court dealt directly with a statutory scheme that only required “a simple

majority” vote, or 15 of 28 of the elected members of the county board. In this instance, the court

reasoned that the Prosser rule was not applicable. Therefore, the court relied on traditional

statutory construction to find that an abstention, or vote of “present,” cannot be given any legal

consequence besides contributing to a quorum. Hence, when 14 members voted in favor, 11

members voted against, one member abstained and two members were absent, the ordinance did

not receive the necessary support from the board to be adopted. This is in direct contrast to the

result under Prosser in which the result would be counted as 15 ayes and 11 nays. Based on this

conclusion, it seems that when a statute fails to specify whether a concurrence or an affirmative

vote is required, members wishing to abstain cannot have their “votes” credited towards the

proponents or opponents of an ordinance, resolution, or motion.

The Illinois Municipal Code allows elected or appointed members of the governing bodies of

municipalities to provide materials, merchandise, property, services, or labor to the municipalities

they serve as officers under certain rigidly specified conditions. 65 ILCS 5/3.1-55-10(b), 5/3.1-

55-10(b-5), 5/4-8-6(b), 5/4-8-6(c). One of the conditions is that the interested member abstains

from voting on the award of the contract, although this member would be considered present for

the purposes of establishing a quorum. 65 ILCS 5/3.1-55-10(b)(E), 5/3.1-55-10(b-5)(4), 5/4-8-

6(b)C, 5/4-8-6(c)E. Since the creation of liability against a municipality requires the concurrence

of a majority of all members then holding office, the interesting question is whether the

abstention would, as in other instances, be counted with the prevailing side. A better practice is

for the official to recuse himself or herself from the vote, in which case the vote will clearly not

be counted. Recusal indicates a stronger desire not to act, as opposed to abstention.

An ordinance that requires council members to vote either aye or nay on a measure may be

held to violate the council member’s First Amendment rights under the U.S. Constitution. In

Wrzeski v. City of Madison, Wisconsin, 558 F.Supp. 664 (W.D.Wis. 1983), the court granted a

preliminary injunction enjoining the enforcement of an ordinance that subjected city council

members to censure and fines if they chose to abstain from voting on any question that came

before the city council on the grounds that it violated the council members’ First Amendment

rights.

5. [3.39] The Mayor’s or President’s Right To Vote

When does the mayor or president vote? Although the mayor or president does not ordinarily

vote in most Illinois forms of municipal government, he or she may do so on three occasions: (a)

when the vote of the aldermen or trustees has resulted in a tie; (b) when one half of the aldermen

or trustees elected have voted in favor of an ordinance, resolution, or motion even though there is

no tie vote; or (c) when a vote greater than a majority of the corporate authorities is required by

state statute or local ordinance to adopt an ordinance, resolution, or motion. 65 ILCS 5/3.1-40-30.

For many years, the mayor or president was required to vote in these three cases. Section 3.1-40-

30, unlike the prior statute (former 65 ILCS 5/3-11-14), does not contain a provision requiring the

mayor or president to vote in these instances. The authors have advised their clients that this was

such a clear change from the language of the prior statute that the deletion of these words should

be interpreted as a direction to change the obligation to vote into a mere option to vote. Of course,

a court could hold that in the absence of clear legislative history pointing to an intent to change

the law, the prior interpretation will prevail and the mayor still must vote.

In municipalities operating under the manager form of government in which aldermen are

elected by wards or trustees by districts, the mayor or president may vote only in those three

instances set forth above. In all cities and villages operating under the commission form of

government and in those communities operating under the manager form in which aldermen or

trustees are elected at large, the mayor or president may vote on all issues. 65 ILCS 5/5-3-5.

A mayor or president may not vote when a vote is being taken to override a veto since an

override requires a greater-than-majority vote of the aldermen and trustees, not the corporate

authorities. Ketchmark v. Lynch, 107 Ill.App.2d 36, 246 N.E.2d 133 (3d Dist. 1969). Even when

the issue is the confirmation of an appointment made by the mayor or a vote to amend the

council’s rules, the mayor may vote in order to break a tie, and the mayor’s participation in the

process in both an executive and a legislative capacity does not violate the separation of powers

doctrine. People ex rel. Maness v. Courson, 113 Ill.App.3d 841, 448 N.E.2d 6, 69 Ill.Dec. 711 (3d

Dist. 1983); Roti v. Washington, 148 Ill.App.3d 1006, 500 N.E.2d 463, 102 Ill.Dec. 570 (1st Dist.

1986). For example, assuming a council is composed of fourteen aldermen and the mayor, all

members are present, and seven of the members vote in favor of a motion and seven vote against

it, the mayor may vote since the vote has resulted in a tie. The court’s decision in Prosser v.

Village of Fox Lake, 91 Ill.2d 389, 438 N.E.2d 134, 63 Ill.Dec. 396 (1982), indicates that even if

the mayor does not fulfill the legislative responsibility to vote, the courts may ascribe some effect

to the mayor’s presence at the meeting and count his or her vote one way or the other. See also

Lake County Forest Preserve District v. Northern Trust Bank/Lake Forest, N.A., 207 Ill.App.3d

290, 565 N.E.2d 715, 152 Ill.Dec. 182 (2d Dist. 1990).

In the cases discussed above, if only a majority of the quorum is required in order to adopt a

resolution or motion (but not an ordinance) that does not create a liability or involve the

expenditure of money, then the resolution or motion, in case of a tie vote, will be considered

adopted if the mayor votes yea or not adopted if the mayor votes nay. Siegel v. City of Belleville,

349 Ill. 240, 181 N.E. 687 (1932); Launtz v. People ex rel. Sullivan, 113 Ill. 137 (1885).

Suppose that at a meeting of a council containing fourteen aldermen, one member is absent,

seven members vote in favor of a proposed ordinance, and six vote against it. As one half of the

aldermen elected to the council have voted in favor of the ordinance, the mayor may vote even

though there is no tie. In this case, the mayor’s vote can either bring about the passage of the

ordinance with the required eight votes or tie the vote at seven to seven and thus defeat passage.

The reason for this rule can easily be seen. If the mayor can vote in case of a tie, then the mayor’s

ability to vote would be frustrated if, anticipating a tie vote that the mayor would break in favor

of one faction, a member of the other faction leaves the council chamber prior to the vote. Since

the mayor votes when one half of the council has voted in favor of a proposition even if there is

no tie, it would not matter if the entire losing side left the room.

Suppose at a meeting of the fourteen-member council only eight members are present, four

members vote yea on a proposition, and four vote nay. The mayor may vote even though the

ordinance, resolution, or motion requires the concurrence of a majority of all the members elected

to the city council (65 ILCS 5/3.1-40-40) or eight yea votes. In other words, even though in some

cases the vote of the mayor will be of no effect in the passage or failure of an ordinance, the

mayor may cast a vote.

If a motion is made to adopt an ordinance with a statement of urgency in its preamble or

body, the ordinance requires a two-thirds vote of the corporate authorities in order for it to take

effect immediately. 65 ILCS 5/1-2-4. In this case, as in the case of all other motions, resolutions,

or ordinances required by statute to receive more than a majority vote of the corporate authorities,

the mayor may vote even though the addition of the mayor’s vote may not be enough to achieve

the required two-thirds vote.

P. [3.40] Approval and Veto of Ordinances, Resolutions, and Motions

65 ILCS 5/3.1-40-45 provides as follows:

All resolutions and motions (i) that create any liability against a city, (ii) that

provide for the expenditure or appropriation of its money, or (iii) to sell any city or

school property, and all ordinances, passed by the city council shall be deposited

with the city clerk. Except as provided in Articles 4 and 5 of this Code, if the mayor

approves an ordinance or resolution, the mayor shall sign it. Those ordinances,

resolutions, and motions which the mayor disapproves shall be returned to the city

council, with the mayor’s written objections, at the next regular meeting of the city

council occurring not less than 5 days after their passage. The mayor may

disapprove of any one or more sums appropriated in any ordinance, resolution, or

motion making an appropriation, and, if so, the remainder shall be effective.

However, the mayor may disapprove entirely of an ordinance, resolution, or motion

making an appropriation. If the mayor fails to return any ordinance or any

specified resolution or motion with his written objections within the designated time,

it shall become effective despite the absence of the mayor’s signature.

From the foregoing language, it should be noted that the mayor has the power to veto all

ordinances without regard to their subject. The mayor also has the power to veto certain

resolutions and motions. Merely because a resolution involves an important subject does not

convert it into an ordinance that requires the mayor’s approval and is subject to veto. Roti v.

Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983). It has been held

that an ordinance not approved by the mayor cannot be effectively published until the time for

veto has expired (i.e., the next regular meeting not less than five days after the passage of the

measure). The mere passage of five days after presentation is not sufficient, and an earlier

publication is of no effect. City of Hillsboro v. Spangler, 146 Ill.App. 115 (3d Dist. 1908). The

president of a village may exercise the same veto power, with like effect, as the mayor of a city.

The statutory veto power is strictly construed and encompasses only matters that are

expressly set forth by statute. Roti, supra. Under the manager form of government, the mayor or

president retains the above-enumerated powers. 65 ILCS 5/5-3-2. However, note that the Illinois

Municipal Code provides that certain manager-form mayors may vote on all questions and have

no power to veto “[i]n cities which do not elect to choose aldermen from wards and in cities

which elect to choose Councilmen as provided in Sections 5-2-18.1 thru 5-2-18.7.” 65 ILCS 5/5-

3-1. Under the commission form, the mayor has no right of veto but must sign every resolution,

ordinance, or warrant passed by the council. 65 ILCS 5/4-5-12. It has been held that this

requirement is directory only and that failure of a commission-form mayor to sign an ordinance

that was passed in substantial compliance with the statutory requirements will not invalidate the

ordinance. Wheeling Trust & Savings Bank v. City of Highland Park, 97 Ill.App.3d 519, 423

N.E.2d 245, 53 Ill.Dec. 53 (2d Dist. 1981).

If the mayor vetoes an ordinance or a resolution or motion susceptible to veto, the council,

upon the receipt of the mayor’s written objections, shall reconsider it at the next regular meeting.

The court in Village of East Galesburg v. Ennis, 190 Ill.App.3d 112, 545 N.E.2d 1375, 1377, 137

Ill.Dec. 360 (3d Dist. 1989), held that the requirement that the mayor return “written objections”

does not mean that “reasons” for the veto must be returned in writing, but only that the fact that

the veto was made must be reduced to writing. The council or board must act to override the veto

at the next regular meeting following the regular meeting at which the council or board receives

the mayor’s written objections. This matter was clarified by the amendment of 65 ILCS 5/3.1-40-

50 by P.A. 91-489 (eff. Jan. 1, 2000). This provision is probably sensible since, until the mayor

delivers the written veto message, the council members do not know whether it is essential to

have sufficient members present to move to override the veto. By choosing the following

meeting, the legislature has seen to it that the council members do not have their power lessened

by a last-minute and unsuspected veto. If, after reconsideration, two thirds of all the aldermen

then holding office agree to pass the ordinance, resolution, or motion over the mayor’s veto, then

it shall be effective. It should be pointed out that the required vote is based on two thirds of those

aldermen or trustees then holding office. Thus, any vacancy in a council or aldermanic seat is not

counted in the computation of the percentage vote required. The vote on the question of passage

over the veto is by yeas and nays and must be recorded in the journal (minute book). In villages,

the trustees may pass motions, resolutions, and ordinances over the president’s veto in a like

manner. 65 ILCS 5/3.1-45-15. Under the managerial form, the aldermen and trustees possess the

same powers to override a veto. 65 ILCS 5/5-3-3.

By parliamentary rule, the proper action to be taken by the council at its next regular meeting

after a measure adopted by it has been returned to it with a veto is first to move to reconsider the

vote by which the measure was originally adopted. If a majority of the quorum adopts the motion

to reconsider, it is then proper to move that the measure be adopted notwithstanding the veto or

that it be passed over the veto. If two thirds of the aldermen then holding office vote in favor of

that motion, the measure is adopted; if not, the veto stands. The failure to reconsider an ordinance

in this formalistic manner, however, will not render invalid council actions when there has been

compliance generally with the stated rule and when there has been the required two-thirds vote.

Rogers v. City of Mendota, 200 Ill.App. 254 (2d Dist. 1916); Ketchmark v. Lynch, 107 Ill.App.2d

36, 246 N.E.2d 133 (3d Dist. 1969). The reconsideration by a council of an ordinance vetoed by

the mayor relates back to the date of the original passage of the ordinance for the purpose of

determining whether the enactment was timely in terms of a statutory requirement that the

ordinance be passed at a particular time within the fiscal year. Fairfield v. People ex rel. McCrea,

94 Ill. 244 (1879).

Q. [3.41] Reconsideration of Actions

A council may reconsider its votes and actions on questions before it and rescind its previous

action. People ex rel. MacMahon v. Davis, 284 Ill. 439, 120 N.E. 326 (1918). This rule is subject

to certain exceptions:

1. 65 ILCS 5/3.1-40-55 provides, “No vote of the city council shall be reconsidered or

rescinded at a special meeting unless there are present at the special meeting at least as many

aldermen as were present when the vote was taken.”

2. When the council has formally voted on a proposition and there is no motion for

reconsideration, the council may not reconsider its action after adjournment of the meeting if

rights of other persons have intervened. City of Kankakee v. Small, 317 Ill. 55, 147 N.E. 404

(1925).

3. A city council cannot reverse its initial decision to accept or reject the recommendation of

an advisory body that was required to hold a public hearing without ordering another public

hearing, especially when the decision to reconsider is motivated by evidence and information not

presented at the first public hearing. Ceresa v. City of Peru, 133 Ill.App.2d 748, 273 N.E.2d 407

(3d Dist. 1971).

4. When parliamentary practice limits when and by whose motion a vote may be

reconsidered (e.g., many rules of procedure limit reconsideration to a motion made by a member

who voted on the prevailing side of the first consideration of the matter), the council may not

reconsider without complying with these limitations.

5. When the right of a third party has intervened and the council seeks to reconsider its

previous action based on an erroneous legal view, the courts may not recognize the validity of the

reconsideration. Monge v. City of Pekin, 245 Ill.App.3d 622, 614 N.E.2d 482, 185 Ill.Dec. 348

(3d Dist. 1993); International Society for Krishna Consciousness, Inc. v. City of Evanston, 53

Ill.App.3d 443, 368 N.E.2d 644, 11 Ill.Dec. 93 (1st Dist. 1977). Once a contract has been

approved and has come into being, for example, the city council or village board may not repeal

its approval and authorization and consequently deprive a third party of his or her vested

contractual rights. Once constitutional or statutory rights have vested in a third party as a result of

the council’s or board’s original action, a repeal of the ordinance, reconsideration, or other form

of rescinding the prior ordinance is foreclosed.

In order to bring near finality to a controversial ordinance, resolution, or motion, it is

suggested that immediately after its adoption, when a sufficient plurality exists, a motion should

be made and seconded by members who voted in favor of the prevailing side to reconsider the

vote. As those who just voted with the prevailing side would usually vote against reconsideration,

the motion would be lost, and under many rules of procedure, the matter would thereupon be

closed.

Depending on the particular rules of procedure adopted by a municipality, a matter once

disposed of nonetheless can be proposed again at some later time either by a motion to rescind or

by phrasing it as a new motion If a motion is continuously brought before a body and rejected, the

chair eventually may rule its reintroduction out of order. It is up to the mayor or president to

decide whether a matter should be considered again so soon after its prior consideration. If the

mayor or president rules the motion out of order, the council or board can move to override the

decision of the chair.

R. [3.42] Right of the Public To Inspect Records — Freedom of Information Act

Collectively, the Open Meetings Act and the Freedom of Information Act are known as the

“sunshine laws” because they require public business to be open and accessible. The FOIA

establishes the minimum rights of the public to inspect an enormously wide range of documents.

The FOIA begins with an unusually lengthy and dramatic preamble that sets out the broad policy

of the legislation. 5 ILCS 140/1. The Illinois Supreme Court has cautioned, however, that this

declaration of policy is not part of the FOIA itself and has no substantive legal force or effect.

Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 680 N.E.2d 374, 380,

223 Ill.Dec. 641 (1997). Nonetheless, although a number of statements set forth in the preamble

are not substantially fleshed out in the body of the FOIA, the courts have relied on this broad

policy language in interpreting the FOIA. Several items mentioned in the preamble, however, are

actually beneficial to municipalities concerned that governments turned over to ardent researchers

and conducted in a fishbowl environment will not be able to carry out the needed business of their

citizens. However, while the FOIA has been in effect for a substantial amount of time, few

municipalities have been inundated with FOIA requests.

Newspapers and other groups have continuously sought to broaden the scope of the FOIA,

narrow its exemptions, and increase penalties for violations. Some of these efforts have

succeeded in modest amendments to the FOIA.

Sections 3.43 – 3.74 below serve, in question and answer form, as a guide to the FOIA.

1. [3.43] What Is the Effective Date of the FOIA, and Why Does It Matter?

The Freedom of Information Act became effective on July 1, 1984. The appellate courts have

held, however, that the FOIA applies to all disclosure requests initiated after its effective date,

even if the requested records were prepared or received prior to this date. Carrigan v. Harkrader,

146 Ill.App.3d 535, 496 N.E.2d 1213, 100 Ill.Dec. 148 (3d Dist. 1986). Since its effective date,

the provisions of the FOIA have governed the minimum standards by which cities and villages

make or are required to make available materials from their files to any person. “Person,” is

defined in the FOIA to mean any individual, corporation, partnership, firm, organization, or

association acting individually or as a group. 5 ILCS 140/2(b).

Curiously, the enactment of the FOIA did not lead to the repeal of §3a of the Local Records

Act, 50 ILCS 205/1, et seq. (50 ILCS 205/3a), which requires governmental bodies to make

financial records available to citizens. In fact, §15 of the Local Records Act states that the

provisions of §3a shall continue to apply to all records and reports prepared or received prior to

July 1, 1984, and that for all records and reports prepared or received after July 1, 1984, the FOIA

will apply. 50 ILCS 205/15. It would thus appear that only financial records prepared or received

prior to July 1, 1984, remain covered by the rather crude provisions of §3a. While §3a of the

Local Records Act allows a keeper of these records to require that a notice in writing be

submitted 24 hours prior to inspection, it does not set forth any judicial procedures for contesting

a denial, and neither is the keeper of the records required to give a specific reason for a denial.

Section 3a also contains language to the effect that its disclosure aspects were not intended “to

invade or assist in the invasion of any person’s right to privacy.” This language was greatly

expanded in the FOIA. As with many other aspects of the FOIA, it still remains to be seen

whether the courts will permit records that could be requested under §3a of the Local Records Act

to be requested also under one of the provisions of the FOIA. Accord Pecora Oil Co. v. Johnson,

156 Ill.App.3d 521, 509 N.E.2d 495, 108 Ill.Dec. 799 (2d Dist. 1987).

2. [3.44] What Is the Basic Structure of the FOIA?

The Freedom of Information Act contains 11 substantive sections. As noted in §3.42 above,

§1 of the FOIA (5 ILCS 140/1) sets forth the philosophy of the Act. Section 2 of the FOIA

defines six terms, the most important being “public records” itself. See 5 ILCS 140/2(c). Section

3 of the FOIA begins with the basic statement that all public records not exempt under 5 ILCS

140/7 must be made available for inspection or copying (5 ILCS 140/3(a)) and then proceeds to

describe the time schedule under which the records must be furnished and the circumstances

under which extensions may be allowed (5 ILCS 140/3(c), 140/3(d)). Section 4 of the FOIA (5

ILCS 140/4) requires public bodies to prepare, display, make available, and send through the

mail, if requested, a brief description of the public body, including a block diagram of its

functional subdivisions; certain financial material; the methods whereby the public may request

information and public records; and any fees payable for these records. Section 5 of the FOIA (5

ILCS 140/5) obligates each public body to prepare a reasonably current list of all types or

categories of records under its control that were prepared or received after July 1, 1984. Section 6

of the FOIA establishes the fees that may be charged and limits them to the actual costs for

reproducing and certifying but does not include the expenses of staff time. 5 ILCS 140/6(a).

Section 7 contains a lengthy list of exemptions, many of which are taken nearly directly from the

language of the federal Freedom of Information Act, 5 U.S.C. §552. For this reason, federal case

law interpreting parallel provisions can be helpful. See Harwood v. McDonough, 344 Ill.App.3d

242, 799 N.E.2d 859, 279 Ill.Dec. 56 (1st Dist. 2003). The exemptions have been modified and

expanded to deal specifically with certain matters for which case law has enlarged, contracted, or

clarified the scope of language contained within the federal FOIA.

Section 8 of the FOIA (5 ILCS 140/8) obligates the public body to delete any exempt

material that is contained within nonexempt material and to make this nonexempt material

available for inspection and copying. Section 9 of the FOIA requires the public body to notify by

letter the person whose request has been rejected and to state the specific grounds under which

the request was denied. 5 ILCS 140/9(a). Section 10 of the FOIA establishes a nonjudicial appeal

procedure whereby a person who has been denied access to a record may appeal this decision to

the “head of the public body,” who is directed to promptly review the public record and reach a

decision on the appeal within seven working days of the filing of the notice of appeal. 5 ILCS

140/10(a). If the original denial is affirmed in whole or in part, the head of the public body must

explain, in a written decision, the exemption or other reason relied on for a denial, along with the

requester’s right of judicial review. Id.

Section 11 of the FOIA permits a suit for injunctive or declaratory relief to be brought if the

nonjudicial appeal is unsuccessful or if the response to this appeal is not timely. 5 ILCS

140/11(a). The action will be heard by the circuit court of the county in which the public body is

located or in which the person denied access resides and will be heard as a matter de novo,

meaning anew and not on the record from the local appeal process, on an expedited schedule. 5

ILCS 140/11(b), 140/11(c). If the plaintiff substantially prevails, the court may award this person

reasonable attorneys’ fees. 5 ILCS 140/11(i). If the court finds that the fundamental purpose of

the request was to further the commercial interests of the requestor, however, the court may

award attorneys’ fees and costs only if the record or records in question were of clearly

significant interest to the general public and the public body lacked any reasonable basis in law

for withholding the record. Id.

In Lieber v. Board of Trustees of Southern Illinois University, 316 Ill.App.3d 266, 736 N.E.2d

213, 249 Ill.Dec. 371 (5th Dist. 2000), the appellate court discussed the requirements for

awarding attorneys’ fees under the FOIA. The Lieber court explained that a plaintiff is entitled to

an award of attorneys’ fees only if the plaintiff shows that (a) he or she substantially prevailed,

(b) the records were of clearly significant interest to the general public, and (c) the public body

lacked any reasonable basis for withholding the records. 736 N.E.2d at 216. The burden of proof

rests with the plaintiff, and if the plaintiff fails to show any of these elements, he or she cannot

recover attorneys’ fees. Even though the plaintiff in Lieber substantially prevailed and showed

that the university had no valid basis for withholding the requested information, the court ruled

that he was not entitled to recover his attorneys’ fees because he failed to show that the requested

information was of clearly significant interest to the general public. In determining that the

plaintiff failed to prove the third element of the attorneys’ fees test, the court considered the

plaintiff’s purpose in requesting the records. Because his primary purpose was to promote his

own commercial interests, he was not entitled to an award of attorneys’ fees.

Lieber may be of limited value because of legislation passed by the Illinois General

Assembly that amends §11(i) of the FOIA to authorize courts to award attorneys’ fees to most

claimants as long as they substantially prevail in proceedings brought pursuant to the FOIA. See

P.A. 93-466 (eff. Jan. 1, 2004). If, however, the court finds that the fundamental purpose of a

request is to further the requestor’s commercial interests, the court may award attorneys’ fees

only if it also finds that the record in question is of clearly significant interest to the general

public and that the public body lacks any reasonable basis in law for withholding the record. P.A.

93-466 established that the three-pronged test set forth in Lieber applies only to claimants who

request information from public bodies for fundamentally commercial purposes. For all other

claimants, the burden of proof is lowered, and they need prove only that they substantially

prevailed in their claims in order for a court to award attorneys’ fees.

3. [3.45] What Is a Public Body?

The definition of a “public body” in §2(a) of the Freedom of Information Act (5 ILCS

140/2(a)) is almost identical to the definition of “public body” found in §1.02 of the Open

Meetings Act (5 ILCS 120/1.02). As far as municipalities are concerned, the village board, city

council, and any other boards, commissions, and committees required to comply with the Open

Meetings Act must also comply with the FOIA. In addition to their corporate authorities, boards,

and committees, all municipal corporations themselves and any subsidiary bodies of the abovementioned

entities are subject to the FOIA. 5 ILCS 140/2(a).

The factors used in determining whether an entity is a subsidiary body were set forth in

Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64

Ill.App.3d 94, 380 N.E.2d 1192, 21 Ill.Dec. 16 (2d Dist. 1978). The courts will consider the legal

nature of the entity, the degree of direct governmental control over the entity’s officers and

employees, the nature of the functions performed by the entity, and the amount of public funds

that it uses. See also Hopf v. Topcorp, Inc., 256 Ill.App. 3d 887, 628 N.E.2d 311, 194 Ill.Dec. 814

(1st Dist. 1993). Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778, 709 N.E.2d

1281, 237 Ill.Dec. 568 (1st Dist. 1999), provided an unusual opportunity for the appellate court to

expand coverage of the term “public body.” In order to condone the city’s practice of having each

city department keep a file of notices of denials of FOIA requests rather than maintaining them in

a “single central office file,” which is required under §9(b) of the FOIA (5 ILCS 140/9(b)), the

court found that the individual departments within the city’s government were themselves

subsidiary bodies of the city and therefore public bodies as defined by the FOIA. Moreover, each

department was city-funded and city-controlled and was “individually subject to the mandates of

the FOIA.” 709 N.E.2d at 1287. In that each such department was a subsidiary body, the file it

kept of denial notices could be deemed as the central office file for that department, thus saving

the city from having to maintain one central file for the entire city government operation. This

interpretation enabled the court to rule that the city was in compliance when each department

maintained its own central office file of the FOIA denials. Any interpretation to the contrary

would have resulted in a finding that the city had violated the FOIA. Duncan is undoubtedly

helpful to public bodies, especially ones that, due to their size or structure, have numerous

departments.

In Copley Press, Inc. v. Administrative Office of Courts, Nineteenth Judicial Circuit, 271

Ill.App.3d 548, 648 N.E.2d 324, 207 Ill.Dec. 868 (2d Dist. 1995), the court determined that

records of the pretrial services agency pertaining to the jail’s electronic monitoring system were

not subject to disclosure under the FOIA. This decision was based on the court’s ruling that the

agency was part of the judicial branch which, though governmental in nature, is not subject to the

FOIA. See also Op. Att’y Gen. (Ill.) No. 99-005, in which the Attorney General concluded that

the judicial branch is not subject to the FOIA, the Open Meetings Act, or the Illinois

Administrative Procedure Act, 5 ILCS 100/1-1, et seq.

Are individuals covered? The appellate court has ruled that a Chicago alderman (and

presumably other individual public officials) is not considered a “public body” and thus was not

required to disclose his travel expense records. Quinn v. Stone, 211 Ill.App.3d 809, 570 N.E.2d

676, 156 Ill.Dec. 200 (1st Dist.), appeal denied, 141 Ill.2d 559 (1991).

In Op. Att’y Gen. (Ill.) No. 99-021, the Attorney General addressed whether DuPage Public

Safety Communications (Du-Comm), a centralized public safety communications system agency

created by seven municipalities in 1975 to provide police and fire dispatching services to its

members, is subject to the Local Records Act. The Attorney General determined that Du-Comm

is a joint operation of its member municipal corporations, even though it was not created as a

separate governmental entity; therefore, it is a part of each municipal corporation that created it,

and it is consequently an “agency” as defined in §3 of the Local Records Act (50 ILCS 205/3).

Under the same reasoning, similar agencies would likely be viewed as public bodies under the

FOIA and thus subject to the FOIA as well.

4. [3.46] How Is the Term “Public Records” Defined?

“Public records,” a term of art used throughout the Freedom of Information Act, is broadly

defined in §2(c) of the FOIA, which sets forth a definition containing 17 general synonyms: “all

records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs,

microfilms, cards, tapes, recordings, electronic data processing records, recorded information and

all other documentary materials.” 5 ILCS 140/2(c). Additionally, §2(c) includes a specific list of

public records that the FOIA covers but to which FOIA coverage is not expressly limited.

Although the general methodology of the FOIA is to define public records as expansively as

possible and to use the exemptions in 5 ILCS 140/7 to narrow the universe, these specific

examples contained within §2(c) do somewhat limit the scope of the all-inclusive definition. For

example, because §2(c)(ii) identifies “final opinions and orders made in the adjudication of cases”

as public records, the use of the word “final” automatically exempts a whole category of

preliminary documents that may be found within the filing cabinets of public bodies. Conversely,

§2(c)(xii) requires disclosure of “each report, document, study, or publication prepared by

independent consultants or other independent contractors for the public body.” It must be noted

that §2(c)(xii) does not use the word “final,” and neither does it use the phrases found in other

subsections that provide that the stated public records must be made available unless exempted in

§7. Of course, drafts of these documents in the files of the consultant have never reached the

municipality and should not constitute public records. In litigation under the FOIA, one of the key

tasks of attorneys attempting to limit the scope of the Act will be to show that the court never

needs to reach the issue of exemption because the document in question is not a public record to

begin with or, if it is, because it is preliminary in nature.

The preamble in 5 ILCS 140/1 relieves a public body of the burden of preparing a public

record in response to a request. Additionally, Illinois courts have addressed the issue of whether a

municipality must create a record not previously existing in order to satisfy a request. In Kenyon

v. Garrels, 184 Ill.App.3d 28, 540 N.E.2d 11, 132 Ill.Dec. 595 (4th Dist. 1989), the court ruled

that the plaintiff’s request for a letter answering questions rather than for specified records was

not a proper FOIA request because no existing record contained the answers and a new record

would have to be created to answer the request. Similarly, a public body is not required to furnish

records that have been lost. Workmann v. Illinois State Board of Education, 229 Ill.App.3d 459,

593 N.E.2d 141, 170 Ill.Dec. 599 (2d Dist. 1992). See also the discussion of Family Life League

v. Department of Public Aid, 132 Ill.App.3d 929, 478 N.E.2d 432, 88 Ill.Dec. 117 (1st Dist.

1985), rev’d, 112 Ill.2d 449 (1986), and Bowie v. Evanston Community Consolidated School

District No. 65, 128 Ill.2d 373, 538 N.E.2d 557, 131 Ill.Dec. 182 (1989), in §3.63 below.

On a related issue, the Illinois Supreme Court has noted that while a public body need not

prepare its records in a new format in response to a FOIA request, the record must be disclosed if

it is available in this form. In American Federation of State, County & Municipal Employees

(AFSCME) v. County of Cook, 136 Ill.2d 334, 555 N.E.2d 361, 144 Ill.Dec. 242 (1990), the

Supreme Court affirmed the trial court’s ruling that under the FOIA the county could not

substitute a computer printout for a requested computer tape without relying on an exemption.

In Copley Press, Inc. v. Administrative Office of Courts, Nineteenth Judicial Circuit, 271

Ill.App.3d 548, 648 N.E.2d 324, 207 Ill.Dec. 868 (2d Dist. 1995), the appellate court ruled that

the judicial branch is not subject to the disclosure requirements of the FOIA and that the pretrial

services agency at issue was an arm of the judicial branch; therefore, the plaintiff newspaper

company was not entitled to obtain documents pertaining to the agency’s electronic monitoring

system program that provided an alternative incarceration method. The court ruled that only those

records pertaining to such a program that have been disclosed in open court are accessible. Others

not so disclosed are shielded from access even under common law or the First Amendment. The

court observed that the judiciary is not specifically listed in the FOIA, unlike the various entities

of the legislative and executive branches. This clear statutory protection overrode the

newspaper’s interest in the requested documents that related to pending criminal proceedings and

contained background data of persons charged with felonies who were on pretrial release.

5. What Must a Municipality Do To Comply with the FOIA?

a. [3.47] Provide Data About the Municipality

Under the Freedom of Information Act, each municipality must prepare and maintain a brief

description of its functional subdivisions of government, the total amount of its operating budget,

the number and location of its separate offices, the approximate total number of full-time and

part-time employees, and information regarding the identification and membership of its boards,

commissions, committees, or advisory councils. 5 ILCS 140/4(a). The governmental body also

must prepare and maintain a brief description of the methods whereby the public may request

information and public records and a directory designating, by title and address, those employees

to whom requests for public records should be directed, as well as the fee structure established by

the municipality. 5 ILCS 140/4(b). A reasonably current list of all types or categories of records

under its control that were prepared or received after July 1, 1984, must also be available. 5 ILCS

140/5. The public entity may establish fees reasonably calculated to reimburse its actual costs for

reproducing and, when required, certifying public records. 5 ILCS 140/6(a). The legislature, in

P.A. 93-43 (eff. July 1, 2003), provided that the exemption conditioned on the reasonable

expectation of public loss or private gain does not extend to “computer geographic systems” if the

information is otherwise not exempt and when requested by a news medium for the sole purpose

of accessing and disseminating information regarding the health, safety, welfare, or legal rights of

the public. 5 ILCS 140/7(i).

Documents must be furnished without charge or at a reduced charge, as determined by the

public body, if the person requesting the records states the specific purpose for the request and

indicates that a waiver or reduction would be in the public interest. A waiver or reduction is in the

public interest if the principal purpose of the request is to access and disseminate information

regarding the health, welfare, and safety or the legal rights of the general public and is not for the

principal purpose of commercial or personal benefit. A presumption exists that any news media

request for information regarding health and safety is not for a commercial benefit. 5 ILCS

140/6(b). “News media” is defined by the FOIA as “a newspaper or other periodical issued at

regular intervals whether in print or electronic format, a news service whether in print or

electronic format, a radio station, a television station, a television network, a community antenna

television service, or a person or corporation engaged in making news reels or other motion

picture news for public showing.” 5 ILCS 140/2(f). In setting the amount of any reduction, the

public body may take into consideration the amount of materials requested and the cost of

conveying them. 5 ILCS 140/6(b). For nonfinancial records requested after July 1, 1984, it is

clear that no additional charge can be made for preparation by the staff. See 5 ILCS 140/6(a); 50

ILCS 205/13.

b. [3.48] Prepare Rules of Procedure

Even before a request is made, a municipality should have in place written rules of

procedures regarding the time periods for producing records. See 5 ILCS 140/3(g). The Freedom

of Information Act sets forth a specific schedule in detail. Each public body is to respond by

releasing the requested record or issuing a letter of denial within a seven-day period, and a failure

to so respond is considered a denial of the request. 5 ILCS 140/3(c). The municipality may extend

the time for not more than seven additional working days if it can justify this extension under one

of seven stated reasons. 5 ILCS 140/3(d). If the municipality takes more than fourteen working

days in compiling the record, the person requesting the record is entitled to treat this passage of

time as a denial of the request. 5 ILCS 140/3(e). Municipalities have generally learned to operate

within this seven- to fourteen-day time period. In addition, when the municipality, in accordance

with 5 ILCS 140/5, prepares a reasonably current list of all types or categories of records under its

control, it may find that its staff is up to the challenge of retrieval.

c. [3.49] Respond to Categorical Requests

One of the most interesting parts of the Freedom of Information Act is contained in 5 ILCS

140/3(f), which deals with categorical requests. When a request calls for all records falling within

a category, the same general rules that apply to all other public records are in force. Nonetheless,

the legislature, recognizing the potential cost and difficulty in answering these requests, has given

the public body a means for denial that is separate and distinct from the fact that the request is not

for a “public record,” as defined in 5 ILCS 140/2(c), or exempt under 5 ILCS 140/7. The public

body may state in writing that based on the categorical nature of the request, it would be unduly

burdensome for the municipality to comply with the request, that there is no way to narrow the

request, and that the burden on the public body outweighs the public interest in the information. 5

ILCS 140/3(f). This privilege accorded the municipality is referred to as an exemption, but before

the exemption can be invoked, the public body must extend to the person making the request an

opportunity to confer with it in an attempt to reduce the request to manageable proportions.

There is no question that requests for financial records prepared after July 1, 1984, are subject

to the FOIA. See §3.43 above. However, the question of categorical requests again raises the

issue of whether requests relating to financial items prepared or received prior to this date are

governed by §3a of the Local Records Act (50 ILCS 205/3a) or the FOIA. The appellate court in

Carrigan v. Harkrader, 146 Ill.App.3d 535, 496 N.E.2d 1213, 100 Ill.Dec. 148 (3d Dist. 1986),

lends support to the conclusion that requests for these documents would be covered by the FOIA.

In Carrigan, the court held that the FOIA applied to a request for access to letters written by the

county sheriff in conjunction with the plaintiff’s liquor license application before the FOIA went

into effect. Relying on the language in the definition of “public records” to include records

“having been prepared, or having been or being used, received, possessed or under the control of

any public body” (496 N.E.2d at 1214, quoting 5 ILCS 140/2(c)), the court found that the FOIA

applied because the request was made after July 1, 1984, and at that time the documents were in

the possession and control of the defendant. Based on Carrigan, it appears that a request for

financial items that were received or prepared prior to July 1, 1984, would be covered by the

FOIA if the request was made after that date and the documents were then in the possession or

control of the public body. This conclusion is warranted despite language in the Local Records

Act stating that the FOIA would apply to documents prepared or received after July 1, 1984, since

the identical provision can be found in the State Records Act, 5 ILCS 160/1, et seq., a fact noted

by the court in Carrigan. See 5 ILCS 160/26; 50 ILCS 205/15.

d. [3.50] Consider the Form of Records

With regard to the form of records, the Local Records Act allows local governments to

reproduce public records in a microfilm or digitized electronic format. Any public record may be

reproduced in microfilm or digitized format, and the governmental body may dispose of the

original paper copy, as long as (1) the reproduction process forms a durable medium that

accurately and legibly reproduces the original in all details without change and is retained in a

trustworthy, accessible, and usable manner; (2) the reproduction is retained for the prescribed

retention period; and (3) the clerk is notified whenever either the original or reproduced record is

disposed of. 50 ILCS 205/7. This provision facilitates more efficient storage of public records and

provides easier public access to these records.

The increasing use of computers by municipalities is creating new questions regarding the

form in which nonexempt records must be produced. American Federation of State, County &

Municipal Employees (AFSCME) v. County of Cook, 182 Ill.App.3d 941, 538 N.E.2d 776, 131

Ill.Dec. 401 (1st Dist. 1989), which involved computer printouts and disks, is a good example of

the confusion that can arise as to what constitutes a proper format for a public record under the

Freedom of Information Act and what it means to supply information in a “reasonably accessible

form.” County of Cook grew from a request to the county from the American Federation of State,

County and Municipal Employees (AFSCME) asking for the name, job title, position code, and

rate of pay for employees in certain county departments. A computer printout of the information

was provided, but AFSCME made another request asking that the same information be provided

on a computer tape or diskette. The county denied the second request because the information

already had been supplied.

AFSCME sued, alleging that the county could just as easily provide a tape or disk as a

printout, but for AFSCME to convert printed records onto a disk would cost approximately

$1,000. Using a balancing test to weigh the burden of responding in the form requested against

the convenience to the requester, the trial court ruled that the tape should be provided. The court

found that providing the tape posed no great burden to the county and would be more convenient

to AFSCME. Quoting Dismukes v. Department of Interior, 603 F.Supp. 760, 763 (D.D.C. 1984),

however, the First District Appellate Court reversed the lower court, finding that a governmental

body “need only provide responsive, nonexempt information in a reasonably accessible form.”

538 N.E.2d at 778. On appeal, the Illinois Supreme Court affirmed the appellate court but stated

as follows:

We do so for different reasons, however. While we think that the circuit court has

yet to decide whether defendants properly invoked a statutory exception to their

duty to make public records available for inspection and copying, we reject the

conclusion of the appellate court that the circuit court erred in granting plaintiff’s

motion for summary judgment because, as a matter of law, a public body has

complied with the Act by providing reasonable access to nonexempt information.

We also disagree with the appellate court as to its reversal of the circuit court’s

denial of defendants’ motion for judgment on the pleadings. American Federation of

State, County & Municipal Employees (AFSCME) v. County of Cook, 136 Ill.2d 334, 555

N.E.2d 361, 367, 144 Ill.Dec. 242 (1990).

6. [3.51] What Public Records or Portions Thereof Are Exempt from Public

Disclosure?

The Freedom of Information Act contains a long list of classes and subclasses exempt from

inspection and copying. 5 ILCS 140/7(1). The consistently increasing number of courts

considering these exemptions tend to strictly construe the exemptions rather than expand them.

This approach is in keeping with the broad public policy of the FOIA, which is that restraints on

access to information are “limited exceptions.” 5 ILCS 140/1. In addition, the courts have been

consistent in ruling that the burden of showing that a particular exemption applies lies with the

public body. Wayne County Press, Inc. v. Isle, 263 Ill.App.3d 511, 636 N.E.2d 65, 66, 200

Ill.Dec. 874 (5th Dist. 1994), citing American Federation of State, County & Municipal

Employees (AFSCME) v. County of Cook, 136 Ill.2d 334, 555 N.E.2d 361, 365, 144 Ill.Dec. 242

(1990), Baudin v. City of Crystal Lake, 192 Ill.App.3d 530, 548 N.E.2d 1110, 1113, 139 Ill.Dec.

554 (2d Dist. 1989), Williams v. Klincar, 237 Ill.App.3d 569, 604 N.E.2d 986, 989, 178 Ill.Dec.

463 (3d Dist. 1992), Carbondale Convention Center, Inc. v. City of Carbondale, 245 Ill.App.3d

474, 614 N.E.2d 539, 541, 185 Ill.Dec. 405 (5th Dist. 1993), and Schessler v. Illinois Department

of Conservation, 256 Ill.App.3d 198, 627 N.E.2d 1250, 1253, 194 Ill.Dec. 608 (4th Dist. 1994).

Sections 3.52 – 3.60 below discuss the exemptions and interpretive case law of most interest to

municipal officials.

a. [3.52] Strict Construction and Conflicting Laws

The Freedom of Information Act exempts information specifically prohibited from disclosure

by federal or state law or resolution. 5 ILCS 140/7(1)(a). Smith v. Cook County Probation

Department, 151 Ill.App.3d 136, 502 N.E.2d 1157, 104 Ill.Dec. 497 (1st Dist. 1986), illustrates

the strict construction generally accorded the FOIA by the reviewing courts. The Smith court held

that a probationer could not seek disclosure of his own probation records under the FOIA because

state law specifically prohibited disclosure of these records except by a judge or a probation

officer pursuant to court order, making them exempt under §7(1)(a).

Strict construction of the FOIA’s exceptions can occasionally produce unusual results,

however, as in Carbondale Convention Center, Inc. v. City of Carbondale, 245 Ill.App.3d 474,

614 N.E.2d 539, 185 Ill.Dec. 405 (5th Dist. 1993). The controversy in Carbondale Convention

Center arose when the city denied a local newspaper’s request for a copy of a court-approved

settlement agreement between the city and the convention center that had resolved a breach of

contract dispute. The city cited §§7(1)(a) and 7(1)(b) of the FOIA as its bases for refusing to

disclose the agreement, as well as the court order that by its terms prohibited disclosure of the

agreement. Undaunted, the newspaper filed a petition to intervene in the lawsuit. In ordering the

release of the settlement agreement, the Carbondale Convention Center court, quoting Baudin v.

City of Crystal Lake, 192 Ill.App.3d 530, 548 N.E.2d 1110, 1114, 139 Ill.Dec. 554 (2d Dist.

1989), relied on the FOIA’s policy favoring public access to records and the requirement that a

“detailed justification” be given for any claim of exemption, “addressing the requested

documents specifically and in a manner allowing for adequate adversary testing.” [Emphasis

added by Baudin court.] 614 N.E.2d at 541. The Carbondale Convention Center court also

rejected the city’s claim that the court order was considered a state law under §7(1)(a).

Furthermore, the city could not use the order to justify its denial of the record since the city itself

had requested the imposition of a gag order on the settlement. The court suggested that allowing

the city to prevail would encourage manipulation of the exemptions to serve a municipality’s selfinterest

in hiding records.

When the FOIA provides no specific exemption prohibiting access by particular individuals

to public records, a conflicting law may serve to limit this otherwise unrestricted access. In

Holloway v. Meyer, 311 Ill.App.3d 818, 726 N.E.2d 678, 244 Ill.Dec. 703 (2d Dist. 2000), the

court ruled that the Unified Code of Corrections governed the facts at issue, specifically that the

mail of the plaintiff inmates was confiscated by a corrections officer. The mail addressed to the

inmates was denied to them because the prison officials concluded that it might pose a threat to

security or safety. The appellate court affirmed the decision of the trial court that the department’s

mail regulations and the seizure of the travel vouchers initially obtained through the FOIA did not

infringe on the plaintiffs’ constitutional rights, and that the Unified Code of Corrections was the

proper authority.

See also the Illinois School Student Records Act, 105 ILCS 10/1, et seq., which may apply to

any FOIA requests for information pertaining to students covered by the Student Records Act.

Because information by which a student may be individually identified can be disclosed only to

certain authorized individuals as specified in 105 ILCS 10/6, the Student Records Act should be

consulted whenever requests for student information are received. Documents that may be

accessible under the FOIA or that fall into the general and vague privacy protection category that

requires application of a balancing test approach could conceivably be protected from release

under the Student Records Act.

b. [3.53] Invasion of Privacy

The Freedom of Information Act exempts information that, if disclosed, would constitute a

clearly unwarranted invasion of personal privacy. 5 ILCS 140/7(1)(b). The person whose privacy

is being invaded can consent in writing to the disclosure of the information, however. Since the

disclosure of all information regarding personnel might be considered an invasion of privacy, the

FOIA goes on to provide that information bearing on the “public duties” of public employees and

officials is not considered an invasion of privacy. Id. Section 7(1)(b) then lists six items that, if

disclosed, would result in a per se unwarranted invasion of privacy. Among these items are

personal information maintained by the public body with respect to clients, patients, students, and

others receiving care or services from the public body; personnel files (remember employees have

certain rights to see their own personnel file under the Personnel Record Review Act, 820 ILCS

40/0.01, et seq.); personal information with respect to applicants for professional or occupational

licenses or these licensees; most information with respect to a taxpayer in connection with the

payment of taxes; information revealing the identity of an individual filing a complaint with an

administrative, investigative, or law enforcement agency; and the names, addresses, or other

personal information of participants in park district, forest preserve district, and conservation

district programs.

It is important to note, however, that this list is not exclusive and that the personal privacy

exemption will likely continue to be one of the most heavily relied on and litigated exemptions

under the FOIA, utilized by governmental bodies as a general blanket exemption. As a guide to

the structure of §7(1)(b), municipal officials should note that the courts have attempted to clarify

the proper analysis when determining whether the exemption should apply. What follows is a

discussion of a variety of opinions that have been issued over the years, followed by a discussion

of subsequent opinions in which the courts have attempted to streamline and focus this rather

complicated inquiry.

The broad protection of the personal privacy exemption was successfully invoked by the City

of Champaign to withhold the names, addresses, and statements of witnesses contained in its

police traffic accident reports. Staske v. City of Champaign, 183 Ill.App.3d 1, 539 N.E.2d 747,

132 Ill.Dec. 184 (4th Dist.), appeal denied, 127 Ill.2d 642 (1989). The Staske court ruled that the

witness’ written consent was necessary before this information could be disclosed. (Staske was

decided before the FOIA was amended by P.A. 88-444 (eff. Jan. 1, 1994) to allow public bodies

to disclose the identity of witnesses involved in traffic accidents. 5 ILCS 140/7(1)(b)(v). This

disclosure, along with the police reports, is discretionary unless an investigation is pending.)

Likewise, the refusal of the state’s attorney to release information in prosecutors’ personnel files

disclosing their racial classification on grounds of privacy protection was found to be a proper

application of §7(1)(b)(ii). In CBS, Inc. v. Partee, 198 Ill.App.3d 936, 556 N.E.2d 648, 145

Ill.Dec. 30 (1st Dist.), appeal denied, 133 Ill.2d 553 (1990), the appellate court, citing Family Life

League v. Department of Public Aid, 112 Ill.2d 449, 493 N.E.2d 1054, 98 Ill.Dec. 33 (1986),

Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill.2d 373, 538 N.E.2d

557, 131 Ill.Dec. 182 (1989), and Margolis v. Director of Department of Revenue, 180 Ill.App.3d

1084, 536 N.E.2d 827, 129 Ill.Dec. 777 (1st Dist. 1989), held that acceptance of public

employment by assistant state’s attorneys did not constitute a waiver of their rights to privacy that

would be invaded if information as to their individual racial classification were released, even

though the plaintiff claimed that it was seeking to verify the accuracy of racial data provided to

the Equal Employment Opportunity Commission. Additionally, in Copley Press, Inc. v. City of

Springfield, Illinois, 266 Ill.App.3d 421, 639 N.E.2d 913, 917, 203 Ill.Dec. 354 (4th Dist. 1994),

the appellate court approved the City of Springfield’s refusal to release its investigative file and

documents pertaining to a sexual harassment complaint against the city’s chief of police and also

found that information in the file could not be “meaningfully redacted” to avoid disclosing

confidential information or sources. The Copley Press court’s basis for finding these records

exempt under the privacy exception in §7(1)(c)(iv), pertaining to the identity of informant

sources, was that the information in the investigative files was given to the police in confidence

and with the promise that this confidentiality would be protected.

A number of courts also have considered whether the public is entitled to names and

addresses of students. In Local 1274, Illinois Federation of Teachers v. Niles Township High

Schools, District 219, 287 Ill.App.3d 187, 678 N.E.2d 9, 222 Ill.Dec. 602 (1st Dist. 1997), a

teachers’ union sued a high school district when its request for the names and addresses of parents

and students was denied. The school argued that the union was first required to exhaust grievance

procedures provided under its collective bargaining agreement with the school. The appellate

court first held that the union did not have to follow grievance procedures under their collective

bargaining agreement before going to court. The second issue was whether the union was entitled

to information about the district’s enrolled students and their parents that would enable the union,

through surveys and mailings, to involve parents in the collective bargaining process and inform

them about potential labor strikes. The court agreed with the school district that this information

did not constitute a public record under the FOIA and stated that the purpose of the FOIA is to

give people access to information “regarding the affairs of government and the official acts and

policies of those who represent them,” not to violate individual privacy, further a commercial

enterprise, or disrupt the work of a public body. 678 N.E.2d at 11, quoting 5 ILCS 140/1.

Included within the scope of the personal privacy exemption in §7(1)(b)(i) is personal

information with respect to students. The court held that this exemption covers names, addresses,

and telephone numbers that would reveal the identity of particular individuals.

The same exemption was relied on in Gibson v. Illinois State Board of Education, 289

Ill.App.3d 12, 683 N.E.2d 894, 225 Ill.Dec. 391 (1st Dist. 1997), in which the court decided that

the University of Illinois and the Illinois State Board of Education did not have to release the

names and addresses of students awarded General Assembly Scholarships by their legislators.

Because of the express assertion in §7(1)(b)(i) that information with respect to students receiving

educational or financial care or services would, if disclosed, constitute a clearly unwarranted

invasion of personal privacy, this disclosure would be a per se invasion since the names of the

scholarship recipients constitutes personal information relating to students receiving educational

or financial benefits from the legislature. Although Local 1274 and Gibson provide support for

refusing to routinely release name and address lists of citizens, students, or other groups, as

discussed below, other courts have suggested that requests for these lists must be carefully

examined rather than readily denied.

In Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 680 N.E.2d

374, 379, 223 Ill.Dec. 641 (1997), the plaintiff, the owner of private apartment housing located

near the campus of Southern Illinois University, requested the names and addresses of incoming

freshmen. The university refused to provide him with such a list, and he sued, claiming a

violation of the FOIA. The university argued that the information was exempt from disclosure

under §7(1)(b) of the FOIA as personal information maintained with respect to students receiving

educational services from a public body and that the plaintiff was also not entitled to the

information because he intended to use it for commercial purposes, that is, to contact potential

new students about housing opportunities in his units.

The Illinois Supreme Court found that the university’s claimed exemption regarding students

did not apply to this request because the individuals whose names and addresses were sought had

not yet registered for classes; therefore, they were not students. Moreover, the general exemption

regarding personal information that would invade individual privacy was not applicable since the

names and addresses in this instance were not of such a confidential or private nature that they

needed to be protected, especially considering that the university had a practice of giving this

information about prospective students to the local newspaper and community religious

organizations. Thus, the university was treating the plaintiff differently simply because he was

competing with the university to obtain the prospective students as tenants. The plaintiff was

therefore entitled to the information sought.

This strict interpretation of records that fall within the category of personal information was

adopted by the court in Chicago Journeymen Plumbers’ Local Union 130 v. Department of

Public Health, 327 Ill.App.3d 192, 761 N.E.2d 1227, 260 Ill.Dec. 671 (1st Dist. 2001). In

Chicago Journeymen, the plaintiff, a plumbers’ union, sought the names and addresses of all

plumbers licensed by the Illinois Department of Public Health. The department refused to release

the home addresses of the licensed plumbers, contending that this information constituted

personal information exempt from disclosure under the FOIA. The Chicago Journeymen court

cited the reasoning in Lieber in holding that the home addresses of the licensed plumbers were

merely basic identification information and not the sort of private and confidential information

exempt under the FOIA. The court ruled that the department, therefore, should have made this

information available to the plaintiff. Even so, the court acknowledged that names and addresses

of a particular group may constitute personal information in some circumstances, depending on

the category of the names and addresses sought.

Other courts subsequently have adopted the Lieber approach in applying the general personal

privacy exemption and the specific privacy exemptions set forth in §7(1)(b) of the FOIA. In

Chicago Tribune Co. v. Board of Education of City of Chicago, 332 Ill.App.3d 60, 773 N.E.2d

674, 265 Ill.Dec. 910 (1st Dist. 2002), the plaintiff requested specific information regarding past

and present students in the City of Chicago’s educational system. The city objected to the release

of this information on the basis that §7(1)(b)(i) of the FOIA precludes the release of files and

personal information maintained with respect to students. The defendant argued that because this

information was masked so that individual students could not be identified if the information was

released, the exemption pertaining to students’ personal information did not apply. The court

disagreed and held that as long as information falls within a specific exemption under §7(1)(b), it

is per se exempt. All arguments with respect to the ability to identify students from the

information sought were, therefore, irrelevant. In contrast, the court in Southern Illinoisan,

Division of Lee Enterprises, Inc. v. Department of Public Health, 319 Ill.App.3d 979, 747 N.E.2d

401, 254 Ill.Dec. 361 (5th Dist. 2001), found the masked nature of information sought to be

released applicable when applying the balancing test for the general personal privacy exemption

of §7(1)(b). The Southern Illinoisan court determined that whether information requested under

the FOIA can be used to identify an individual will bear on the degree of invasion of this person’s

privacy — an element of the Lieber balancing test.

In Copley Press, Inc. v. City of Springfield, 143 Ill.App.3d 370, 493 N.E.2d 127, 97 Ill.Dec.

645 (4th Dist. 1986), the appellate court found a city liquor license to be an occupational license

exempt under §7(1)(b)(iii) of the FOIA. In Schessler v. Illinois Department of Conservation, 256

Ill.App.3d 198, 627 N.E.2d 1250, 194 Ill.Dec. 608 (4th Dist. 1994), an application for a permit

for a live pigeon shoot, however, was not exempt because the short-term activity lacked

continuity and the degree of regulation necessary to constitute an occupation and bring it within

§7(1)(b)(iii). In City of Monmouth v. Galesburg Printing & Publishing Co., 144 Ill.App.3d 224,

494 N.E.2d 896, 98 Ill.Dec. 774 (3d Dist. 1986), the city sued to bar repeated requests from the

local newspaper for the names, ages, sex, and addresses of crime victims. The city claimed that

this data was exempt under §7(1)(b)(v) of the FOIA, which exempts information revealing the

identity of persons who file complaints with or provide information to administrative,

investigative, law enforcement, or penal agencies. The appellate court ruled that §7(1)(b)(v) was

not a blanket waiver and ruled in favor of disclosure, however, because the city had not alleged a

clearly unwarranted invasion of privacy. But see Staske, supra.

As illustrated above, for years, the large amount of litigation that has stemmed from the

personal privacy exemption did not really define a clear standard under which local governments

must operate. While it should be expected that this exemption will continue to be heavily

litigated, several courts have sought to clarify the standard. In Chicago Journeymen, supra, the

appellate court provided a detailed analysis of “personal information” and the extent to which it

operates as an exemption to disclosure. As noted above, in Chicago Journeymen, the plaintiff

requested the disclosure of the names and addresses of licensed plumbers and apprentices, but the

Illinois Department of Public Health denied the request, citing §7(1)(b)(iii). The court held that

while names and addresses certainly constitute information about the plumbers, it determined that

this was only basic information and that “personal information” means private and confidential

information. The Chicago Journeymen court distinguished its facts from those in Gibson, supra,

in which the names and addresses sought were of students receiving legislative scholarships,

“intensely” private information that is exempted per se in §7(1)(b)(i). 761 N.E.2d at 1233,

quoting Gibson, supra, 683 N.E.2d at 900. See also Chicago Alliance for Neighborhood Safety v.

City of Chicago, 348 Ill.App.3d 188, 808 N.E.2d 56, 283 Ill.Dec. 506 (1st Dist. 2004) (holding

that names and addresses of crime victims who have provided information to the police constitute

private and confidential information).

As noted above, in Chicago Tribune, supra, a reporter requested that the Board of Education

of the City of Chicago supply certain information regarding current and past students, and the

board denied the request, claiming that it was personal information about students, thus exempted

by §7(1)(b)(i). The court first explained the two-pronged §7(1)(b) analysis. First, there are six

listed exemptions, and if the public body can show that the request clearly falls under one of

them, the inquiry is over and disclosure is not required. Second, if a per se exemption does not

apply, there is also a general exemption in the FOIA that permits the public body to refuse

disclosure if the requested information constitutes a “clearly unwarranted invasion of personal

privacy.” 773 N.E.2d at 679, quoting 5 ILCS 140/7(1)(b). If the public body asserts this general

exemption or if it asserts a per se exemption but fails to show that it applies, the court must make

a case-by-case determination of whether the information sought would clearly invade personal

privacy. This determination is made by balancing (1) the plaintiff’s interest in disclosure, (2) the

public’s interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the

availability of other means for acquiring the information. The court then determined that the

information sought fit into the per se exemption listed in §7(1)(b)(i). Recognizing Chicago

Journeyman, supra, the court found that the information was private and confidential, and thus

personal, because it concerned the receipt of free lunches and financial aid and the students’

medical status, bilingual status, and special education status.

The application of the balancing test was illustrated in Southern Illinoisan, supra, in which

the plaintiff requested copies of documents from the Illinois Department of Public Health relating

to the incidence of neuroblastoma in the area, specifically by type of cancer, zip code, and date of

diagnosis. The department denied the request, claiming a per se exemption under §7(1)(b)(i), but

the court disagreed and proceeded to balance the above listed factors in order to determine

whether the request constituted a clearly unwarranted invasion of personal privacy. The court

held that the information must be disclosed. First, the plaintiff’s interest in disclosure was high

because it was the biggest newspaper in the region and had a great interest in reporting this

information. Second, the public’s interest was high because the release of the information could

help with prevention efforts and overall awareness. Third, because the risk of personal

identification was low, privacy interests did not outweigh these interests in disclosure. Finally,

there were no other conceivable means for access to the same information.

In Chicago Alliance, supra, the plaintiff requested the names and addresses of prior

requesters of information from the Chicago Police Department. Because none of the per se

exemptions applied, the court invoked the Lieber balancing test to determine whether disclosure

of this information would constitute a clearly unwarranted invasion of personal privacy. In

balancing the factors, the court determined that disclosure would not serve any significant interest

of the plaintiff and that the invasion of personal privacy would be great due to the nature of the

governmental entity involved and the identities of the FOIA requesters. The court recognized that

many of the requesters would be crime victims, witnesses, and persons interested in crime

prevention who could be reluctant to request information if their requests would make their

names and addresses public.

The important points to note from these cases, beginning with Lieber, are as follows. First, in

order to constitute “personal information” pursuant to §7(1)(b), the information requested must be

more than basic name and address lists and instead must contain private or confidential

information. Second, if a public body can show that the information sought clearly fits into one of

the six per se exemptions, the inquiry is over. Finally, the public body also can assert the general

privacy exemption, in which case the court would balance four factors to determine whether

granting the FOIA request would cause a clearly unwarranted invasion of personal privacy.

Additionally, and switching gears slightly, with P.A. 87-1239 (eff. Dec. 22, 1992), the

legislature also created an exemption clearly intended to protect the privacy of police officers,

victims, and witnesses involved in charges of unreasonable force. 65 ILCS 5/10-1-18(d), 5/10-1-

18.1. These amendments require that each civil service commission file an annual status report by

December 31 on its investigations of allegations of unreasonable force against police officers.

The report must include the number of allegations, the number of officers against whom charges

were filed, and a listing of unreasonable force allegations for which a decision was made not to

file charges. Section 10-1-18(d)(5) of the Illinois Municipal Code provides that information

regarding the identities of witnesses and victims and of officers against whom charges have not

been filed is exempt from disclosure under §7 of the FOIA.

c. [3.54] Investigatory Materials

The exemptions in §§7(1)(c) and 7(1)(d) of the Freedom of Information Act (5 ILCS

140/7(1)(c), 140/7(1)(d)) provide protection against the disclosure of investigatory records

compiled for ordinance or administrative enforcement and law enforcement purposes when the

disclosure would interfere with ongoing investigations, unavoidably disclose the identity of an

informant, disclose specialized investigative techniques, or cause other itemized harms, including

the invasion of personal privacy. Section 7(1)(c) also protects investigatory materials compiled

for “internal matters of a public body.” One appellate court has suggested that the test of whether

investigatory records are compiled for internal matters and are therefore exempt is two-pronged:

(1) whether the records are developed for “predominantly internal” purposes; and (2) whether

disclosure would significantly risk circumvention of the municipality’s ordinances and

regulations. Baudin v. City of Crystal Lake, 192 Ill.App.3d 530, 548 N.E.2d 1110, 1117, 139

Ill.Dec. 554 (2d Dist. 1989).

What constitutes an “investigation” is also an important consideration for municipalities. In

Baudin, the court held that an “investigation” is underway, within the meaning of the FOIA, only

when the inquiry departs from the routine and focuses with special intensity on a particular

matter. Additionally, the Seventh Circuit has interpreted the federal Freedom of Information Act

counterpart to this exemption (5 U.S.C. §552(b)(7)) in City of Chicago v. United States

Department of Treasury, Bureau of Alcohol, Tobacco & Firearms, 287 F.3d 628 (2002) (City of

Chicago I), vacated in light of intervening legislation, 423 F.3d 777 (7th Cir. 2005) (City of

Chicago II), in which the city sought records from the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) pertaining to sales and tracing information of firearms, both nationwide and in

Chicago. The ATF responded with a portion of the requested information but refused to disclose a

significant amount, citing a possibility of interference with prospective investigations. The

Seventh Circuit held that to invoke this exemption, the records must be a part of an investigatory

file pertaining to an actual or contemplated investigation or enforcement proceeding and not

simply part of a speculative or potential proceeding. The City of Chicago I court stated,

“[H]ypothetical scenarios do not convince us that disclosing the requested records puts the

integrity of any possible enforcement proceedings at risk.” 287 F.3d at 634. Therefore, the fact

that information is part of an investigatory file is not enough to invoke this exemption. The U.S.

Supreme Court granted certiorari to review the holding, but intervening federal legislation barred

access to ATF firearm sales and tracing data except for narrow criminal investigation and

prosecution settings. Therefore, on remand, the Seventh Circuit vacated its previous decision and

concluded that the requested records, which had previously been subject to disclosure because

they fell short of the federal FOIA’s law enforcement investigation exemption, were now exempt

from disclosure under an entirely different federal FOIA’s exemption, namely the exemption for

all records prohibited from disclosure by a separate statute. 5 U.S.C. §552(b)(3); the state FOIA

analog to this federal provision is located at §7(1)(a) of the state FOIA, 5 ILCS 140/7(1)(a). The

City of Chicago II holding, however, reiterated that the earlier discussion establishing the outer

bounds of an “investigation”-based exemption remains valid, since the intervening Congressional

legislation amounted to a “change in substantive FOIA law in that it exempts from disclosure data

previously available to the public under FOIA.” City of Chicago II, 423 F.3d at 781. In other

words, Congress subsequently carved out a specific exemption to shield the ATF’s tracing and

firearm sales data from public disclosure, but the Seventh Circuit’s claim that this legislation

protected information previously available impliedly reaffirms the earlier analysis declaring that

investigatory files are exempt from FOIA disclosure only insofar as they relate to an actual or

imminent investigation. Therefore, Illinois courts would likely look to City of Chicago I if a

similar dispute arose in state court.

Whether the statutory privilege afforded law enforcement investigatory documents extends to

these same documents requested during discovery in civil litigation was decided by the First

District Appellate Court in In re Marriage of Daniels, 240 Ill.App.3d 314, 607 N.E.2d 1255, 180

Ill.Dec. 742 (1st Dist. 1992), which involved a child custody dispute. The Daniels court

concluded that the FOIA is intended to apply to the general public and does not create an

automatic evidentiary privilege. Rather, the courts must utilize the FOIA’s exemptions as a guide

in balancing public policy concerns against the needs of litigants.

The issue in Daniels arose during the deposition of an officer who had investigated an

incident in which a child’s mother was the victim of a shooting. The father, seeking a transfer of

custody from the mother, argued that the mother’s home created a dangerous environment for the

child. When the officer refused to disclose information and documents regarding the

investigation, claiming they were privileged, the father went to court demanding disclosure and

sanctions.

After a lengthy analysis of the history of the FOIA and its exemptions and the development

of common law privilege for law enforcement investigatory files under state and federal law, the

Daniels court ruled that these records are entitled to a qualified privilege to protect potentially

sensitive data. To sustain the privilege, the party asserting it must prove facts that justify its

application. 607 N.E.2d at 1266. In resolving an issue of this nature, courts are directed by the

Daniels court to apply various specific criteria in order to determine whether disclosure would be

contrary to the public interest.

d. [3.55] Quasi-Commercial, Trade, Technical, and Financial Items

The Freedom of Information Act has numerous exemptions that relate to quasi-commercial,

trade, technical, or financial items, including documents pertaining to real estate purchase

negotiations. 5 ILCS 140/7(1)(g) – 140/7(1)(i), 140/7(1)(k), 140/7(1)(p), 140/7(1)(r) –

140/7(1)(t). Municipalities are able to keep from the public certain matters that would prevent

them from effectively operating as a buyer, seller, or user of services in the marketplace when a

trade partner or adversary is not required to make this disclosure. One interesting item that

illustrates the parallel relationship between the FOIA and the Open Meetings Act is the

exemption in §7(1)(s) of the FOIA that permits a municipality to withhold from public view the

“records, documents and information relating to real estate purchase negotiations until these

negotiations have been completed or otherwise terminated.” The Open Meetings Act permits

municipalities to hold closed meetings when the acquisition (and selling price) of real property is

being considered. 5 ILCS 120/2(c)(5), 120/2(c)(6). Another example of the relationship between

the two statutes is shown in the exemption for “[i]nformation concerning a university’s

adjudication of student or employee grievance or disciplinary cases, to the extent that disclosure

would reveal the identity of the student or employee and information concerning any public

body’s adjudication of student or employee grievances or disciplinary cases, except for the final

outcome of the cases.” 5 ILCS 140/7(1)(u). Again, with regard to the latter portion of this

exemption, the municipality has and continues to have the ability to discuss these matters in

closed session pursuant to §2(c) of the Open Meetings Act. It would do little good if the

municipality could discuss these matters in closed session if the public could demand and receive

any documents utilized in these sessions and maintained in the files of the public body.

e. [3.56] Communications with Municipal Attorney

The Freedom of Information Act exempts communications between a “public body and an

attorney or auditor representing the public body that would not be subject to discovery in

litigation.” 5 ILCS 140/7(1)(n). This exemption permits attorneys to advise their clients candidly

regarding both litigation and non-litigation matters. Clearly, however, not all communications

between an attorney and a client are non-discoverable in litigation. Municipal attorneys will be

required, in drafting documents for their clients, to give much more careful thought to the

possibility that they will be reading their words on the front page of the local newspaper. In

People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 689 N.E.2d 319, 228 Ill.Dec. 447 (1st Dist.

1997), the University of Illinois refused to turn over to the plaintiff taxpayer certain billing

records he requested pertaining to payments made by the university to its attorneys representing it

in the immediate case and a related case. The university asserted that the records were exempt

under §7(1)(n) as privileged communications between attorney and client. Ultimately, the

university waived its privilege and released the records, rendering the issue of the exemption

moot, but the plaintiff subsequently claimed he was entitled to attorneys’ fees as a prevailing

party under the FOIA. The court ruled that the university’s attorneys’ fees records were not

confidential communications. Much like client fee documents, these records did not reveal

confidences or contain legal advice. Moreover, the fact that they might be non-discoverable in the

course of litigation would not be a basis for exemption under the FOIA. Ulrich reinforces the

underlying public policy of the FOIA that promotes disclosure and requires a narrow construction

of exemptions.

Likewise, in Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill.2d 456, 791

N.E.2d 522, 274 Ill.Dec. 430 (2003), the Illinois Supreme Court determined that the Illinois State

Board of Education failed to establish that its communications with the Attorney General were

exempt from disclosure pursuant to §7(1)(n). The board had provided materials to the Attorney

General that were later requested by the plaintiff. The Supreme Court stated that in order to show

that the materials fit within §7(1)(n), the board would have to show that (1) the Attorney General

was representing it and (2) the communications would not be subject to discovery in litigation.

After an in camera review, the court determined that the board failed to meet this burden, stating

that it is not enough to “treat the words ‘attorney-client privilege’ or ‘legal advice’ as some

talisman, the mere utterance of which casts a spell of secrecy over the documents at issue.” 791

N.E.2d at 531. Rather, the public body must show some kind of “objective indicia” that the

exemption applies. [Emphasis in original.] Id. Finally, the court made clear that an in camera

review was preferred to affidavits in making such a ruling.

f. [3.57] Information Protecting the Essential Functions of Public Agencies

In Roulette v. Department of Central Management Services, 141 Ill.App.3d 394, 490 N.E.2d

60, 95 Ill.Dec. 587 (1st Dist. 1986), the appellate court had to consider a situation in which

numerous exemptions under the Freedom of Information Act were brought into play, all of which

go to allowing a public agency to function properly. In Roulette, an unsuccessful applicant for a

police officer position filed a request for the psychologist’s written evaluation of his personality

test scores. In addition to finding that the disclosure was specifically prohibited by the Personnel

Record Review Act (820 ILCS 40/10(b), 40/10(c)), the court noted that the request could have

been exempt under numerous exemptions of the FOIA (5 ILCS 140/7(1)(c), 140/7(1)(e),

140/7(1)(i), 140/7(1)(k), 140/7(1)(q), 140/7(1)(s), 140/7(1)(w)), which the court viewed as

protecting the integrity of essential functions of public agencies. Most interestingly, the court also

considered the information exempt as a trade secret. See 5 ILCS 140/7(1)(g). The court stated that

while the information was not a “trade secret” in the conventional sense, the courts interpreting

the federal Freedom of Information Act gave this term a broad interpretation so as to preclude

disclosure of information if it would make it more difficult for a public agency to induce people

to submit similar information in the future. 490 N.E.2d at 64. See also Copley Press, Inc. v. City

of Springfield, Illinois, 266 Ill.App.3d 421, 639 N.E.2d 913, 203 Ill.Dec. 354 (4th Dist. 1994)

(exempting from disclosure information from witnesses in a criminal investigation that contains

confidential information or could leak the identity of confidential sources, since permitting the

release of such information would make garnering cooperation from would-be witnesses difficult

in light of the likelihood of the subsequent release of sensitive information).

Section 7(1)(k) exempts architects’ plans and engineers’ technical submissions for projects

not constructed with public funds. If a project is constructed or developed with public funds, the

architects’ plans and the engineers’ technical submissions are also exempt from inspection and

copying by the public, but only to the extent that disclosure would compromise security. P.A. 93-

325 (eff. July 23, 2003) amended §7(1)(k) and set forth a nonexclusive list of the types of

facilities that would be compromised if these plans and submissions were publicly disclosed,

including water treatment facilities, airport facilities, sports stadiums, convention centers, and all

government owned, operated, or occupied buildings.

The legislature has amended the exemption in §7(1)(i) several times. In 2001, it amended

§7(1)(i) to exempt “computer graphic systems” obtained or produced by a public body when

disclosure could reasonably be expected to produce private gain or public loss. See P.A. 92-241

(eff. Aug. 3, 2001). In 2002, the legislature changed “computer graphic systems” to “computer

geographic systems.” See P.A. 92-645 (eff. July 11, 2002). P.A. 93-43 (eff. July 1, 2003) again

amended §7(1)(i) to clarify that the exemption for computer geographic systems does not extend

to requests made by news media if the only purpose of the request is to access and disseminate

information regarding the health, safety, welfare, or legal rights of the general public.

g. [3.58] Qualification Examinations

The exemption in §7(1)(j) of the Freedom of Information Act (5 ILCS 140/7(1)(j)) relates to

test questions, scoring keys, and other examination data used to administer an academic

examination or determine the qualifications of an applicant for a license or employment. It is

important to note that this exemption may not be all-inclusive for every person seeking this

information. For example, the Personnel Record Review Act provides that employees, including

municipal employees, may seek cumulative total test scores for either a section of or the entire

test document of examinations that they have taken for promotional purposes. 820 ILCS 40/10(b).

Thus, the provisions the FOIA must be reanalyzed in light of the possibility that some persons

may have a common law or statutory right to see exempt records, particularly if these records

may specifically relate to them. See Roulette v. Department of Central Management Services, 141

Ill.App.3d 394, 490 N.E.2d 60, 95 Ill.Dec. 587 (1st Dist. 1986); Bowie v. Evanston Community

Consolidated School District No. 65, 128 Ill.2d 373, 538 N.E.2d 557, 131 Ill.Dec. 182 (1989).

h. [3.59] Preliminary Materials and Drafts

The Freedom of Information Act exempts “[p]reliminary drafts, notes, recommendations,

memoranda and other records” in which opinions are expressed or policies or actions are

formulated, except that a specific record or relevant portion thereof shall not be exempt when the

record is publicly cited and identified by the head of the public body. 5 ILCS 140/7(1)(f). The

“head of a public body” is defined as meaning, among various individuals with primary executive

and administrative authority for the public body, the mayor or village president or this person’s

duly authorized designee. 5 ILCS 140/2(e). Thus, unless the head of the governmental body

publicly identifies and cites the preliminary material, it will not need to be made available for

inspection. The exemption is intended to protect and permit the free expression of ideas in all

sorts of reports prepared at all levels of local government. As long as the drafts, notes,

recommendations, or memoranda are preliminary or the records are those in which opinions are

expressed or policies or actions are formulated, they need not be revealed to the general public.

When the head of the public body or designee personally cites or identifies all or a portion of any

of these documents, however, the rights of the public to view the relevant portions of the

documents will arise.

Simply referring to a record as a “draft,” or a “recommendation,” however, is insufficient to

use this exception. Cooper v. Illinois Department of Lottery, 266 Ill.App.3d 1007, 640 N.E.2d

1299, 203 Ill.Dec. 926 (1st Dist. 1994). If a record held out as a preliminary draft is, in fact, part

of a final document, it is subject to disclosure. Hoffman v. Department of Corrections, 158

Ill.App.3d 473, 511 N.E.2d 759, 110 Ill.Dec. 582 (1st Dist. 1987) (evidence supported

determination that information on drugs used in administering death penalty was not exempt,

even though affidavits of officials indicated information was preliminary material). For a

discussion of the intent and application of the exemption for preliminary versions of draft

documents under the federal Freedom of Information Act, see City of West Chicago v. United

States Nuclear Regulatory Commission, 547 F.Supp. 740 (N.D.Ill. 1982).

Relying on the exemption in §7(1)(f) of the FOIA, the City of Chicago unsuccessfully argued

in People ex rel. Birkett v. City of Chicago, 292 Ill.App.3d 745, 686 N.E.2d 66, 226 Ill.Dec. 717

(2d Dist. 1997), that various documents in its possession relating to completed and proposed

construction projects at O’Hare Airport could be withheld from the communities of Bensenville,

Elmhurst, and Wood Dale and DuPage County. Birkett arose when these communities sued the

city, alleging that the construction projects were not certified by the Illinois Department of

Transportation and would, if allowed, increase the noise, air pollution, and hazards from

expanded flight schedules. When the plaintiffs asked for the documents relating to plans and

discussions for the proposed construction, the city declined, claiming that the materials were

protected by a deliberative process privilege as well as §7(1)(f).

The city asserted that the deliberative process privilege, though not formally recognized in

the State of Illinois, was necessary to protect and encourage the “effective and efficient

governmental decision making,” which requires a “free flow of ideas among governmental

officials.” 686 N.E.2d at 70. If the officials knew that their confidential communications would be

revealed to third parties, they would restrain themselves to the detriment of the policy-making

process and the public interests. Concluding that fears of what might happen without such a

privilege are merely speculative, the court noted that the creation of a deliberative process

privilege is a matter for the legislature. The court also soundly rejected the city’s claim that the

§7(1)(f) exemption should be applied to protect the release of this information during litigation.

The Birkett court held that while the FOIA exemptions may protect records from disclosure to the

general public, these exemptions do not necessarily create evidentiary privileges that would

insulate the particular documents from judicial discovery in a court action. 686 N.E.2d at 71,

citing In re Marriage of Daniels, 240 Ill.App.3d 314, 607 N.E.2d 1255, 180 Ill.Dec. 742 (1st

Dist. 1992).

Birkett is worth reading for the court’s discussion of the extent to which our courts are guided

by the Open Meetings Act and the FOIA and the protections that these statutes afford

communications. For example, in collective bargaining negotiations, the court might balance the

need to protect the deliberations of parties over bargaining strategy against the equally important

need for obtaining the truth about alleged matters through the discovery process and might apply

a common law qualified privilege to information about the deliberations.

In Harwood v. McDonough, 344 Ill.App.3d 242, 799 N.E.2d 859, 279 Ill.Dec. 56 (1st Dist.

2003), the appellate court addressed the question of whether final documents produced by outside

consultants could be exempted via §7(1)(f) when these final documents were used by the public

body during its deliberations on an issue. In Harwood, the plaintiff requested a final report

prepared for the then Illinois Department of Commerce and Community Affairs (DCCA) (now

the Illinois Department of Commerce and Economic Opportunity) by Anderson Consulting.

DCCA denied the request, citing the §7(1)(f) exemption, and instead provided a one-page

executive summary of the report. Relying on federal case law addressing similar issues, the

Harwood court determined that the word “preliminary” would include a final draft such as the

report in question when it is part of a public body’s pre-decisional deliberations, and not cited by

the head of the public body. In Harwood, although the Director of DCCA had cited the report, the

court determined that she had only cited the executive summary, which was provided to the

plaintiff. See also Parmelee v. Camparone, No. 93 C 7362, 1998 U.S.Dist. LEXIS 15813

(N.D.Ill. Oct. 1, 1998).

The §7(1)(f) exemption also has been strictly construed so as to bar a liquor license applicant

from access to a letter containing a county sheriff’s recommendations on the applications when

the sheriff’s findings were not publicly cited in the Liquor Control Commissions’ opinions.

Carrigan v. Harkrader, 146 Ill.App.3d 535, 496 N.E.2d 1213, 100 Ill.Dec. 148 (3d Dist. 1986).

i. [3.60] Other Important Cases To Note

An interesting variation on the question of the disclosure of psychological and polygraph test

results was addressed in Roehrborn v. Lambert, 277 Ill.App.3d 181, 660 N.E.2d 180, 213 Ill.Dec.

923 (1st Dist. 1995). In Roehrborn, the court considered whether the village’s police chief

violated the Freedom of Information Act and the privacy rights of a probationary police officer by

sending the officer’s test results showing his failed performance to the administrator of the police

training institute. The court held that no privacy invasion had occurred. More significantly, the

court ruled that the FOIA is intended to ensure disclosure of information and not to protect

information from disclosure.

Also notable is Osran v. Bus, 226 Ill.App.3d 704, 589 N.E.2d 1027, 168 Ill.Dec. 627 (2d Dist.

1992), which was instituted by the refusal of the Kane County Board of Supervisors to turn over

to the plaintiffs requested documents pertaining to the county’s search for and evaluation of

potential landfill sites. The county relied on the FOIA exemption for real estate matters,

proposals, and bids (5 ILCS 140/7(1)(s)). Taking a liberal view of the public policy underlying

the FOIA and also citing the Solid Waste Planning and Recycling Act, 415 ILCS 15/1, et seq., the

court found that the records were not exempt because they related to potential sites rather than a

specific site and the public should have the opportunity to “participate fully in every stage of the

development of county solid waste management.” 589 N.E.2d at 1033.

j. [3.61] Overview of Additional Exemptions

Sections 3.52 – 3.60 above discuss the exemptions most important to municipalities. Many

other exemptions exist, however, and whenever confronted with a question as to whether

disclosure is required, it is important for a municipality to contact its attorney or to carefully read

the Freedom of Information Act for additional options. Further, the FOIA has been frequently

amended to include additional exemptions. For example, in enacting P.A. 93-422 (eff. Aug. 5,

2003), the legislature added exemptions for policies, plans, and maps designed to identify,

prevent, or respond to attacks on the municipal population, facilities, or systems, but only to the

extent that this disclosure could reasonably be expected to jeopardize the effectiveness of the

measures or the safety of those implementing them. 5 ILCS 140/7(1)(ll), 140/7(1)(mm).

As noted in §3.57 above, the FOIA exempts technical documents related to municipal

construction, including architectural and engineering plans, but also only to the extent that

disclosure would compromise security. 5 ILCS 140/7(1)(k). This provision was amended by P.A.

93-325 (eff. July 23, 2003) to specifically include plans for water treatment facilities, airport

facilities, sports stadiums, convention centers, and any governmentally owned, operated, or

occupied buildings.

P.A. 93-209 (eff. July 18, 2003) added another category of documents exempt from public

inspection and copying under the FOIA. P.A. 93-209 amended the Illinois Vehicle Code, 625

ILCS 5/1-100, et seq., to require state and local law enforcement officers to record for a four-year

period specific information regarding their traffic stops, such as the name, address, gender, and

race of the driver; the date, time, and location of the traffic stop; the type of vehicle; and the

alleged traffic violation that led to the stop. Law enforcement officers are required to transmit this

data to the Department of Transportation so that the Department can analyze it for evidence of

racial profiling in traffic stops. 625 ILCS 5/11-212. Law enforcement officer and driver

identification information compiled under §11-212 of the Illinois Vehicle Code is exempt from

public inspection and copying. 5 ILCS 140/7(1)(nn).

P.A. 94-508 (eff. Jan. 1, 2006) expanded on the trade secrets exemption found in §7(1)(g) of

the FOIA, specifically regarding information about investment of public funds. 5 ILCS

140/7(1)(g)(ii).

k. [3.62] Releasing Exempted Materials

Except when the right of privacy intervenes, it is likely that most of the records found to be

exempt under the Freedom of Information Act could be exposed to public view if the

municipality were so inclined. It is unclear what action needs to be taken by the corporate

authorities to expand the scope of public inspection beyond that contained within the FOIA since

the FOIA makes no provision for a government to release those items covered under its

exemptions. Based on the general philosophy of the FOIA, however, the courts would likely

approve most municipal actions to make more rather than fewer records available to the public.

7. [3.63] Exempt vs. Nonexempt Material: Is Deletion the Creation of a New Record?

The Freedom of Information Act requires that when an exempt record contains any material

that is not exempt, the public body must delete the exempt material and make the nonexempt

material available for inspection and copying. 5 ILCS 140/8. First, it should be assumed that the

public body must make these divisions only when a request is made. It would be an unbelievable

burden to require a municipality to search through all of its existing records and categorize

material under the FOIA. Even the division of requested material into exempt and nonexempt

parts on an as-needed basis will present problems for both the person who requests the

information and the person separating the materials. One need only think of the mail of World

War II soldiers or the blank spaces in the Warren Commission Report to recall that such a

process, even when accomplished with care and sensitivity, often produces a meaningless

document because of the “word omitted as exempt” result.

Nevertheless, the courts have indicated that this is what must be done. In Family Life League

v. Department of Public Aid, 132 Ill.App.3d 929, 478 N.E.2d 432, 88 Ill.Dec. 117 (1st Dist.

1985), rev’d on other grounds, 112 Ill.2d 449 (1986), which involved a request for disclosure of

public records regarding the use of public funds paid to doctors and healthcare providers for

abortions and abortion-related services, the appellate court stated that disclosure by deleting

confidential information or extracting required information does not necessitate the creation of a

new record. The court reasoned that treating deletions of exempt material or extractions of

disclosable information as the creation of a new record would allow any agency to make its

documents inaccessible by including confidential materials since the FOIA does not require a

public body to create new records to comply with its provisions. This same position was taken by

the Illinois Supreme Court in Hamer v. Lentz, 132 Ill.2d 49, 547 N.E.2d 191, 138 Ill.Dec. 222

(1989), in which compilation and separation of numerous documents that contained exempt and

nonexempt, as well as requested and unrequested, records was required. Further, in Carter v.

Meek, 322 Ill.App.3d 266, 750 N.E.2d 242, 246, 255 Ill.Dec. 661 (5th Dist. 2001), the appellate

court noted that convenience and ease of extracting information are not the focus of the inquiry,

requiring redaction when “[t]he record does not clearly show that the entire document, in every

page and every sentence, contains material that would properly fall under the exemption.”

In Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill.2d 373, 538

N.E.2d 557, 131 Ill.Dec. 182 (1989), the Illinois Supreme Court expanded the deletion

requirement by interpreting it as requiring the substitution of nonexempt information for exempt

information. Bowie involved the disclosure of student test score records that were scrambled and

masked to protect the identities of the students. The requester asked only for the race of the

students and not their names and genders. The entire request was denied by the school district

under the invasion of privacy exemption of 5 ILCS 140/7(1)(b). The school district’s test records

contained a single digit code that designated both the sex and race of each student. Therefore, the

district contended that modifying the records by substituting a new code to designate only a

student’s race constituted the creation of new records that was not required under FOIA. The

court disagreed and ruled that scrambling and masking the records and designating only the race

of the students whose scores were released would adequately protect the privacy of the

individuals involved.

The Bowie court equated changing the format of an existing record to the deletion of exempt

material from a record and releasing the remaining information. Because this computer-generated

document could be revised and printed in another manner so as to make it nonexempt, the court

ruled that a new public record was not being created. Instead, exempt material simply was being

deleted by the process. The court’s logic was intended to prevent the potential abuse of

purposefully using a particular format to include exempt material so that the record need not be

disclosed. Unfortunately, the court did not offer guidance as to when the substitution of

information into an existing record constitutes the creation of a new record. As pointed out in the

dissent by Justice Miller, in which Justice Ryan joined, more than the deletion of exempt material

was involved, and FOIA expressly provides that it is not intended to require the maintenance or

preparation of new records. See also Copley Press, Inc. v. City of Springfield, Illinois, 266

Ill.App.3d 421, 639 N.E.2d 913, 203 Ill.Dec. 354 (4th Dist. 1994) (court found certain

information in investigative records exempt under privacy exemption and noted that nonexempt

material could not be meaningfully deleted without disclosing confidential information and

sources); Chicago Tribune Co. v. Board of Education of City of Chicago, 332 Ill.App.3d 60, 773

N.E.2d 674, 265 Ill.Dec. 910 (1st Dist. 2002).

8. [3.64] If a Public Body Provides Its Records to Another Entity, Does It Waive the

Right To Protect Those Records from Disclosure Under an FOIA

Exemption?

The question of whether an entity waives the right to protect its records from disclosure under

an exemption under the Freedom of Information Act when it provides these records to another

entity was addressed in Twin-Cities Broadcasting Corporation, WJBC-WBNQ Radio v. Reynard,

277 Ill.App.3d 777, 661 N.E.2d 401, 214 Ill.Dec. 547 (4th Dist. 1996). In Reynard, Illinois State

University submitted copies of minutes and a transcript of a closed meeting to the state’s attorney

as part of an investigation into whether the university’s athletic council had violated the Open

Meetings Act by holding a closed session. (The university asserted that the council was not a

public body subject to the Act. In a subsequent related case, the court concluded that the council

was a subsidiary public body governed by both the FOIA and the Open Meetings Act.)

Thereafter, a newspaper requested these documents from the state’s attorney’s office, prompting

the university to seek to enjoin the state’s attorney from releasing the documents to the

newspaper. Distinguishing the Illinois FOIA from its federal counterpart, the court found that

Illinois’ FOIA grants a public body a continuing right to assert exemptions for requested records

even when these records are in the possession of another entity.

9. [3.65] When a Municipality Refuses To Allow Access, What Are the Rights of the

Applicant?

After the applicant has been denied access under the Freedom of Information Act to records

both by the municipal administrative officials and by the head of the public body, the next

recourse is the filing of a suit for injunctive or declaratory relief. 5 ILCS 140/11. Such a right is

available to any person to whom disclosure is refused, and it is not necessary to exhaust other

remedies first. In Local 1274, Illinois Federation of Teachers v. Niles Township High School,

District 219, 276 Ill.App.3d 714, 659 N.E.2d 18, 213 Ill.Dec. 388 (1st Dist. 1995), the school

district had denied the unions’ request for names and addresses of parents and students in the

district, claiming that the unions failed to exhaust the grievance and other procedures provided

under their collective bargaining agreement. The court rejected this position, ruling that the FOIA

establishes a separate, independent state statutory right available to all persons without restriction.

Each case is decided based on its own particular facts. The relief hearing is de novo, and a

part of the hearing generally will be a private examination of the requested records by the circuit

court judge. This examination is often referred to as an in camera review. On some occasions, a

factual determination can be made based on an examination of affidavits or sworn statements by

officers or employees rather than an in camera inspection, but not when these affidavits merely

state conclusions. Baudin v. City of Crystal Lake, 192 Ill.App.3d 530, 548 N.E.2d 1110, 1114,

139 Ill.Dec. 554 (2d Dist. 1989).

The burden of proof is on the public body to articulate a specific basis for its denial,

especially when a presumption of privacy is cited, and to establish that its refusal to permit public

inspection or copying is in accordance with the provisions of the FOIA. See Lieber v. Southern

Illinois University, 279 Ill.App.3d 553, 664 N.E.2d 1155, 216 Ill.Dec. 227 (5th Dist. 1996); City

of Monmouth v. Galesburg Printing & Publishing Co., 144 Ill.App.3d 224, 494 N.E.2d 896, 98

Ill.Dec. 774 (3d Dist. 1986).

If the court finds for the municipality, the litigation is concluded. If the court finds in whole

or in part for the applicant, the court is given power to enforce its order through its contempt

powers. If a person seeking the right to inspect or receive a copy of the public record substantially

prevails, the court may, but is not required to, award this person reasonable attorneys’ fees. If,

however, the court finds that the fundamental purpose of the request was to further the

commercial interests of the requester, the court may award reasonable attorneys’ fees only if the

court deems that the records are of “clearly significant interest to the general public and that the

public body lacked any reasonable basis in law for withholding the record.” 5 ILCS 140/11(i).

In denying attorneys’ fees to a plaintiff when the public body had lost the requested records,

the appellate court in Workmann v. Illinois State Board of Education, 229 Ill.App.3d 459, 593

N.E.2d 141, 170 Ill.Dec. 599 (2d Dist. 1992), stated that the purpose of these fees is not to reward

a successful plaintiff or punish the government. Expanding on this point, in Lieber v. Board of

Trustees of Southern Illinois University, 316 Ill.App.3d 266, 736 N.E.2d 213, 249 Ill.Dec. 371

(5th Dist. 2000), the appellate court determined that the purpose of the “clearly significant”

language must have been to prevent someone from spending thousands of dollars in attorneys’

fees solely to support a commercial interest from being reimbursed by taxpayers with little or no

interest in the information. In Ebert v. Thompson, 282 Ill.App.3d 385, 668 N.E.2d 184, 218

Ill.Dec. 21 (1st Dist. 1996), when a town trustee persuaded the court that she was entitled to the

list of names of participants in social service programs funded by the town, the court also denied

a request for attorneys’ fees. The basis for the Ebert court’s denial was that the trustee brought

her action as a mandamus and not under the FOIA.

10. [3.66] Is a Public Entity Liable for Violating an Individual’s Right of Privacy if It

Releases Information in the Belief That It Is Not Protected by the Privacy

Exemption?

In Roehrborn v. Lambert, 277 Ill.App.3d 181, 660 N.E.2d 180, 213 Ill.Dec. 923 (1st Dist.

1995), the appellate court considered whether a probationary police officer’s liberty interest had

been compromised by the disclosure of his failing psychological and polygraph test scores to the

administrator at the police training institute where the officer was to attend probationary training.

Ultimately, as a result of these tests, the officer was discharged. The court found that (a) the

officer had no privacy rights requiring legal protection, (b) the test results were not published but

simply shared by the police chief with the institute administration, (c) the test results were not

false, and (d) the officer’s poor performance on these tests and his discharge did not deprive him

of the opportunity to seek alternative employment. Moreover, the institute administrator had a

natural interest in knowing about the test performance of potential applicants. Critical to an

understanding of the application of the privacy exemption, however, is the court’s determination

that the purpose of the Freedom of Information Act is “to ensure disclosure of information, not to

protect information from disclosure.” 660 N.E.2d at 183. Therefore, Roehrborn can support an

argument that public officials should not be held liable for exercising their discretion in releasing

certain records they deem nonexempt under the FOIA.

11. [3.67] Do Federal Court Cases and Cases from Other State Courts Provide Any

Help in Interpreting the FOIA?

Illinois’ Freedom of Information Act is based on the federal Freedom of Information Act,

which establishes that all records in the possession of federal governmental agencies must be

disclosed unless covered under one of nine enumerated exemptions. 5 U.S.C. §§552(a), 552(b).

For this reason, Illinois reviewing courts rely on interpretations of the federal FOIA in deciding

cases filed in this jurisdiction. See Cooper v. Illinois Department of Lottery, 266 Ill.App.3d 1007,

640 N.E.2d 1299, 203 Ill.Dec. 926 (1st Dist. 1994). Two Seventh Circuit cases involving

challenges to the Internal Revenue Service’s denials of records requests are good examples of the

analysis conducted by the federal courts, at least in Illinois. In Patterson v. Internal Revenue

Service, 56 F.3d 832 (7th Cir. 1995), the court discussed and applied the standards for

determining whether disclosure of records will invade someone’s personal privacy. In Becker v.

Internal Revenue Service., 34 F.3d 398 (7th Cir. 1994), the court dealt with issues of redaction

and the balancing of public interest in disclosure against privacy concerns. As in the federal FOIA

and in the Illinois FOIA, states that have passed their own freedom of information statutes,

modeled after the federal FOIA, have also adopted a general policy of disclosure with narrow

construction of statutory exemptions. See San Gabriel Tribune v. Superior Court of Los Angeles

County, 143 Cal.App.3d 762, 192 Cal.Rptr. 415 (1983); In re Fink, 47 N.Y.2d 567, 393 N.E.2d

463, 419 N.Y.S.2d 467 (1979). People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 689 N.E.2d

319, 228 Ill.Dec. 447 (1st Dist. 1997), contains a good review of the federal courts’ treatment of

attorneys’ fees under the federal FOIA. Although a considerable body of law on the Illinois FOIA

has developed since its inception, a review of cases from other jurisdictions may nevertheless be

helpful, especially for issues that have not yet been addressed in Illinois.

12. [3.68] What About Electronic Communication?

Now that e-mail and other forms of electronic communication have exploded onto the

business scene, contact among people using these forms of communication has become

commonplace. Hence, more and more “records” are made that never before existed, and new

questions and issues have arisen in the context of the sunshine laws. For example, are all e-mails

generated by employees and officials or received on workplace computers deemed “public

records”? How do the exemptions to disclosure under §7 of the Freedom of Information Act (5

ILCS 140/7) apply to e-mail communications, which, like telephone conversations, are often

spontaneous and uncorrected, or in “draft” form not generally intended for circulation or

distribution? If a quorum of a board or committee logs on to a chat room, are they “meeting” as

this term is used under the Open Meetings Act, and do their communications, along with any

material distributed among the members, constitute a quorum, deemed to be proper subjects of an

FOIA request?

Some of these and similar questions are easier to answer; others are complex and factdeterminative

and will require analysis and likely spawn a barrage of requests for Attorney

General opinions and litigation, both of which avenues should lead to clarification. Until then,

prudence is recommended, along with an appreciation of the rationales underlying Freedom Oil

Co. v. Illinois Pollution Control Board, 275 Ill.App.3d 508, 655 N.E.2d 1184, 211 Ill.Dec. 801

(4th Dist. 1995), and Scott v. Illinois State Police Merit Board, 222 Ill.App.3d 496, 584 N.E.2d

199, 165 Ill.Dec. 20 (1st Dist. 1991), which would suggest that e-mail and chat room exchanges,

like telephone conferences, are simply another medium of communication that can be used by

elected and appointed public officials to discuss or conduct the business of the public bodies they

represent. When that is either the goal of the connection or the unintended consequence of their

joint participation, then a meeting has occurred if there is a quorum, and the action is subject to

the Open Meetings Act and the FOIA if documents like e-mail are generated or utilized.

Whether personal e-mail is a public record is the harder question. If the communications are

indeed personal and are promptly erased, a good argument can be made that they are not in the

control or possession of the public body and so never become public records. When they pertain

to the business of the entity, the safest way to proceed is by treating them as public records

subject to the FOIA but also governed by the exemptions. Beyond these few general guidelines,

municipal officials and attorneys will be charting new terrain and possibly making new law.

13. What Are the Research Tools Available To Interpret the FOIA?

a. [3.69] Books and Pamphlets

Adler, Allan and Morton H. Halperin, LITIGATION UNDER THE FEDERAL FREEDOM OF

INFORMATION ACT AND PRIVACY ACT (9th ed. 1983).

Franklin, Justin D. and Robert F. Bouchard, GUIDEBOOK TO THE FREEDOM OF

INFORMATION AND PRIVACY ACTS (2d ed. 1986).

Lucansky, Patrick A. and Terrence M. Barnicle, Manual on Illinois “Sunshine Laws”: The Open

Meetings and Freedom of Information Acts (June 2004) (a pamphlet published and

periodically updated by the Illinois Municipal League).

Madigan, Lisa, A Guide to the Illinois Freedom of Information Act (rev. 2004) (issued by the

Office of the Illinois Attorney General and available at the Attorney General’s Web site at

www.illinoisattorneygeneral.gov/government/foia_illinois.html).

b. [3.70] Annotations from A.L.R.

Federal Freedom of Information Act

“Agency” defined 68 A.L.R.Fed. 842 (1984)

Exemptions

“Agency” defined 57 A.L.R.Fed. 295 (1982)

“Confidential source” defined 59 A.L.R.Fed. 550 (1982)

Construction and application of to open meeting

requirement of Sunshine Law 82 A.L.R.Fed. 465 (1987)

Identity of informers: personal privacy 52 A.L.R.Fed. 181 (1981)

Interagency or intra-agency memos 7 A.L.R.Fed. 855 (1971)

Invasion of personal privacy 52 A.L.R.Fed. 181 (1981)

Investigatory files 55 A.L.R.Fed. 583 (1981)

Medical files 104 A.L.R.Fed. 734 (1991)

Personnel files 104 A.L.R.Fed. 757 (1991)

“Records” defined 153 A.L.R.Fed. 571 (1999)

Similar files 106 A.L.R.Fed. 94 (1992)

Staff instructions 139 A.L.R.Fed. 299 (1997)

State Freedom of Information Act

Exemptions

“Agency” defined 27 A.L.R.4th 742 (1984)

Attorney-client 34 A.L.R.5th 591 (1995)

Computer trade secret 53 A.L.R.4th 1046 (1987)

Interagency or intra-agency memos 26 A.L.R.4th 639 (1983)

Invasion of personal privacy 26 A.L.R.4th 666 (1983)

Pending or prospective litigation 35 A.L.R.5th 113 (1996)

“Records” defined 27 A.L.R.4th 680 (1984)

Trade secrets 27 A.L.R.4th 773 (1984),

59 A.L.R.4th 641 (1988)

Right to receive information in particular medium or format 86 A.L.R.4th 786 (1991)

c. [3.71] Legal Encyclopedias

37A AM.JUR.2d Freedom of Information Acts §1, et seq. (2005)

d. [3.72] Internet Resources

The Freedom of Information Center — http://foi.missouri.edu

National Freedom of Information Coalition — www.nfoic.org

Society of Professional Journalists (freedom of information links) — www.spj.org/foia

14. [3.73] Is There Guidance on the Retention and Destruction of Public Records?

The process for the retention and destruction of records is contained in the Local Records

Act, which provides for the destruction of local public records only upon the authorization of the

State Archivist. The Office of State Archivist functions under the Secretary of State and can be

reached at 217/782-4682. The Office of State Archivist has not developed any specific list or

schedule for the destruction of records. Instead, its regulations require that any municipal official

desiring to destroy records invite a representative of the Archivist (which in some cases is an

employee of a local records commission) to view the records of the municipality. The Archivist

will then give the municipality a schedule that it can follow. Apparently, the reason for this

personal approach is that the Office of State Archivist is very interested in the retention of

historical records and will, usually quite promptly, provide the general rules regarding this

process.

15. [3.74] This Is a Lot To Absorb! What Is the Bottom Line?

The Freedom of Information Act exemptions promote important public interests in protecting

individuals’ personal privacy and the security and confidentiality of certain governmental records

and proceedings. If a requested record falls within one of the FOIA’s exemptions, municipalities

should deny the request or redact the protected information. Nonetheless, the process of

determining whether an exemption applies should not be harrowing. If it is unclear, err on the

side of disclosure. Even if you make the wrong decision and release exempted information, the

FOIA does not provide remedies against a municipality. If you strongly believes that information

should not be disclosed but are unsure whether an exemption applies, contact a municipal

attorney. He or she will be able to make an educated decision, based on prior case law, as to

whether disclosure is proper.

S. [3.75] Press and Media Relations

A good relationship with representatives of the press and other public media can be an

invaluable asset to the operation of municipal government. The news media can inform the public

of municipally sponsored events and activities. It can report in an accurate manner the events that

take place at council or board meetings. It can serve to state both sides of a controversy so that

members of the public can better judge for themselves which side is to be supported. The press

can quickly put a stop to rumors that tend to be believed in the absence of the hard facts that the

press can furnish. The news media can do all of these things when a municipal government is

responsive to the media’s legitimate right of inquiry and investigation. When, however, municipal

government refuses to cooperate, the press takes on the dual characteristics of the opposition

candidate for mayor and one’s nosiest relative.

A few suggestions can be set down for municipal officials in dealing with the press and other

public media:

1. At council or board meetings make available to the press copies of the agenda, proposed

ordinances, and important communications. This procedure makes the reporter’s job easier and

diminishes the chance of error in the published reports of the meeting.

2. Never refuse to talk to the press informally. While there may be occasions at which a

municipal official may not desire to face a television camera or news conference until he or she

knows all the facts of a situation and has had time to think about them and to formulate his or her

position, the official should be willing to talk to the press informally or off the record. The only

exception to this golden rule is in those instances when the press in your area has made it clear

that they will not respect your request for an informal meeting or discussion. On many occasions,

these conferences provide the official with the latest information and in addition may alert him or

her to the kinds of responses and actions he or she may be called on to take.

3. Keep in contact with the press at occasions other than in times of news crises. The press

is often anxious to be informed of items of general interest to fill the pages beyond the front page.

If you expect the editor to give you page one coverage on the few occasions a year that you may

warrant it, it would be best to have aided the editor to fill pages eight and twelve during the rest

of the year.

4. Evaluate the effects of local cablecasting on the politics of your community and your

area.

III. [3.76] SAMPLE RULES OF ORDER AND PROCEDURE

Each municipality should pass an ordinance establishing the rules and regulations governing

the functions of the council or the board. The following is the suggested content of such an

ordinance, tailored for a city. It can be easily adapted for use in a village or other particular form

of municipal government.

The following rules of order and procedure shall govern the deliberations and meetings

of the council and the committees thereof.

1. Meetings. The regular meetings of the council shall be held on the __________ day in

each month of the year at the hour of __________ in the city hall, unless another site shall

be specified.

Any regular meeting falling on a legal holiday shall be held on the next following

weekday rather than weekend day at the same hour and place. [NOTE: The meeting may be

held on a holiday, if desired, by omitting this sentence. 5 ILCS 120/2.01.]

Special meetings may be called by the mayor or by any three members of the council by

written request or notice filed with the clerk at least 50 hours prior to the time specified for

such meeting. The clerk may accept shorter notice as long as statutory notice is provided. At

least 48 hours’ written notice of such special meeting shall be given by the clerk, which

notice shall specify the time of and contain an agenda for such meeting and shall be

delivered to each member of the council personally if the member can be found, and if the

member cannot be found, a copy of the notice shall be left at the home of the council

member in the presence of an adult member of the council member’s family or in the

absence of such person shall be left at the residence. The clerk shall cause an affidavit

showing service of such notice as herein provided to be filed in the clerk’s office at the time

fixed for the special meeting, together with a statement of compliance with the notices to

members of the media as provided in the Open Meetings Act, 5 ILCS 120/1, et seq. All

meetings of the council, including special and adjourned meetings, except closed sessions

thereof, shall be open to the public, as is required by statute.

In the case of an emergency, a meeting may be called upon such notice as is practicable.

The meeting may be called by the mayor or by any three aldermen. The convening

authority shall notify all other members of the council, the clerk, and members of the media

who are entitled to such notice.

2. Presiding Officer. The mayor shall preside at all meetings of the council, but the

mayor has the option of voting only in those instances in which the state statutes or the

municipal ordinances require more than a majority vote of the corporate authorities or in

the event of a tie or when one half of the aldermen elected have voted in favor of an

ordinance, resolution, or motion, even though there is no tie vote.

During the absence or disability of the mayor, the council shall elect one of its number

mayor pro tem of the council, and the member shall act as presiding officer of the council.

When the absence or disability of the mayor is to be of a very short duration and no

individual is required to be granted the powers of the mayor, the council shall elect one of

its members temporary chairman. The mayor pro tem or the temporary chairman, when

acting as presiding officer, shall vote on all questions on which the vote is taken by “yeas”

and “nays,” in the position as alderman, with that name being called last. The mayor pro

tem shall have all of the powers and duties of the mayor; the temporary chairman shall

have only such powers and duties as accrue to a presiding officer.

Each meeting of the council shall convene at the time appointed for the meeting, as

provided by ordinance. The clerk or, in the clerk’s absence, a member of the council or a

recording secretary shall thereupon immediately call the roll of members. If no quorum is

present, the council need not thereby stand adjourned, but the members present shall be

competent, by majority vote, to adjourn or recess the council to another time or date prior

to the next regularly scheduled meeting.

If no quorum is present and the members present desire to compel the attendance of

absent members, they themselves, or by their agents, shall attempt to communicate the call

to the session personally to the absentees. Any absent member who refuses to attend the

meeting (or a new meeting to which the members present have adjourned) after personal

notice to attend may be fined by the members present a sum not to exceed $50 for each

occurrence.

3. Quorum — Order of Business. A quorum for the transaction of business shall consist

of a majority of the corporate authorities.

4. Agenda. Any item on the agenda may be discussed and acted on. At regular

meetings, items can be added to an agenda under whatever rules of procedure the council

has adopted. Items added to the agenda may only be discussed and/or referred to

committee, but they cannot be acted on. For special meetings, only those items set forth in

the notice of the meeting can be discussed or acted on.

The order of business shall be as follows:

a. call to order by presiding officer;

b. pledge of allegiance to flag;

c. roll call;

d. establishment of quorum;

e. reading and approval (with corrections and additions, if any) of the journal of the

proceedings of the previous meeting or meetings;

f. reports and communications from mayor and other officers:

Mayor

Treasurer

Clerk

Attorney

Engineer

Board of Appeals

Plan Commission;

g. reports of the standing committees:

Finance

Public Works

Public Safety

Public Property

Ordinances and Licenses

Planning

Elections

Building and Zoning;

h. reports of special committees;

i. list of items to be acted on, including petitions, communications, orders, motions,

ordinances, and resolutions by title or description;

j. public discussion and/or comments from the floor;

k. old business items, listed by topic;

l. new business items, listed by topic or added to the agenda at the meeting (latter may

be discussed but not acted on);

m. payment of bills;

n. adjournment.

5. Duties of the Presiding Officer. The presiding officer shall preserve order and

decorum and may speak to points of order in preference to other members and shall decide

all questions of order subject to appeal. The presiding officer may speak to matters being

considered by the council without relinquishing the Chair. If the presiding officer refuses to

allow the aldermen to exercise their right to appeal a decision of the Chair, the aldermen

may consider and pass on the matter in spite of the Chair’s failure to grant them an appeal.

In case of any disturbances or disorderly conduct, the presiding officer shall have the

power to require the chamber to be cleared. Unless they are participating in the

disturbance, members of the press should be allowed to continue to observe the meeting.

6. Duties of Members. While the presiding officer is putting the question, no member

shall walk across or out of the council chamber.

Every member, previous to speaking, making a motion, or seconding a motion, shall

address himself to the presiding officer and seek recognition and shall not proceed with any

remarks until recognized and named by the Chair. The member shall confine remarks to

the question under debate, avoiding personalities and refraining from impugning the

motives of any other member’s argument or vote.

When two or more members address the Chair at the same time, the presiding officer

shall name the member who is first to speak. The aldermen may by two-thirds vote expel an

alderman for disorderly conduct. Such alderman may not be expelled a second time for the

same offense.

7. Visitors. Except during the time allotted for public discussion and comment, no

person other than a member of the council shall address that body, except with the consent

of two of the members present. The council by a majority vote may limit the time available

for public comment.

8. Presentation of New Business and Deferment. Upon the request of any two aldermen

present, any report of a committee of the council shall be deferred (for final action thereon)

to the next regular meeting of the council after the report is made.

9. Debate. No member shall speak more than once on the same question, except with

the approval of a majority of the aldermen or trustees, and then not until every other

member desiring to speak shall have had an opportunity to do so; provided, however, that

the proponent of the matter under consideration or the chairman of the committee whose

report is under consideration, as the case may be, shall have the right to open and close

debate. No member shall speak longer than ten minutes at any one time, except by consent

of the council; and in closing debate on any question, as above provided, the speaker shall

be limited to five minutes, except by special consent of the council.

While a member is speaking, no member shall hold any private discussion.

10. Call of Member to Order. A member, when called to order by the Chair, shall

thereupon discontinue speaking, and the order or ruling by the Chair shall be binding and

conclusive, subject only to the right of appeal.

11. Appeals from Decisions of the Chair. Any member may appeal to the council from a

ruling of the Chair and, if the appeal is seconded, the member making the appeal may

briefly state the reason for the appeal, and the Chair may briefly explain any ruling; but

there shall be no debate on the appeal, and no other member shall participate in the

discussion. The Chair shall then put the question, “Shall the decision of the Chair be

sustained?” If a majority of the members present vote “No,” the decision of the Chair shall

be overruled; otherwise, it shall be sustained.

12. Question of Personal Privilege. The right of a member to address the council on a

question of personal privilege shall be limited to cases in which the member’s integrity,

character, or motives are assailed, questioned, or impugned.

13. Voting. Every member who shall be present when a question is stated from the

Chair shall vote thereon or abstain at the time that the member’s name is first called. A

failure to vote shall be counted as an abstention and will count in the manner established by

law. Any member required to recuse himself or herself on a matter due to conflict of

interest shall so declare.

14. Special Order of Business. Any matter before the council may be set down as a

special order of business at a time certain if two thirds of the aldermen present vote in the

affirmative, but not otherwise.

15. Seconding of Motions Required; Written Motions — Reading of Motions, Resolutions,

Ordinances, Minutes, and Correspondence. No motion shall be put or debated in the council

unless it is seconded, except for a motion to reconsider, which will be debated if one

member who voted with the majority makes the motion. Neither the maker nor the person

seconding a motion shall be required to vote in favor of that motion. When a motion is

seconded, it shall be stated by the presiding officer before debate, and every motion in the

council, except motions of procedure, shall be reduced to writing, if required by a member,

and the member who proposed the motion shall be entitled to the floor. No resolution,

ordinance, or minutes need be read prior to consideration, but such items may be read in

response to a motion passed seeking such reading. Copies of correspondence received by the

clerk or mayor shall be distributed before the meeting to all members of the corporate

authorities. While no resolution, ordinance, or minutes need be read, the corporate

authorities can act only on matters that have appeared on the agenda of the meeting, and an

explanation shall be offered as to the contents of any resolution or ordinance.

Correspondence received by municipal officials need not be read in full at council meetings

unless pertinent to a matter before discussion. Correspondence received may be

summarized at council meetings.

16. Withdrawal of Motions. If the maker of the motion desires to withdraw the motion,

the member may do so. The person seconding the motion may renew the motion as its

maker and seek a new seconder. If the seconder of a motion wishes to withdraw a second,

the member may do so. The maker of the motion may seek an additional seconder before

the motion is ruled out of order for lack of a second. Neither the maker nor the seconder of

a motion may withdraw the motion, except with the consent of a majority of the council,

once discussion on the motion has ceased.

17. Division of Questions. If any question under consideration contains several distinct

propositions, the council by a majority vote of the members present may divide the

question.

18. Record of Motions. In all cases in which a resolution or motion is entered in the

journal, the name of the members moving and seconding it shall be entered.

19. Taking and Entering the Votes; Explanation of the Votes. Whenever a vote may not

by statute or ordinance be conducted by voice vote alone, the “yeas” and “nays” on any

question shall be taken and entered in the journal. When the clerk has commenced to call

the roll of the council for the taking of a vote by “yeas” and “nays,” all debate on the

question before the council shall be deemed concluded, and during the taking of the vote a

member shall be permitted briefly to explain his or her vote and shall respond to the calling

of his or her name by the clerk by answering “yea,” “nay,” “abstain,” or “recuse,” as the

case may be.

20. Announcement of Votes. The result of all votes by “yeas” and “nays” shall be

announced by the clerk. The clerk shall designate the manner in which abstentions are to be

counted and whether the motion has passed or failed. Recusals shall not be counted toward

a vote.

21. Precedence of Motions. The following chart sets out commonly used motions in the

order of their precedence as determined by ROBERT’S RULES OF ORDER. The Main or

Principal Motion is at the bottom in rank. The other motions may be made while the Main

Motion is pending and must be dealt with before the Main Motion. They are arranged

according to rank, the highest at the top of the list. Incidental motions, however, have no

rank among themselves yet take precedence over subsidiary motions. When any one motion

is immediately pending, the motions above it on the list are in order, and those below are

out of order.

a. Privileged Motions.

Undebatable: Fix Time To Adjourn

Adjourn

Take Recess

Question of Privilege

b. Incidental Motions.

Undebatable: Division of Assembly

Division of a Question

Filling Blanks

Objection

Parliamentary Inquiry

Point of Information

Point of Order

Suspend the Rules [requires a two-thirds vote]

Withdraw a Motion

Debatable: Appeal

c. Subsidiary Motions.

Undebatable: Lay on the Table

The Previous Question (Close Debate) [requires a two-thirds vote]

Limit or Extend Debate

Debatable: Postpone to a Definite Time

Refer to a Committee

Amend the Amendment

Amendment

Postpone Indefinitely

Main or Principal Motion

d. Miscellaneous Motions. After action has been taken on Main or Principal Motion:

Take from Table (undebatable)

Rescind (debatable) [requires two-thirds vote without notice, requires

majority vote with notice]

Reconsider (debatable)

Ratify (debatable)

22. Motion To Refer. A motion to refer to a standing committee shall take precedence

over a similar motion to refer to a special committee.

23. Motion To Amend. A motion to amend an amendment shall be in order, but one to

amend an amendment to an amendment shall not be entertained. An amendment modifying

the intention of a motion shall be in order, but an amendment relating to a different subject

shall not be in order.

On an amendment to “strike out and insert,” the paragraph to be amended shall first be

read as it stands, then the words proposed to be stricken out, then those to be inserted, and

finally the paragraph as it will stand if so amended shall be read.

24. Filling of Blanks. When a blank is to be filled and different sums or times proposed,

the question shall be taken first on the least sum or the longest time.

25. Motion To Substitute. A substitute for any original proposition under debate or for

any pending amendment to such proposition may be entertained and, if accepted by the

council by vote, shall entirely supersede the original proposition or amendment, as the case

may be. Provided, however, that when the motion to substitute is a substitution rather than

an amendment to the previous proposition, it can be discussed, but it cannot be acted on if

the rights of the public to be aware that the matter would be voted on could not be

reasonably apprehended from the agenda.

26. Reconsideration. A vote or question may be reconsidered at any time during the

same meeting or at the first regular meeting held thereafter. A motion for reconsideration,

once having been made and decided in the negative, shall not be renewed, nor shall a

motion to reconsider be reconsidered. No motion to reconsider the approval or denial of the

recommendation of an advisory body required to hold public hearings shall be entertained

except at the same meeting at which the original action was taken and after absent council

members have joined the meeting or after the matter has been referred to the advisory body

for a further hearing and recommendation. When a motion to reconsider such a motion is

made at the same meeting as the passage of the original motion, it may be tabled to a later

specified date.

A motion to reconsider must be made by a member who voted on the prevailing side of

the question to be reconsidered, unless otherwise provided by law, provided, however, that

when a motion has received a majority vote in the affirmative but is declared lost solely on

the ground that a greater number of affirmative votes are required by statute for the

passage or adoption of such motion, then a motion to reconsider may be made only by those

who voted in the affirmative on the question. A motion to reconsider need not be seconded.

27. Standing Committees. The following shall be the standing committees of the council:

a. Committee on Finance

b. Committee on Public Works

c. Committee on Public Safety

d. Committee on Public Property

e. Committee on Ordinances and Licenses

f. Committee on Planning

g. Committee on Elections

h. Committee on Building and Zoning

The mayor shall appoint the members of the committee and a chair.

Any report of a committee shall be deferred for final action thereon to the next regular

meeting after the report is made, upon the request of any two members of the council.

28. Jurisdiction of Committees. [Define jurisdiction and duties of each committee.]

29. The Journal. The clerk shall keep the journal of the proceedings of the council.

Within no more than 14 days after each meeting of the council, the clerk shall supply to

each member at his or her residence a typewritten copy of the proceedings (minutes). The

journal shall be approved periodically. The clerk’s draft of the journal of proceedings may

be amended to reflect correctly the view of the legislative body as to the events that

occurred.

30. Style of Ordinances. The style of all ordinances shall be “BE IT ORDAINED by the

City Council of _______________” as is provided by statute.

31. “Yea” and “Nay” Vote. The “yeas” and “nays” shall be taken on the passage of all

ordinances and on all propositions to create any liability against the city, or for the

expenditure or appropriation of its money, and in all other cases at the request of any

member of the council; such vote shall be entered on the journal of the proceedings, as is

provided by statute.

32. Approval or Veto. All ordinances of whatever kind, and any resolution or motion

creating any liability against a municipality or providing for the expenditure or

appropriation of its money, shall be deposited with the city clerk, and if the mayor approves

thereof, the mayor shall sign it, and such as are not approved the mayor shall return to the

council with objections thereto in writing at the next regular meeting occurring not less

than five days after the passage thereof. The mayor’s veto may extend to any one or more

items or appropriations contained in any ordinance making an appropriation or to the

entire ordinance; and in case the veto extends only to a part of such ordinance, the residue

thereof shall take effect and be in force. If the mayor shall fail to return any ordinance with

written objections thereto by the time stated above, the mayor shall be deemed to have

approved the ordinance, and it shall take effect accordingly.

Upon the return of any ordinance by the mayor, the vote by which it was passed may be

reconsidered by the council at its next regular meeting after the meeting at which the mayor

presented the veto. If, after such reconsideration, two thirds of all the members elected to

the council shall agree, by “yeas” and “nays,” to pass the ordinance, it shall go into effect

notwithstanding that the mayor has refused to approve it.

33. Record of Ordinances. The clerk shall keep a record in an ordinance book of all

ordinances passed.

34. Publication. All ordinances imposing any penalty for a violation thereof or making

any appropriation shall be published as required by statute, either in a newspaper or in

pamphlet form, in which case the ordinance in its pamphlet form shall be displayed for a

reasonable period in a public place in the city hall.

35. Time of Taking Effect. No ordinance that must be published to comply with Rule 34

above shall go into effect until ten days after it is so published unless a statement of the

urgency of the ordinance is contained in it and it achieves passage by a two-thirds vote of

the members of the corporate authorities then holding office. In all other cases, the

ordinances shall go into effect upon its passage, as provided by statute, even though the

operation of the ordinance may not take effect until a later date.

36. Adoption of ROBERT’S RULES OF ORDER. The rules of parliamentary practice

contained in the latest published edition of ROBERT’S RULES OF ORDER shall govern

the council in all cases to which they are applicable and in which they are not inconsistent

with the special rules of this council or the statutes or laws of the state.

37. Temporary Suspension of Rules; Amendment of Rules. These rules may be

temporarily suspended, repealed, altered, or amended by a two-thirds vote of the corporate

authorities then holding office.

38. Censure of Members; Expulsion of Members. Any member acting or appearing in a

lewd or disgraceful manner, or who uses opprobrious, obscene, or insulting language to or

about any member of the council, or who does not obey the order of the Chair, shall be,

upon motion, censured by a majority vote of the corporate authorities and, in addition, may

be fined not to exceed $50 for each such occurrence. With the concurrence of two thirds of

the aldermen elected, the council may expel an alderman, but not a second time for the

same offense.

IV. SEVENTEEN WAYS TO SHORTEN AND IMPROVE MUNICIPAL

MEETINGS

A. [3.77] Prepare an Agenda for All Meetings

Helping with the task of preparing an agenda for all meetings is the fact that the Open

Meetings Act requires both regular and special meetings of governmental bodies to have these

agendas. It should be agreed in advance who in the municipal government has the job of

preparing agendas. The mayor is one choice since, as the presiding officer, he or she makes an

initial determination as to what particular matters are “in order.” At regular meetings, items can

be added to an agenda under whatever rules of procedure the community has adopted. Items

added at the meeting can be discussed but they cannot be acted on. See Rice v. Board of Trustees

of Adams County, Illinois, 326 Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill.Dec. 278 (4th Dist.

2002). For special meetings, the convening authority establishes the agenda, and only those items

set forth in the notice of the meeting can be discussed or acted on.

B. [3.78] Don’t Clutter Up an Agenda with Items Not Ready To Be Discussed or That

Have Been Discussed to Death

Matters that have appeared on a municipal agenda but are not ready to be discussed because

some item of information is missing should be tabled until the date when this piece of information

is available. The only exception to the use of a motion to table until a specific event occurs is

probably a matter that comes before the municipal body after a public hearing before some

recommendatory body. Since the public has a right to follow this matter from date to date, any

motion to table should be to a specific date. If all of the needed material is not ready when this

date arrives, the matter should be continued again to a definite date.

C. [3.79] Finalize Decisions

If a matter of controversy has been finally decided and there is a desire to prevent the issue

from being raised again in the same form, a motion to reconsider the matter should be made by

someone on the prevailing side. If the motion to reconsider fails, as it should, then under most

rules of order, the discussion is over because this item cannot come before the legislative body

again in the same form, absent any material change of circumstances.

If someone wishes to revisit the same matter again following a failed motion to reconsider as

highlighted above, the presiding officer can then simply rule the motion out of order. Only if the

chair’s out-of-order decision is overturned on a motion to appeal can discussion of the same

matter take place. Attempts to bring to the council the identical matter in a slightly new dressing

can be disposed of quickly if a majority votes to limit debate to a specific period of time and

insist that the question be called after the debate is concluded. Democratic principles can be

followed and minority rights protected without turning every matter of controversy into a neverending

story.

D. [3.80] Make Substantial Use of a Consent (Omnibus) Agenda

The Illinois Municipal Code contains a wonderful parliamentary device known as the

“consent agenda.” 65 ILCS 5/3.1-40-40. Utilizing this device, a group of diverse items, including

simple motions, motions to authorize the expenditure of funds, motions to pass ordinances or

resolutions, motions to receive or accept documents, and all other varieties of governmental

actions can be approved through a single action that has two parts. First, by unanimous action, the

governmental body must agree what items are to be acted on under the consent agenda. Then a

single vote is taken on the acceptance or rejection of all items on the consent agenda. An

alderman or trustee may agree on a list of consent agenda items and then vote “no” for all of

them. The person voting must vote the same way on each item. If any item on the consent agenda

allows or requires the vote of the mayor or village president, he or she should vote on both

motions. The establishment of the consent agenda can be accomplished without debate or with

debate and an opportunity being given to elected officials, prior to the vote, to ask questions about

motions. Sometimes, a simple answer or two from a colleague or a staff member may permit the

item to be placed on the consent agenda. The use of this device avoids the need for meaningless

or pro forma debate on matters that require no debate or when enough debate has taken place on

previous occasions to make a simple vote an adequate legislative device. By law, all items that

are placed on the consent agenda must be explained briefly to the public or press in attendance.

The explanation can be short and straightforward.

E. [3.81] Consider a Realistic Limitation on Debate and on Meeting Length

Governmental business debated past 11:00 p.m., except for legislative bodies composed of

lounge singers or insomniacs, is probably not in the public interest. If a governmental body

consistently meets beyond 11:00 p.m., the time for the beginning of the meeting should either be

moved up or adjourned meetings should be considered. It is probably not fair to a member of the

public, a property owner, businessperson, or real estate developer to take up a matter of

importance at a time when most citizens are asleep. If you, yourself, were seeking the approval of

a governmental body, you probably would not want the decision-makers to hear your important

matter when the members of the body were grumpy, impatient, and anxious to know the score of

the Monday Night Football game. In the event that there is an important and unique matter before

the council or board, the curfew can be waived by an extraordinary majority vote. Absent such a

vote, which should be employed rarely, a curfew and a reasonable limit on debate should, over

time, teach the governmental body temporal discipline, facilitate the expeditious and efficient

conduct of business, and even encourage public participation.

F. [3.82] Consider the Use of Intergovernmental Agreements

Much time is taken at governmental meetings in discussing the intent of other governmental

bodies. What are the thoughts of the corporate authorities of another municipality that is

considering the annexation of land also of interest to your community? Will a school district

agree to abide by your zoning and subdivision codes? How will a library district react to your

thought of creating a municipal library? Much time in regular board or council meetings and in

committee meetings can be spent in attempting to predict the actions of other governmental

bodies. Sometimes the community is even tempted to go into an improper closed session to

evaluate rumors about the action of another governmental body. Often the best way to determine

the actual views of another governmental body is to hold a joint meeting at which a quorum of

both governments are in attendance. These meetings are perfectly legal under Illinois law,

provided that adequate public notice is given. If the subject that governments are discussing

relates to public matters such as annexation, even competing governments can discuss their

positions without violating state or federal antitrust laws. If common views are reached at these

meetings, how can the entities bolster their newfound cooperation?

In Illinois, intergovernmental agreements permit communities to enter into long-term

agreements to carry out matters on which mutual agreement is attained. Both Article VII, §10, of

the Illinois Constitution and various state statutes authorize intergovernmental agreements. See,

e.g., 65 ILCS 5/11-12-13. For non-home rule communities, these agreements allow for an

expansion of powers since governmental bodies can agree to anything not prohibited by state law

or by local ordinance. They do not need to find specific statutory authority for the actions they

take, but they can rely on the benefit of extra powers derived through entering into these favored

agreements.

G. [3.83] Limit or Control Public Comment

Under the Open Meetings Act, most meetings must be open. Open meetings, however, are

not the same thing as “free-for-alls” between a legislative body and its opponents. Meetings must

be open to the public, but the public has no specific right to participate other than in those

situations in which a public hearing is required. An example of this required public participation

is the hearing that the corporate authorities must hold before acting on an annexation agreement.

When the law requires that a public hearing take place, the governmental body must make certain

that there are adequate physical facilities to accommodate the people who wish to make their

views known. These individuals must be given a reasonable time to express their views, and at

least some of them must be given the right to cross-examine other witnesses. A failure to proceed

reasonably in this manner can invalidate any action taken subsequent to the public hearing.

Absent such a public hearing requirement, however, the legislative body may, like the state

legislature, limit the role of the public to that of observers.

Most municipalities do allow the public to speak at their meetings. The time and manner in

which this public participation is allowed is entirely within the discretion of the legislative body.

No single member of the legislative body has the right, absent some rule to this effect, to

authorize audience involvement in a council or board meeting. Even the mayor cannot do so if

there is a procedural rule, passed by the council or board, that forbids or restricts this practice.

In many communities, comments from the public at specific times or even during the middle

of board or council meetings are not disruptive and do not unduly extend these meetings.

Unfortunately, in some communities, the experience is different. In these communities, action

should be taken to prevent the disruption or undue extension of legislative meetings as a result of

public participation. One possibility is to require would-be public speakers to sign up prior to the

beginning of meetings in order to reserve a designated speaking slot. As previously pointed out,

the public may, regardless of disruptiveness, be forbidden from oral participation in meetings

altogether. While such a move is possible, it is not advisable from a political standpoint.

Written petitions or written comments and materials should be accepted by the municipality

and distributed to the elected officials. A procedural rule can be established that provides that

distribution to the council or board will be guaranteed only if the materials are received in

adequate time to allow for reproduction and review. A member of the public cannot, for example,

demand that the council or board hold off acting on a matter until its members have reviewed a

15-page evaluation of a proposed rezoning.

Most municipalities will want to allow for public comment at their meetings. In many

instances, a place on the agenda is set out for public comment at the beginning of a meeting. This

is an appropriate place to include public comment since individuals can raise issues regarding

matters on the agenda and they are not required to remain for the entire meeting. Some

municipalities allow public comment at the beginning of a meeting for any matter not on the

agenda and will accept comments during the meeting as matters of interest occur on the agenda.

In either case, the length of time that someone is entitled to take in addressing the council or

board can be limited to a few minutes. If there is such a rule in effect, it should be clearly stated at

the beginning of the meeting, and it should not be applied in a discriminatory manner.

Some municipalities provide for public comment only at the end of a meeting. This device

assures the council or board that only those individuals with a serious interest in a particular

matter and a hearty constitution will eventually be permitted to speak after remaining in the

council or board chamber for several hours. Of course, this may encourage comment on

everything that happens during the meeting, and a limitation on the time when a speaker may

address the council or board is desirable even if the time for comment is deferred.

Municipal officials should be aware that they are liable for potential civil rights suits if they

discriminate in the manner in which they allow or seek to limit public criticism. The courts have

held that elected officials do not possess legislative immunity for actions taken during the public

comment portion of meetings. Finally, and in order to deal with an extreme circumstance, the

council or board should have rules of procedure or ordinances that permit disruptive individuals

to be removed from the council or board chamber. These individuals’ actions should clearly be

disruptive before an arrest is effected. It may be desirable to use videotape to record the

disruption before the police are authorized to remove individuals from the board or council

chamber.

H. [3.84] Use Consultants Wisely

Consultants are not performers, and they should not be encouraged to cause meetings to be

lengthened through the presentation of lengthy and erudite reports. Like a dentist, who is not

required to pull a tooth each time you visit, a lawyer or engineer should be told that he or she is

not paid by the word or the drawing orally reported on. The submission of written reports in

advance of council or board meetings should be encouraged. In this situation and in all other

cases, members of the board or council should be requested to ask questions of the consultants

before board or council meetings. A consultant or a staff member should not be allowed to muse

over a problem at length at a meeting when a correct and short answer, perhaps even in writing,

could have been submitted prior to the meeting. Although the traditions of great public speaking

may suffer, the advent of word processors, photocopiers, and e-mail has allowed even small

communities to operate more efficiently through the written rather than the spoken word. Matters

on a consent agenda, especially those that have previously been fully discussed at an advisory

committee or council committee meeting, should not be presented to the council or board by a

consultant or a staff member as if it were a totally new matter. Succinct answers and reports

should be encouraged.

I. [3.85] Limit Council or Board Debate

Every mayor has a different style. Some mayors run their meetings like drill sergeants while

others run their meetings like psychiatrists. Each approach is valid as long as it does not interfere

with the full discussion of public issues or turn these discussions into lengthy oratory diatribes. A

mayor who allows free and unlimited discussion of all matters must rethink this philosophy if

meeting lengths extend beyond the council’s or board’s endurance level. When a mayor is

unwilling to limit debate, a council or board majority may do this for him or her. The council or

board can pass a procedural rule that limits debate on a particular matter or even a general rule

limiting all comments to a certain number of minutes. A rule can also prevent a council or board

member from retaking the floor until all other council or board members who wish to speak have

had an opportunity to do so. In addition, a council or board member can be limited in the total

number of times that he or she is permitted to speak on a particular matter. As long as rules of this

nature are applied fairly and uniformly, the process of debate should not suffer.

J. [3.86] Observe Timeliness

Public meetings should start on time. Meetings should begin at the appointed hour if a

quorum is present. Except in unusual circumstances, matters should not be deferred until a full

council or board is present. In cases in which this is done, the matter should not be first discussed

by the members in attendance and then deferred to a later date. This practice simply causes

matters to be discussed in full on more than one occasion. When a matter is postponed until all

members interested in this crucial item can be present, everyone interested in discussing this

matter should be informed in advance of the meeting. This will not only prevent double

discussion but will discourage members of the public from appearing to discuss a matter that will

not be acted on at the meeting. It will also save parties with hired consultants from the cost of

bringing them to meetings only to discover that the matter will be tabled until the next meeting.

K. [3.87] Utilize Legally Noticed Pre-Meeting Sessions

Some communities have found that the formalistic process of engaging in a council or board

meeting prevents members from asking questions and stating views in a more informal setting.

Prior to the passage of the Open Meetings Act, some communities held “pre-board meetings” at

which discussions of the agenda took place. These meetings are still possible under Illinois law,

as long as they are advertised as either Committee of the Whole meetings or reflect an earlier

starting time than the normal municipal meeting. For example, a board or council that begins its

normal meeting at 8:00 p.m. can give public notice of an open “pre-meeting” session at 7:30 p.m.

Minutes should be kept for “pre-board or council meetings,” and the group can go into closed

session if the requirements are met.

At this “pre-board or council” open meeting, the mayor or administrator may go over the

agenda and answer any questions that board or council members feel more comfortable in raising

in this informal setting. Sometimes, at that meeting, it can be agreed that certain items should be

deferred to a later time or that additional specific reports should be submitted before the council

or board is ready to act. If one combines this process with the use of a “consent agenda,” the

council or board meeting can principally address only those matters that need to be actively

debated in a full public forum. Members of the press should be encouraged to attend this “preboard

or council meeting.” They can be invited to address questions to the board at this time.

Even if they are not allowed to participate, the information that the members of the press learn

can help them to better understand and interpret the matters that are discussed subsequent to the

council or board meeting. Some communities also make a member of the council or board

available to citizens to answer questions before a formally called meeting. As long as no

deliberations of the council or board take place, these open sessions can include a majority of a

quorum who are there only to answer citizens questions. If no majority of a quorum is present or

if the elected officials present take no collective action and do not deliberate, this informal session

need not be treated as a meeting.

L. [3.88] Hold Retreats

Retreats by boards or councils are effective both for communities that are experiencing strife

and those that are not. With one exception mentioned below, the retreats must be noticed as

special council meetings under the Open Meetings Act. These meetings can be relatively

informal, or they can be highly organized and may included the use of a facilitator. Often a

political science professor or a consultant municipal attorney can provide great help to a

community in these sessions. These individuals normally keep the discussion on constructive

matters and force troublesome issues to be raised when the parties may be too polite to do so.

Communities in which the views of the elected officials are similar can use these sessions for

strategic planning and to allow issues to be raised that do not immediately arise out of day-to-day

governmental operations. These sessions are equally or more useful for communities in which

trust has broken down between parties or definite factions exist. Although not all problems can be

solved in these situations, the warring parties sometimes can be led to a relative truce in which

not every issue becomes highly politicized. It is, however, asking too much from such a session if

it takes place under the shadow of a political campaign.

These sessions often allow parties to be extremely frank in their views and permit matters to

be resolved once and for all rather than being raised at every council or board meeting. A welltimed

and well-run retreat can often result in significantly shorter meetings during the extended

period of time when good will resulting from the retreat influences the competing factions.

Sometimes rather than choosing a professional facilitator who may not be familiar with the

specific problems of the community, parties can agree on a citizen or political figure in the area

who has the trust of all parties and can function in this position. Because these meetings are

normally called as special council meetings, an agenda is necessary. The agenda should clearly

state that no action will take place. The meetings can also be called as special Committee of the

Whole meetings.

The Open Meetings Act contains an interesting provision that can help communities to hold

some and possibly all portions of retreats in closed sessions. The Act allows closed meetings to

be held for “[s]elf evaluation, practices and procedures or professional ethics, when meeting with

a representative of a statewide association of which the public body is a member.” 5 ILCS

120/2(c)(16). The Illinois Municipal League is such an organization, and it has assisted some

communities by sending a representative to a retreat that began as an open meeting but then

adjourned to closed session to discuss the topics listed above. As long as a representative of the

Illinois Municipal League is present, councils or boards can evaluate their performance, the

practices and procedures under which they operate, or questions of professional ethics. There may

be other organizations that can provide this service. These items are topics that are generally

central to the disputes that keep some communities from effectively operating.

M. [3.89] Prepare Full Agenda Packets

One of the great advantages of the employment of managers or administrators is that a

hallmark of the use of these professionals is their commitment to submitting a full packet of

materials explaining the agenda items to the council or board well in advance of the meeting. In

communities without an administrator or a manager, the same function can be accomplished by a

mayor or a municipal clerk. The packet of material should include the following:

1. copies of all ordinances that the council or board will be asked to act on at the meeting;

NOTE: Although it may sometimes be difficult for the preparer of the ordinances to get the

material to the council or board in the packet, great efforts in this matter should be taken. Since

matters not on an agenda can be discussed but not acted on, it is important that at least the

subject, or, better yet, the title of the ordinance, appear on the agenda.

2. minutes of the plan commission or zoning board of appeals for matters that the council or

board will be asked to pass on;

3. copies of the minutes of committee meetings that recommend that the board or council

take specific action;

4. copies of letters or correspondence;

NOTE: It is usually unnecessary to read any of these letters at board or council meetings.

Sometimes, the identity of letter writers should not be revealed. For example, it is enough to say

you have received a letter from a parent thanking the police department for finding a missing

child.

5. tabulations of bid openings and any recommendations regarding the lowest responsible

bidder; and

6. copies of any significant contracts, annexation agreements, and site plans.

If persons seeking permission from a governmental body want to have the matter decided within

the shortest possible time, they should cooperate in presenting such documents as are necessary to

review in advance of the meeting.

There is no clear rule as to the period of time during which elected officials need to review

these documents. Certainly, if a meeting is to take place early in the week, the elected officials

should have the great bulk of the materials by Friday of the prior week. Some communities have a

rule that no matter will be placed on the agenda for which the requisite materials are not

submitted to the elected officials at least four or five days in advance of the meeting.

N. [3.90] Encourage Pre-Meeting Tours of Sites

A picture is worth a thousand words, and a visit to the site of a requested variance is worth a

thousand pictures. Elected officials who would like their meetings shortened should be prepared

to visit the actual sites of any locations in the community where the legislative body has the

discretion to grant or deny a landowner or business person’s request. The best way of deciding

whether a front yard setback variance should be granted is a visit to the area in question. In some

instances, officials may be familiar with the area, but a trip to the site will usually give added

insight into the particular matter being presented. In addition to assisting in making a better

decision on these matters, the statement by council or board members that they have visited the

site will often quiet an audience that is seeking valuable board time to point out things that the

elected officials already know from their site observations. Site visits are especially important in

cases in which a dispute has arisen and it is quite clear that advocates of both points of view will

be present at the meeting. When elected officials function in a legislative setting, they are

perfectly free to talk to people whom they meet on a site visit to get a better idea of the views

relating to the issue they will be asked to vote on.

O. [3.91] Amend or Develop Ordinances To Avoid Repetitive Requests

Often, a great deal of time is taken up at board or council meetings by similar requests that

over a period of time present a pattern. In some communities, the council or board spends a great

deal of time acting on requests for variances of the zoning or sign codes. In many of these

instances, the request is somewhat controversial and is objected to by adjoining neighbors. Over a

period of time, however, a council or board may establish a pattern of granting some specific

class of requests. For example, a municipality may universally grant requests for the second-floor

expansion to single-family residences that do not expand the footprint of the first floor. A council

or board may do this even if the existing first floor encroaches into a required side yard. A

community may, for example, also grant, almost universally, requests for sign code variances to

allow oversize signs advertising two sales a year, each of which do not exceed one week in

duration. A community should review the variances that it grants from time-to-time to determine

whether a pattern has emerged that can be better addressed by an amendment to its ordinances

that will, with strict limitations, permit as a matter of right certain matters that formerly were the

subject of variances. In so doing, the community can save a great deal of staff time, board time,

and the time and money of citizens who were required previously to seek variances.

P. [3.92] Develop Form Ordinances

Much time can be spent by a municipality in preparing, reviewing, and discussing the

contents of ordinances and other documents. Although many municipal problems are not

repetitive in nature, some are sufficiently similar to permit the use of form documents. Almost all

ordinances providing for changes in zoning districts, granting variances and special uses, setting

speed limits, placing regulatory signs, selling surplus property, authorizing the execution of

attached agreements and contracts including annexation agreements, and authorizing many other

matters may be accomplished by utilizing, at least in part, sample ordinances or documents

previously agreed on by the corporate authorities.

In cases such as the granting of variances and special uses, there will be differences in the

ordinances in those sections providing for findings of fact, granting the variance or special use,

and imposing conditions. The ability of elected officials to review, discuss, and debate only those

particularized sections of the ordinance will save a great deal of time. The use of sample

ordinances or documents, which in many instances can be entirely adapted by staff, will also save

the municipality money through lower consultant and legal fees. This same approach can be taken

to several kinds of municipal documents, such as purchase and construction contracts, contracts

with independent contractors, and annexation agreements. To the extent that the elected officials

review these documents, they will only need to review the section of “special terms and

conditions” that will change from contract to contract.

Q. [3.93] Conduct Training Sessions for Elected Officials

Newly elected officials sometimes lack essential knowledge about the job that they have

undertaken. This problem can unnecessarily prolong municipal meetings, encourage stagnation,

and dramatically reduce efficiency. The problem has grown in recent years, with a growing

percentage of public officials coming to the board or council without prior service on municipal

boards and commissions. As in national politics, these people are frequently elected as political

outsiders on a platform of mistrust for government and a commensurate pledge to “shake things

up.” Sometimes while trying to shake things up, however, they unnecessarily slow things down

due to their inexperience. Therefore, it is critical that newly elected officials be given help in

overcoming their initial difficulties. The municipality should be prepared to pay the tuition and, if

necessary, overnight costs, for newly elected officials to attend conferences of the Illinois

Municipal League and other regional leagues. The officials should be given a copy of the

ILLINOIS MUNICIPAL HANDBOOK, published by the Illinois Municipal League, as well as

Ancel, Glink’s Newly-Elected Officials Guide (available for download at

www.ancelglink.com/publications/newlyelected.html) and other aids that discuss the way in

which municipal meetings can be most effectively run. The Ancel, Glink Web site also contains

the answers to some of the more frequently-asked questions of newly-elected officials. See

www.ancelglink.com/practiceareas/muni.html. Note that officials appointed to fill vacancies

would also benefit from a downloaded copy of the Newly-Elected Officials Guide.

Officers and Employees

I. [4.1] Scope of Chapter

II. Officers Generally

A. [4.2] Who Is an Officer

B. [4.3] De Facto Officers

III. Elected Officials

A. [4.4] Qualifications for Elected Office

B. [4.5] Certificate of Election, Oath, and Bond

1. [4.6] Certificate of Election

2. [4.7] Oath

3. [4.8] Bond

C. [4.9] Aldermanic Form of Government

1. [4.10] Mayor

2. Aldermen

a. [4.11] In General

b. [4.12] Duty To Vote; Abstentions

c. [4.13] Number of Aldermen Required; Status After Redistricting

3. [4.14] City Clerk

4. [4.15] City Treasurer

D. [4.16] Commission, Manager, and Strong Mayor Forms of Government

IV. [4.17] Appointed Officials

A. [4.18] Qualifications for Office

B. [4.19] Collector May or May Not Be Same as City Clerk

V. Limitations on Duties

A. [4.20] Elected Officials Holding Multiple Offices

B. [4.21] Duties of Appointed Officials

C. [4.22] Legislative Encroachments on Executive Power

D. [4.23] Incompatibility of Offices

VI. [4.24] Compensation

A. [4.25] Salary Adjustments for Those Appointed to Elective Office

B. [4.26] Expense Accounts

VII. Vacancies and Removal

A. [4.27] Conviction

B. [4.28] Removal of Residence

C. [4.29] Physical or Mental Incapacity

D. [4.30] Abandonment of Office

E. [4.31] Resignation

F. [4.32] Removal of Officers

G. [4.33] Employee Termination

H. [4.34] First Amendment Rights and Political Activity of Employees

I. [4.35] Filling Vacancies in Elective Offices

VIII. Pecuniary Interests

A. [4.36] In General

B. [4.37] Conflicts of Interest Permitted by Statute

C. [4.38] Local Improvements

IX. Employees

A. [4.39] Civil Service

B. [4.40] Workers’ Compensation

C. [4.41] Union Recognition

D. [4.42] Personnel File

E. Federally Mandated State and Local Employment Practices

1. [4.43] Fair Employment Practices

2. [4.44] Fair Labor Standards

3. [4.45] Sexual Harassment

4. [4.46] Age Discrimination

5. [4.47] Disabilities

6. [4.48] Family and Medical Leave; Military Leave

X. [4.49] Members of Boards and Commissions

A. [4.50] Civil Service Commissioners

B. [4.51] Fire and Police Commissioners

C. [4.52] Plan Commissioners

D. [4.53] Zoning Board of Appeal Members

E. [4.54] Fair Housing or Human Relations Commissioners

F. [4.55] Electrical Commissioners

G. [4.56] Other Commissions and Commissioners

XI. [4.57] Differences in Other Forms of Government

A. [4.58] Alternative Statutory Forms

B. [4.59] Overlapping Regulations

C. Structure

1. [4.60] Commission Form

2. [4.61] Managerial Form

3. [4.62] Strong Mayor Form

D. Powers, Duties, and Compensation

1. [4.63] Commission Form

2. [4.64] Managerial Form

3. [4.65] Strong Mayor Form

XII. Pensions

A. [4.66] Overview

B. [4.67] Police Officers’ and Firefighters’ Pension Funds

1. [4.68] Fund Creation

2. Board of Trustees

a. [4.69] Membership

b. [4.70] Powers and Duties

3. [4.71] Eligibility for Fund Membership

4. [4.72] Financing of Pension Funds

5. [4.73] Benefits

a. [4.74] Retirement Pensions

b. [4.75] Disability Pensions

c. [4.76] Survivor Benefits

6. [4.77] Investments

C. Illinois Municipal Retirement Fund

1. Creation and Administration

a. [4.78] Establishment

b. [4.79] Board of Trustees

c. [4.80] Authorized Agent

2. [4.81] Eligibility for Membership

3. [4.82] Financing

4. [4.83] Retirement Benefits

5. [4.84] Early Retirement Incentive Program

6. Disability Benefits

a. [4.85] Temporary Benefits

b. [4.86] Permanent Disability

c. [4.87] Social Security Coordination

d. [4.88] Workers’ Compensation

e. [4.89] Survivors’ Benefits

f. [4.90] Death Benefits

7. [4.91] Social Security Coverage Under the IMRF

D. [4.92] Pensions and Qualified Illinois Domestic Relations Orders

E. [4.93] Health Insurance Benefits

F. Retirement Systems Reciprocal Act

1. [4.94] Funds Covered

2. [4.95] Eligibility

G. [4.96] Social Security

I. [4.1] SCOPE OF CHAPTER

The 1993 recodification of a portion of the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1,

et seq., helped to clarify the fragmented and overlapping statutes regarding officers. This chapter

generally describes the duties and qualifications of both elected and appointed officials with a

brief look at employees and commissioners. It also treats the problems of multiple offices,

incompatibility of offices, de facto status, compensation, vacancy, removal, resignation, and

pecuniary interest. All statutory references in this chapter, unless noted otherwise, are to the

Code.

The Code is divided into eleven articles, six of which refer to the organization and officers of

municipalities. There are four statutory forms of government: aldermanic (Article 3.1, formerly

Article 3), commission (Article 4), managerial (Article 5), and strong mayor (Article 6). The

commission, managerial, and strong mayor forms of government differ from the aldermanic form

only as specifically stated by their provisions. For the convenience of the reader, the extent and

manner of these differences covering the commission, managerial, and strong mayor forms are

treated in §§4.57 – 4.65 below.

II. OFFICERS GENERALLY

A. [4.2] Who Is an Officer

From the outset it may be helpful to bear in mind that a municipality is a corporation and, as

such, has officers and employees. Depending on the particular form of government, some of the

officers are elected officials and some are appointed. Employees are never elected or appointed

but rather hired through civil service, police and fire commissions, or the city’s own personnel

system. The following language in People ex rel. Jacobs v. Coffin, 282 Ill. 599, 119 N.E. 54, 57

(1918), may assist in distinguishing “officers” from “employees”:

In many cases it is difficult to determine whether a person is an officer or merely an

agent or employee of a municipality. It is even more difficult to lay down any fixed

rule to determine the question, in all cases, as to whether a person is an officer or

merely [a]n agent or employee of a municipality. Generally, an officer takes an oath

of office, while a mere agent or employee does not. The duties and services of a mere

employee are purely ministerial, and he is not clothed with discretion nor with

power to represent or bind the corporation. . . . An office is a place in a

governmental system created or recognized by the law of the State, which either

directly or by delegated authority assigns to the incumbent thereof the continuous

performance of certain permanent public duties. A position is analogous to an office

in that the duties that pertain to it are permanent and fixed, but it differs from an

office in that its duties may be non-governmental and not assigned to it by any

public law of the State. An employment differs from both an office and a position in

that its duties, which are non-governmental, are neither certain nor permanent.

[Citation omitted.]

Whether one is an officer is a critical question when determining if there is an illegal interest

in a “contract, work, or business of the municipality.” Illinois Municipal Code §3.1-55-10(a). See

§§4.36 and 4.37 below.

Another reason it is important to distinguish officers from employees is the prohibition on

diminishing the salary of an appointed officer during the term of appointment. See §4.24 below.

In Rinchich v. Village of Bridgeview, 235 Ill.App.3d 614, 601 N.E.2d 1202, 1204, 176 Ill.Dec.

504 (1st Dist. 1992), a “Fire Prevention Education and Training Officer” challenged the right of

the village to eliminate his salary midterm. This case, in which the village prevailed, has a good

discussion contrasting the definitions of “officers” and “employees.”

The Illinois Criminal Code of 1961, 720 ILCS 5/2-18, provides further guidance by defining

“public officer”:

“Public officer” means a person who is elected to office pursuant to statute, or who

is appointed to an office which is established, and the qualifications and duties of

which are prescribed, by statute, to discharge a public duty for the State or any of

its political subdivisions.

In People v. Drish, 24 Ill.App.3d 225, 321 N.E.2d 179 (4th Dist. 1974), the court found a

two-part test in the statute to define (1) whether the office in question discharged a public duty

and (2) whether the qualifications and duties of the office and its members were established by

statute. Accordingly, the Drish court used the test to find a member of the planning commission a

“public officer.”

Sometimes an office is created by ordinance. “What is required in order to show that he is an

official is an ordinance which . . . creates an ‘office’ of which he is the occupant.” Romanik v.

Village of Valmeyer, 125 Ill.App.3d 524, 466 N.E.2d 295, 296, 80 Ill.Dec. 843 (5th Dist. 1984),

quoting City of Rockford v. Industrial Commission, 69 Ill.2d 597, 373 N.E.2d 17, 20, 14 Ill.Dec.

886 (1978). In Romanik, the court held the ordinance did not create the office of police chief;

hence, he was an employee who could be discharged and he was not entitled to the procedural

protections afforded to officials under the village ordinance.

A person may be neither an officer nor an employee but rather an independent contractor. In

Pawchak v. Long, 91 Ill.App.2d 218, 234 N.E.2d 85 (3d Dist. 1968), the court held that one who

entered into a contract to do certain work on the city hall was an independent contractor and not a

municipal officer. The focus of the question was whether such a person was a municipal officer

within the statute providing that no municipal officer shall be interested in any contract of the

municipality. Code §3.1-55-10.

B. [4.3] De Facto Officers

McQuillin defines “de facto officer” as “one who has the reputation or appearance of being

the officer he or she assumes to be but who, in fact, under the law, has no right or title to the

office he or she assumes to hold. One is distinguished from a mere usurper or intruder by the fact

that the former holds by some color of right or title while the latter intrudes upon the office and

assumes to exercise its functions without either the legal title or color of right to such office.” 3

Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS §12.102 (3d ed. rev. 2001).

The color of right usually arises by virtue of an election or appointment, by holding over after the

expiration of a term, or by mere acquiescence by the public for such a length of time as to raise

the presumption of a colorable right. Similarly, one who becomes disqualified but thereafter

continues to exercise the duties of office is also a de facto officer. Lavin v. Board of

Commissioners of Cook County, 245 Ill. 496, 92 N.E. 291 (1910). As against third persons,

including the general public, the actions of de facto officers are valid and bind the municipality to

the extent they would have been binding if performed by a de jure officer.

III. ELECTED OFFICIALS

A. [4.4] Qualifications for Elected Office

Other than the special provisions for trustees noted below, all persons seeking election to

municipal office must

1. be qualified electors and reside in the municipality for one year next preceding the

election;

2. not be in arrears in taxes or other indebtedness due to the municipality; and

3. not have been convicted of any “infamous crime, bribery, perjury, or other felony.”

Illinois Municipal Code §3.1-10-5.

It would appear that at some unspecified point before they are elected, aldermen must have

resided in the ward that they seek to represent. Whether they must have resided there prior to

filing their petitions, prior to their elections, or prior to taking office is not clear. However, it is

possible that they may be required to have resided in the ward they seek to represent for a whole

year because P.A. 93-847 (eff. July 30, 2004) provides that if a ward after redistricting contains

part of what used to be in another ward, then a person who meets the one-year residency

requirement for either of those wards can run in the ward. The requirement of one-year residency

in the ward under P.A. 93-847 may be held to be an additional requirement for qualification even

without redistricting.

In Pappas v. Calumet City Municipal Officers’ Electoral Board, 288 Ill.App.3d 787, 681

N.E.2d 589, 224 Ill.Dec. 274 (1st Dist.), appeal denied, 174 Ill.2d 568 (1997), the court rejected

the contention of the convicted felon that he was eligible for office because he had finished his

prison sentence. His argument was that the provision of the Unified Code of Corrections that

states that a person convicted of a felony is ineligible to hold office until completion of his

sentence (730 ILCS 5/5-5-5(b)) overrode the requirements of Code §3.1-10-5(b).

The special provisions regarding trustees in a village of 5,000 or more inhabitants that has

opted to divide itself into districts allow a trustee for the first election to reside in a district for

only six months. Code §3.1-25-75(b). The court has ruled that a village of fewer than 5,000

people may not adopt a form of government that divides the municipality into trustee districts.

See Koerner v. Municipal Officers Electoral Board of Coal City, 205 Ill.App.3d 54, 562 N.E.2d

1107, 150 Ill.Dec. 304 (3d Dist. 1990).

Except for firefighters, an employee of the municipality cannot remain an employee and also

be an alderman. Code §3.1-15-15. See §4.23 below. Section 12 of the Local Government

Employees Political Rights Act, 50 ILCS 135/12, was added by P.A. 94-316 effective July 25,

2005, provides that a member of a fire department or fire protection district may be elected or

appointed to public office and serve in that office. Furthermore, firefighters can solicit votes and

campaign funds, but not while in uniform and not while on duty. Many city attorneys are dubious

about the constitutionality of this new law.

Code §1-1-2(3) defines “electors” as “persons qualified to vote . . . at municipal elections.”

Article 3 of the Illinois Election Code, 10 ILCS 5/3-1, et seq., establishes the qualifications of

voters.

Note that it is not necessary to have been a qualified elector for a full year; it is necessary

only to have resided in the municipality at least one year next preceding the election and be a

qualified elector of the municipality.

The one-year residence requirement has been upheld in Cahnmann v. Eckerty, 40 Ill.App.3d

180, 351 N.E.2d 580 (4th Dist. 1976), appeal dismissed, 97 S.Ct. 2644, reh’g denied, 98 S.Ct.

247 (1977). The federal court also upheld the requirement in an unpublished decision, Sprieser v.

Municipal Electoral Board of City of DeKalb, No. 73 C 457 (N.D.Ill. Apr. 3, 1973).

B. [4.5] Certificate of Election, Oath, and Bond

“The general election law applies to the scheduling, manner of conducting, voting at, and

contesting of municipal elections.” Illinois Municipal Code §3.1-10-10. Code §3.1-10-15

indicates when the elected official takes office. The newly elected officer takes office in May

following the election; however, if changed by ordinance, the day of taking office can be delayed

until the first regular or special meeting in June. All officers elected or appointed under the Code,

except the municipal clerk, aldermen, mayor, trustees, and president, shall be commissioned by

warrant, under the corporate seal, signed by the municipal clerk and the mayor, acting mayor, or

mayor pro tem or presiding officer of the corporate authorities. Code §3.1-55-5. Monge v. City of

Pekin, 245 Ill.App.3d 622, 614 N.E.2d 482, 185 Ill.Dec. 348 (3d Dist. 1993), involved the legal

effect of actions of the “old council” in its last meeting after election but one-half hour before the

newly elected council and mayor took their seats. The court leaned heavily on the statutory

language that officials serve until their successors are qualified, and, in this case, the successors

had not yet taken their oaths and given their bonds.

1. [4.6] Certificate of Election

The following is a sample certificate of election:

STATE OF ILLINOIS )

)

COUNTY OF __________ ) ss.

)

CITY OF ______________ )

CERTIFICATE OF ELECTION

TO: __________, City Clerk

I, __________, Mayor of the City of __________, County of __________, State of Illinois,

do hereby certify that at a general election held on __________, 20__, __________ was duly

elected to the office of Alderman in the City of __________, County of __________, State of

Illinois.

IN WITNESS WHEREOF, I have hereunto set my hand and seal on __________, 20__.

_____________________________________

Mayor

[Corporate Seal]

The statute does not state where the certificate of election is filed, but it would be best to file

it with the city clerk.

2. [4.7] Oath

Before beginning the duties of their respective offices, all municipal officers, whether elected

or appointed, shall take and subscribe to the oath required by the Illinois Constitution. The

subscribed oath or affirmation must be filed in the office of the municipal clerk. Illinois

Municipal Code §3.1-10-25.

The following is a sample official oath:

[Caption]

OFFICIAL OATH

I, __________, having been elected to the office of Alderman in the City of __________,

County of __________, State of Illinois, DO SOLEMNLY SWEAR that I will support the

Constitution of the United States, and the Constitution of the State of Illinois, and that I will

faithfully discharge the duties of the office of Alderman to the best of my ability.

Signed and sworn before me __________, 20__.

_____________________________________

[Notary] or [Municipal Clerk]

The Oaths and Affirmations Act, 5 ILCS 255/0.01, et seq., allows an oath-taker to affirm

rather than swear.

3. [4.8] Bond

Before engaging in the duties of their respective offices, all municipal officers, except

aldermen and trustees, must execute a bond with security to be approved by the corporate

authorities. Illinois Municipal Code §3.1-10-30. In the manager form of government, the mayor

or president is relieved of the requirement of filing a bond. Code §5-3-8. In the commission form

of government, a wide range of officers, including commissioners, must file bonds. Code §4-4-2.

The bond shall be payable to the municipality in whatever penal sum may be directed by

resolution or ordinance and conditioned on the faithful performance of the duties of the office and

the payment of all money received by such officer according to law. The mayor’s bond may not

be less than $3,000, and the treasurer’s bond is specially fixed in accordance with a calculation

provided in the statute. Code §3.1-10-30. All bonds are filed with the municipal clerk except the

bond of the clerk, which is filed with the treasurer. The cost of the official bond shall be paid by

the municipality, and effective January 1, 2004, the Official Bond Payment Act, 5 ILCS 270/1,

provides that the bond may be obtained from a risk management pool of municipalities. It is most

important that the ordinances of the municipality be reviewed to determine whether a particular

bond amount is stated as applying to all offices. The consequences of the bond not actually being

posted were considered in Clark v. Board of Fire & Police Commissioners of Village of Bradley,

245 Ill.App.3d 385, 613 N.E.2d 826, 184 Ill.Dec. 509 (3d Dist. 1993). In Clark, a policeman

facing a discharge hearing challenged the board’s jurisdiction since two of the commissioners had

not posted the bond required by the statute. The court held that the commissioners were de facto

officers and that their acts were valid.

Following is a sample bond:

OFFICIAL BOND

KNOW ALL MEN BY THESE PRESENTS, that we, __________ and __________, of

the City of __________, County of __________, State of Illinois, are held and firmly bonded

unto the City of __________, a municipal corporation, in the sum of $10,000, good and

lawful money of the United States of America, to be paid to the City of __________, for

which payment, well and truly to be made, we do bond ourselves, jointly and severally, by

these presents.

Sealed with our seal, and dated __________, 20__.

The condition of this obligation is such that if the above-bonded __________ shall

faithfully perform the duties of the office of __________ and pay over to the proper official

all money received according to law and the ordinances of the City of __________, Illinois,

then this obligation is to void, otherwise to remain in full force and virtue.

________________________________[Seal]

STATE OF ILLINOIS )

) ss.

COUNTY OF ____________ )

I, __________, notary public in and for __________ County in the State of Illinois, do

hereby certify that __________ and __________, personally known to me to be the same

persons whose names are subscribed to the foregoing bond, appeared before me this day in

person and acknowledged that they signed, sealed, and delivered the said bond as their free

and voluntary act, and for the use and purposes therein set forth.

Given under my hand and my seal, __________, 20__.

_____________________________________

APPROVED by the corporate authorities at a regular city council meeting this ____ day

of __________, 20__, and filed in my office at City Hall, __________, Illinois, on

__________, 20__.

_____________________________________

City Clerk (Official Capacity)

All officers, whether elected or appointed, except the municipal clerk, aldermen, and mayor,

shall be commissioned by warrant under the corporate seal signed by the municipal clerk and the

mayor. Code §3.1-55-5. The following is an example of a warrant commission:

WARRANT OF COMMISSION

FOR THE OFFICE OF CITY ATTORNEY

STATE OF ILLINOIS )

COUNTY OF ____________ ) ss.

CITY OF ________________ )

TO ALL TO WHOM THESE PRESENTS SHALL COME:

I, __________, Mayor of the City of __________, Illinois, a municipal corporation,

hereby certify that __________, having been duly appointed by me with the advice and

consent of the City Council on the ____ day of __________, 20__, is hereby commissioned by

this warrant to assume the duties of City Attorney, on behalf of the City of __________,

Illinois, effective this date for a term of one year and until his successor shall have been duly

appointed and qualified, and is hereby fully authorized and empowered to assume and

perform all the duties of said office according to law and the ordinances of this city.

Given under my hand and the Corporate Seal of __________, Illinois, this ____ day of

__________, 20__.

_____________________________________

Mayor, City of __________, Illinois

[Seal]

_______________________________________

Municipal Clerk, City of __________, Illinois

Note that this warrant should be issued only after the officer has subscribed to the required

oath and furnished the required bond that has been approved by the corporate authorities.

It is suggested that the original be filed with the city clerk and a copy be furnished to the

officer involved, although the statutes do not so state.

C. [4.9] Aldermanic Form of Government

In villages and incorporated towns operating under the aldermanic form of government,

presidents and trustees have the same powers as mayors and councils. Illinois Municipal Code

§3.1-45-5. See also Code §§1-1-2, 1-1-2.1; Ketchmark v. Lynch, 107 Ill.App.2d 36, 246 N.E.2d

133 (3d Dist. 1969). Thus, in this chapter, unless there is some specific provision to the contrary,

no special mention is made of the president of the village or the board of trustees.

1. [4.10] Mayor

The chief executive holds office for a four-year term (Illinois Municipal Code §3.1-15-10)

unless a two-year term has been adopted by the municipality under the provisions of Code §3.1-

10-65. The mayor presides at the council meetings (Code §3.1-40-30) but may not abuse the

authority as parliamentarian (Rudd v. Sarallo, 111 Ill.App.2d 153, 249 N.E.2d 323 (2d Dist.

1969); Roti v. Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983)).

The mayor is responsible for seeing that all laws and ordinances are faithfully executed. Code

§3.1-35-5. The mayor also has the power to administer oaths. Code §3.1-15-20. Other powers and

duties include the removal of officers, inspection of books, release of prisoners, calling out the

militia in an emergency, etc. Code §§3.1-35-10 through 3.1-35-25.

2. Aldermen

a. [4.11] In General

Before discussing the office of alderman, it may be helpful to clarify three terms that are

sometimes used interchangeably: “corporate authorities,” “city council,” and “aldermen.” The

term “corporate authorities” means the mayor and aldermen. Illinois Municipal Code §1-1-2(2).

Code §3.1-40-5 states that the city council is comprised of the mayor and aldermen. (The village

board of trustees is comprised of the president and trustees. Code §3.1-45-5.) This can be an

important distinction because, for example, the “quorum” (Code §3.1-40-20) is defined as being a

majority of the “corporate authorities.” One must keep this distinction in mind when interpreting

Code §3.1-40-30, which describes when the mayor shall vote. A mayor can vote on an ordinance,

resolution, or motion only under three circumstances: (1) to break a tie; (2) when one half of the

aldermen have voted in favor of an ordinance, resolution, or motion, even absent a tie vote, i.e., to

provide or deny the majority vote (this overrides McLean v. City of East St. Louis, 222 Ill. 510, 78

N.E. 815 (1906)); and (3) when the Code requires a vote of greater than a majority of the

“corporate authorities” to adopt an ordinance, resolution, or motion. Absent these instances, the

mayor cannot vote. Ketchmark v. Lynch, 107 Ill.App.2d 36, 246 N.E.2d 133 (3d Dist. 1969).

There are only a few references in the Code in which a vote of greater than a majority of the

corporate authorities is required: Code §§11-76-1 (sale of realty), 1-2-4 (date of taking effect of

an ordinance), 8-2-9.6 (modifying a municipal budget), and 11-76-2 (acceptance of bids for the

sale of realty). Most other requirements for an extraordinary majority vote refer to a majority of

the aldermen or trustees: Code §§11-91-1 (vacation of an alley), 11-13-14 (vote after a protest

petition in zoning matters), 3.1-40-15 (expulsion of aldermen), and 8-9-1 (approval of contract

over $20,000 without bids, etc.). Thus, while Code §3.1-40-30 does require the mayor to vote in a

few limited instances, it does not greatly increase the power of that office.

Although it appears harmless to change the statutory term “alderman” to “alderperson,” some

caution is suggested, especially for non-home rule municipalities, because Code §3.1-40-30 refers

to the votes of “aldermen,” and many other important sections include comparable language.

Aldermen have all the usual powers of local legislators although that fact is not specifically

enumerated in the statutes. One interesting power aldermen and mayors have by virtue of their

office is that they are, after successful completion of a training course, “conservators of the

peace.” Code §3.1-15-25. As to the constitutional validity of the residency requirement, see §4.4

above.

b. [4.12] Duty To Vote; Abstentions

Aldermen are under a duty to vote when a quorum is present. Under Illinois Municipal Code

§3.1-40-40, only “yea” (“aye”) or “nay” counts as a vote. A failure to vote when present or a vote

of “abstain,” “pass,” or “present,” for example, nevertheless has a legal effect. When the statutes

require an “affirmative vote” of the majority, a failure to vote has the effect of a “nay” vote.

When the statutes require the “concurrence” of a majority, a failure to vote results in

acquiescence or concurrence with the majority who did vote. Prosser v. Village of Fox Lake, 91

Ill.2d 389, 438 N.E.2d 134, 63 Ill.Dec. 396 (1982); Lake County Forest Preserve District v.

Northern Trust Bank/Lake Forest, N.A., 207 Ill.App.3d 290, 565 N.E.2d 715, 152 Ill.Dec. 182 (2d

Dist. 1990). What happens when a statute is unclear about the impact of an abstention or a present

vote? How should a “simple majority” requirement be interpreted? In County of Kankakee v.

Anthony, 304 Ill.App.3d 1040, 710 N.E.2d 1242, 1246, 238 Ill.Dec. 140 (3d Dist. 1999), the

appellate court held that a “present” vote did not count toward a simple majority needed for

passage of a zoning text amendment when the applicable statute (55 ILCS 5/5-12014(b)) read in

part that such an amendment must be “. . . passed . . . by a simple majority of the elected county

board members.” In effect, the court construed a “present” vote as a “nay” vote when a “simple

majority” of all elected members was required. Accordingly, the effect of an “abstention,”

“present,” or failure to vote strongly depends on the subtleties of statutory construction.

Code §3.1-40-30 permits an alderman acting as mayor or mayor pro tem to vote as an

alderman but not to vote also as mayor. In Prosser, supra, the trustee acting as village president

failed to vote, with the result that his failure to vote constituted a “yea” vote in concurrence with

the majority of voting trustees. Accordingly, Code §3.1-40-30 and Prosser appear to absolutely

prohibit an alderman acting as mayor or mayor pro tem to vote as mayor even when failing to

vote as an alderman. It is not clear whether an alderman acting as mayor or mayor pro tem can

specifically reserve the right to vote as a mayor and thereby forego the vote as alderman without

having a legal effect under Prosser. This avenue is clouded by the result in Prosser and by the

court’s reference to an alderman’s responsibility to vote when a quorum is present. The better

result would permit the alderman acting as mayor or mayor pro tem to reserve his or her right and

so vote as mayor without the failure to vote as an alderman having any legal effect under Prosser.

A contrary result would effectively emasculate Code §3.1-40-30 and the municipal legislative

process whenever the mayor’s or mayor pro tem’s vote was required by the Municipal Code or

otherwise permitted under Code §3.1-40-30. In short, a contrary result would leave a municipality

without a voting mayor or mayor pro tem whenever an alderman was acting in that capacity. See

§4.35 below.

c. [4.13] Number of Aldermen Required; Status After Redistricting

In cities, the number of aldermen required on the basis of population is set forth in Illinois

Municipal Code §3.1-20-10, and the number can be reduced pursuant to Code §3.1-20-20. In

villages and incorporated towns, the number of trustees is fixed by Code §3.1-25-5. Code §3.1-

20-25 sets forth the statutory scheme for redistricting a city due to an increase in population

shown in a state, school, or city census. The city must be divided into wards with equal

populations. Code §3.1-20-25(a). To use other than population figures is probably dangerous

under the one-person, one-vote rule of Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663, 82 S.Ct. 691

(1962), as it has developed. Baker has highlighted that municipalities are obligated to redistrict

more often than is strictly required by an overall increase in population — the mere shifting of

population will require redistricting. Thus, there is a continuing obligation to redistrict even when

there is no increase in total population sufficient to require the invoking of Code §3.1-20-25.

There is no statutory guidance for the mechanics of redistricting other than Code §3.1-20-25.

In those municipalities that have staggered terms for the aldermen or trustees, any redistricting

can easily result in a sitting alderman residing in a place outside the ward in which he or she was

originally elected. When the dislocation happens because of a redistricting due to an increased

population, then the provisions of Code §3.1-20-25 control the results (e.g., the alderman may

end up an “at-large alderman”). When it happens because of a mere redistricting to equalize the

population of wards, then a different result may occur; indeed, the statutory scheme, as provided

in Code §3.1-20-25, is probably constitutionally dubious as a violation of the one-person, onevote

principle. There are no reported cases on this precise point, but there is an Attorney General

opinion and a trial court decision. Op. Att’y Gen. (Ill.) No. 97-019 advised that holdover

aldermen were to continue in office as either serving the new ward or, if they did not reside in the

new ward, then “at large.” In the decision handed down by the Hon. Frederick S. Green,

Champaign County Circuit Judge, in Gilmore v. Urbana, No. 70-C-798 (1970), the court held

that after redistricting, the holdover alderman continued to serve his “old ward.” The mere

enactment of a redistricting ordinance does not erase the old ward lines as respects the alderman

who was elected from that old ward (and no one continued to serve “at large”). Like the smile of

the Cheshire cat, the old ward lines disappear gradually, not all at once. Note that redistricting

must be completed not less than 30 days preceding the next general election. Code §3.1-20-25(b).

Statutory authorization for districting and redistricting villages with a population of more than

5,000 is provided in Code §3.1-25-75.

3. [4.14] City Clerk

The Illinois Municipal Code provides that a city clerk shall be elected (Code §3.1-15-5) at the

same time the mayor is elected (Code §3.1-20-5). In villages under 5,000 in population, clerks

can be appointed or elected. Code §3.1-25-90. The duties of the clerk are set forth in Code §3.1-

35-90.

P.A. 94-250 (eff. July 19, 2005) amended Code §3.1-30-10 to permit municipalities with

fewer than 500,000 residents to have as many deputy clerks as are deemed to be needed.

4. [4.15] City Treasurer

Like the clerk, the office of city treasurer is required by statute (Illinois Municipal Code §3.1-

15-5), and the treasurer is elected at the same time the mayor is elected (Code §3.1-20-5);

however, in municipalities with fewer than 10,000 people, the treasurer is appointed (Code §3.1-

15-5). The duties of the treasurer are spelled out in Code §3.1-35-40, et seq. The treasurer must

make deposits only in depositories duly designated by the corporate authorities. The Public Funds

Investment Act, 30 ILCS 235/0.01, et seq., contains the rules relating to the investment of public

funds.

D. [4.16] Commission, Manager, and Strong Mayor Forms of Government

Other than special charter municipalities and those municipalities that have altered their form

of government pursuant to Article VII, §6(f) or §7(2), of the Illinois Constitution, there are four

statutory forms of government. The commission, manager, and strong mayor forms are accretions

on the aldermanic form, differing from the aldermanic form only as they specifically provide to

the contrary. See §§4.57 – 4.65 below.

IV. [4.17] APPOINTED OFFICIALS

Illinois Municipal Code §3.1-30-5(a) provides that the mayor or president in all

municipalities may, with the advice and consent of the board or council, appoint certain named

officers and “other officers necessary to carry into effect the powers conferred upon

municipalities.” Code §3.1-30-5(b) provides that the corporate authorities may discontinue any

appointive office to take effect at the end of the current fiscal year. Code §3.1-20-40 states that

instead of providing for the appointment, a city can by ordinance provide for the election of

certain named officers “and any other officers which the city council considers necessary or

expedient.” Many of the statutory duties are spelled out in the statute for each such statutory

office. See also §4.19 below.

The Attorney General issued an opinion that a city council can impose reasonable term

limitations on temporary appointments. Op. Att’y Gen. (Ill.) No. 94-012. It should also be noted

that with regard to the office of appointed collector, it is unclear whether the council can

discontinue that office if the ordinance provides that the elected clerk shall also serve as collector.

Dumke v. Anderson, 44 Ill.App.3d 626, 358 N.E.2d 344, 3 Ill.Dec. 177 (1st Dist. 1976). However,

Dumke was not followed in a factually similar case in the federal court. See Wolf v. Larson, 897

F.2d 1409 (7th Cir. 1990). See also §§4.24 and 4.25 below with respect to salary increases and

reductions.

In the event that the city council refuses to approve an appointment to city office by the

mayor, the mayor may appoint a temporary replacement. Code §3.1-30-5(d). It is not clear,

however, whether the temporary appointment must be approved by the city council. In Michels v.

McCarty, 196 Ill.App. 493, 495 – 499 (2d Dist. 1915), the court did say that although the power

to appoint a successor in office was subject to council approval, the mayor did have the power to

appoint an officer to act for the time being.

The peculiarities of appointed officials in the commission, manager, and strong mayor forms

of government are covered in §§4.57 – 4.65 below.

A. [4.18] Qualifications for Office

Illinois Municipal Code §3.1-10-6 sets forth the basic qualification for appointive office,

which is that the person is a qualified elector. The residency requirements, however, do not apply

to municipal engineers, city attorneys, health officers, or other officers who require technical

training or knowledge.

Code §3.1-10-6(c) contains special rules for residency of police officers and firefighters

outside the municipality. These rules have to be reconciled with the provisions of Code §10-2.1-

6, which provides that the council or board of trustees may limit appointment to the police and

fire departments to electors of the community, county, state, or nation and may establish

reasonable residency requirements. Although the appellate court in Bastian v. Personnel Board of

City of Chicago, 108 Ill.App.3d 672, 439 N.E.2d 142, 64 Ill.Dec. 213 (1st Dist. 1982), vacated,

98 Ill.2d 277 (1983), held that the ordinance in question was unconstitutional as lacking definite

standards for equitable enforcement, the opinion demonstrates some of the problems inherent

with formulating and enforcing such a rule.

B. [4.19] Collector May or May Not Be Same as City Clerk

Two separate statutes speak to combining the offices of clerk and collector. Illinois Municipal

Code §3.1-30-15 provides that in any municipality in which the clerk is appointed, the

municipality may provide by ordinance that the clerk shall also be the collector. Code §3.1-35-

135 provides that in any municipality with a population of less than one million in which the

corporate authorities have provided for the appointment of a collector, they may also provide that

the clerk shall hold the office of collector.

Coupling the offices of clerk and collector has produced litigation that leaves the law in a

somewhat foggy state due to partisan efforts to uncouple these offices after the “wrong” person

has been elected clerk. First, in Dumke v. Anderson, 44 Ill.App.3d 626, 358 N.E.2d 344, 3 Ill.Dec.

177 (1st Dist. 1976), the court held that when the village adopted an ordinance as provided for in

what is now Code §3.1-30-15, the collector’s term became coextensive with the clerk’s elected

term, so the salary of the collector could not be diminished. Next, in Tupy v. Oremus, 105

Ill.App.3d 932, 435 N.E.2d 197, 61 Ill.Dec. 708 (1st Dist. 1982), the court held that the ordinance

involved was different from that in Dumke so the position of collector could be taken from the

clerk even after the election of the clerk. Last, in Wolf v. Larson, 897 F.2d 1409 (7th Cir. 1990),

the federal court, reviewing both Dumke and Tupy, observed that Tupy severely limited the

holding in Dumke. The federal court held that the village retained the right to reduce the clerk’s

salary as collector after the election, despite the fact that at the time of the election, the ordinance

provided that the clerk would also hold the office of collector and receive an additional salary, a

situation seemingly very comparable to the facts in Dumke.

V. LIMITATIONS ON DUTIES

A. [4.20] Elected Officials Holding Multiple Offices

Illinois Municipal Code §3.1-15-15 provides that the mayor, aldermen, city clerk, and city

treasurer may not hold any other office under the city government during their terms of office

except as volunteer firefighters and as expressly provided in Code §§3.1-10-50 (acting mayor)

and 3.1-35-135 (city clerk may be city collector). According to the Illinois Local Library Act, 75

ILCS 5/4-1, if the city establishes a public library, then one member of the city council may be

appointed to the library board of trustees. Code §3.1-35-35 provides that an alderman may act as

acting mayor or mayor pro tem. Code §3.1-35-135 provides that in a city having a population of

less than one million in which the city council has provided for the appointment of a city

collector, the city council may by ordinance provide that the city clerk shall hold the office of city

collector. Despite the above limitation, Code §9-2-7 expressly provides that in cities having a

population of less than 50,000, the board of local improvements shall include the mayor of the

city or president of the village. Further, the Liquor Control Act of 1934, 235 ILCS 5/4-2, provides

that the mayor or president of the board of trustees shall be the local liquor commissioner.

Although no case has been found that deals specifically with this apparent conflict in statutes,

there has been judicial recognition that if otherwise authorized by statute, an officer may hold one

office by virtue of his or her appointment or election to another. Lee v. City of Venice, 206

Ill.App. 376 (4th Dist. 1917) (mayor holding position of president of board of local

improvements); Dalton v. City of Moline, 48 Ill.App.3d 494, 359 N.E.2d 500, 3 Ill.Dec. 861 (3d

Dist. 1977) (mayor holding position of local liquor control commissioner).

The provisions of the Public Officer Prohibited Activities Act, 50 ILCS 105/0.01, et seq.,

overlap Code §3.1-15-15. Section 2 of that Act states:

No alderman of any city, or member of the board of trustees of any village,

during the term of office for which he or she is elected, may accept, be appointed to,

or hold any office by the appointment of the mayor or president of the board of

trustees, unless the alderman or board member is granted a leave of absence from

such office, or unless he or she first resigns from the office of alderman or member

of the board of trustees, or unless the holding of another office is authorized by law.

The alderman or board member may, however, serve as a volunteer fireman and

receive compensation for that service. Any appointment in violation of this Section

is void.

In 1995, this section was amended to permit a municipal officer to hold a county office or

office in another unit of local government as long as there is no contractual relationship between

the municipality and the other unit of local government.

With the current practice of creating various intergovernmental commissions, in view of the

provision of 50 ILCS 105/2 quoted above, can an alderman be appointed to such a commission?

The Report of the Local Government Committee for the 1970 Constitutional Convention shows a

clear intent to allow local government officers to serve on such intergovernmental commissions:

Paragraph 11.2 is intended to allow officers and employees of any participating

unit to take part in the administration of intergovernmental activities. Thus a mayor

or councilman of a participating unit could sit on a committee or commission

administering such an activity without having to step down from the former office.

VII RECORD OF PROCEEDINGS, SIXTH ILLINOIS CONSTITUTIONAL

CONVENTION, p. 1748 (1972).

Paragraph 11.2 became Article VII, §10(b), of the Illinois Constitution.

B. [4.21] Duties of Appointed Officials

Illinois Municipal Code §3.1-10-40 provides that every officer shall perform duties in

addition to those prescribed by law and be subject to other rules and regulations as the corporate

authorities may provide by ordinance. Thus, except for the matter of available time, it would

appear that there is no reason the corporate authorities could not freely provide that appointed

officers shall perform any additional duties as prescribed by ordinance with the obvious limitation

that only licensed professionals could do work that requires such licensure. One other limitation

on the assignment of duties may relate to the authority given certain offices by statute. It is

unlikely in a non-home rule community that the legislative body could expand or limit the powers

of such officers to the extent that their powers would then be incompatible with the powers

granted by statute. Therefore, transfer of the mayor’s power of appointment to the city council is

permissible only upon a change in the form of the city government. Op. Att’y Gen. (Ill.) No. 97-

028. Only a home rule unit has the power to alter or repeal a form of government provided by law

and only upon approval by a referendum. ILL.CONST. art. VII, §6(f).

C. [4.22] Legislative Encroachments on Executive Power

Article II of the Illinois Constitution contains a separation of powers statement (The Powers

of the State); however, it is arguably limited in its application to local government.

Although the case law in Illinois is scant on the application of the constitutional principle of

separation of powers between the chief executive officer and the city council, something akin to

the separation of powers concept can be seen in the cases involving the restriction on altering the

form of government without approval by referendum. These cases normally arise from a power

struggle between elected officials. Although there is an overlap between the concept of separation

of powers and the point at which the results of the power struggle amount to a change in form of

government, each of the concepts rests on a different foundation. The two concepts are

interwoven in those cases in which the commissioners, acting together in their legislative

capacity, enact an ordinance that encroaches on the executive powers of one or more of their

fellow commissioners. In these situations, the court has emphasized the restriction on altering the

form of government rather than the separation of powers. Two such cases involving the

commission form of government are Marshall v. City of Chicago Heights, 59 Ill.App.3d 986, 376

N.E.2d 657, 17 Ill.Dec. 511 (1st Dist. 1978), and Fischer v. Brombolich, 207 Ill.App.3d 1053,

566 N.E.2d 785, 152 Ill.Dec. 908 (5th Dist. 1991). In Marshall, an ordinance that deprived the

elected commissioner of the power to hire and fire, investing such power in the heads of

departments, was held to be such a substantial alteration of the form of government that it could

be done only by referendum. Similarly, in Fischer an ordinance transferring subdepartments

under one commissioner to another midterm was held to be invalid as not authorized by statute.

The cases involving a form of government other than the commission form better illustrate

the classic executive-legislative branch tensions. In these cases, the separation of powers principle

is relied on to demonstrate that the change of form of government is the real point of contention.

Pechous v. Slawko, 64 Ill.2d 576, 357 N.E.2d 1144, 2 Ill.Dec. 701 (1976), contains a good

discussion of the topic. In Pechous, the court consolidated two cases involving legislative

encroachments on the executive office in the Village of Berwyn and the City of Oak Lawn. The

mayor of Berwyn challenged an ordinance removing three city officers. The aldermen claimed

authority to appoint and remove municipal officers under the city’s home rule status. The

aldermen argued that Article VII, §6(f), of the Illinois Constitution meant that a referendum

approval was required only when the proposed change affected the “basic nature of government.”

357 N.E.2d at 1148. The court rejected this argument, citing language from the Report of the

Local Government Committee for the 1970 Constitutional Convention, which explained the

purpose of the provision that became §6(f):

But more than the manner of electing the county board is included within the

meaning of “form of government.” It also includes the relative powers and functions

of the county board and the chief executive officer of the county. . . .

With respect to municipalities, the portion of paragraph 4.3 relating to “forms

of government” contemplates that various plans . . . for the relationship of legislative

and executive branches of government within municipalities will be provided by the

General Assembly for selection by various municipalities through a referendum. Id.

In Pechous, the essential question concerning Oak Lawn was an attempt by the trustees to

secure the power to appoint the village attorney without referendum. The court disapproved of the

maneuver and held that it was an effort to transfer the manager’s power of appointment to the

trustees. Another aspect of the Oak Lawn controversy concerned the ordinance that removed the

village president from the position of liquor commissioner and replaced him with a commission

of three board members. The court viewed this as yet another impermissible effort by the trustees

“to inject themselves into matters of administration.” 357 N.E.2d at 1152.

In Dunne v. County of Cook, 108 Ill.2d 161, 483 N.E.2d 13, 90 Ill.Dec. 866 (1985), the

Supreme Court invalidated an enactment of the county board that attempted to reduce the

percentage of votes required to override a veto. Citing Pechous, the court held that such an

encroachment by the legislative branch into the power of the executive constituted a change in the

form of government that, in the absence of referendum approval, violated the Illinois

Constitution. In the second round of Dunne v. County of Cook, 164 Ill.App.3d 929, 518 N.E.2d

380, 115 Ill.Dec. 855 (1st Dist. 1987), the lower court found that the power to hire and fire the

employees in question was vested in the board president under statutes and thus when the Cook

County Board enacted ordinances to transfer to themselves the power to hire and fire employees

who constituted their own personal staffs, the ordinances were an attempt to alter the form of

government without referendum approval. The appellate court, citing Pechous and the earlier

Dunne decision, reiterated the view that the defendant board members were attempting to

improperly take power that was statutorily vested in the executive officer and transfer it to the

legislative body of government without complying with the requirement of referendum. See also

Op. Att’y Gen. (Ill.) No. 97-028.

D. [4.23] Incompatibility of Offices

It is well established law that individuals may not concurrently hold incompatible offices for

fear that divided loyalties would be detrimental to the performance of one or both of the offices.

As a procedural matter, the first office becomes vacant ipso facto upon the acceptance of the

second incompatible office. Op. Att’y Gen. (Ill.) S-1514 (1928).

There are numerous Attorney General’s opinions indicating that holding the office of

alderman is incompatible with holding the following non-city positions: county treasurer, justice

of the peace, and member of the county board of supervisors. Further, there are several Attorney

General’s opinions indicating that the position of city clerk is incompatible with the positions of

circuit clerk and justice of the peace. However, the Attorney General has ruled that the position of

city clerk is compatible with the positions of school treasurer, town clerk, and town collector. The

Attorney General has also ruled that the office of mayor is incompatible with the offices of

county judge, justice of the peace, and member of the county board of supervisors. However, the

office of mayor is compatible with those of county coroner and county treasurer. These various

opinions may be easily found in the index to the Attorney General’s opinions under

“compatibility.” Note, however, that the Attorney General’s opinions are not conclusive on the

question of compatibility as courts have weighed in on this matter as well.

Generally, when the occupancy of both offices by a single person would be detrimental to the

public interest or when the duties of the two offices interfere with one another, the court has held

those offices to be incompatible. See People ex rel. Black v. Dukes, 108 Ill.App.3d 965, 439

N.E.2d 1305, 64 Ill.Dec. 497 (3d Dist. 1982), vacated, 96 Ill.2d 273 (1983), which has a good

discussion on the issue of incompatibility that resulted when a village trustee was elected to the

school board. The Supreme Court, however, dismissed it as moot and expressly vacated the

appellate court judgment to prevent it from standing as precedent.

Although the Public Officer’s Simultaneous Tenure Act, 50 ILCS 110/0.01 et. seq., addresses

only the dual offices of county board and township supervisor or township assessor, it could be

helpful in deciding some of these incompatibility of office issues.

The court has ruled that the doctrine of incompatibility does not require the removal of an

individual who was first elected mayor and then appointed as a director of the Illinois Toll

Highway Authority. People v. Claar, 293 Ill.App.3d 211, 687 N.E.2d 557, 227 Ill.Dec. 307 (3d

Dist. 1997).The suit was filed by the Will County State’s Attorney’s Office after the mayor

participated in a land transaction deal with the Authority that affected property in his town.

Although the court recognized the potential conflict of interest, it held that because the duties of

the two positions were generally different, there was not a conflict of duty, and therefore no

incompatibility of office.

A later case, People v. Brown, 356 Ill.App.3d 1096, 828 N.E.2d 306, 293 Ill.Dec. 336 (3d

Dist. 2005), which held that the offices of alderman and county park district board member were

incompatible, minimized Claar by rejecting the argument that by recusing himself on conflict

issues, the officer would avoid the incompatibility issue. In Brown, the court said that the offices

involved in Claar were too dissimilar to those involved in Brown, and a determination of whether

the potential for conflict would be rare or numerous was important in determining whether the

offices in question were incompatible.

In addition, the court has disapproved of the concurrent occupancy of offices in which one is

subordinate to the other. In People ex rel. Fitzsimmons v. Swailes, 101 Ill.2d 458, 463 N.E.2d

431, 79 Ill.Dec. 90 (1984), the court found that the position of county board member was

incompatible with township assessor because one was subordinate to the other. Similarly, in

Rogers v. Village of Tinley Park, 116 Ill.App.3d 437, 451 N.E.2d 1324, 72 Ill.Dec. 1 (1st Dist.

1983), the court held that village trustee and police officer were incompatible offices for the same

reason. See also People ex rel. Teros v. Verbeck, 155 Ill.App.3d 81, 506 N.E.2d 464, 106 Ill.Dec.

757 (3d Dist. 1987) (incompatibility between office of deputy coroner and member of county

board existed because member of county board was in position of authority to act on budget and

salary of county coroner who in turn determined salary of deputy coroner).

VI. [4.24] COMPENSATION

The rules for establishing compensation for all municipal officers, appointed and elected, are

set forth in Illinois Municipal Code §3.1-50-5, et seq. Basically, the rules provide that all salaries

are fixed by ordinance. An ordinance fixing compensation for members of the corporate

authorities shall specify whether those members are to be compensated at an annual rate or for

each meeting actually attended. The salaries of all municipal officers and employees may be fixed

in the annual appropriation or budget ordinance, and the corporate authorities may fix the salary

of elected officers in an ordinance other than the appropriation or budget ordinance. The salaries

for elected officers, of course, cannot be increased or diminished so as to take effect during the

term of any officer holding elective office. Even with the subsequent addition of duties, Article

VII, §9(b), of the Illinois Constitution has been interpreted to preclude midterm increases in

salaries to county officials. Op. Att’y Gen. (Ill.) No. 99-009. The Illinois Supreme Court has

prohibited members of the General Assembly from receiving additional compensation for

concurrently serving in other institutional positions. Rock v. Burris, 139 Ill.2d 494, 564 N.E.2d

1240, 151 Ill.Dec. 578 (1990). Salaries for elective office must be fixed at least 180 days before a

general election at which voting is held for those offices. Under these provisions, when the terms

of aldermen are staggered, a newly elected alderman may be paid at a higher rate than a sitting

alderman.

Article VII, §9(b), of the Illinois Constitution provides:

An increase or decrease in the salary of an elected officer of any unit of local

government shall not take effect during the term for which that officer is elected.

Additionally, Code §3.1-50-5 states that the compensation of any appointed municipal officer

“may be increased but not diminished so as to take effect during the term for which the officer

[is] appointed,” provided, however, salaries that are fixed in an annual appropriation ordinance

shall not be increased or diminished during the fiscal year for which the appropriation is made.

The mayor of a city not under the commission form of government receives his or her salary

as set by the city council by ordinance. Code §3.1-50-5. May the mayor’s salary as liquor

commissioner be raised or lowered during the term of office? In Dalton v. City of Moline, 48

Ill.App.3d 494, 359 N.E.2d 500, 3 Ill.Dec. 861 (3d Dist. 1977), the home rule city, after the

mayor took office, enacted an ordinance establishing a salary of $250 per month for a liquor

control commissioner. Before this ordinance no extra compensation was provided for serving as

liquor control commissioner. The appellate court held that the mayor was not entitled to the

additional monthly compensation. In a subsequent case, the mayor was ordered to repay the

money. Dalton v. Wendt, 56 Ill.App.3d 859, 372 N.E.2d 720, 14 Ill.Dec. 524 (3d Dist. 1978). In

Lee v. City of Venice, 206 Ill.App. 376 (4th Dist. 1917), the court held that being president of the

board of local improvements was simply part of the mayor’s job and the mayor could not receive

separate salary for performing these duties when none had been established before his assuming

the office of mayor.

Since the elective office of city clerk is distinct from the appointed office of collector, the

clerk’s ex-officio duties as collector are not part of the function of the elective office. Code §3.1-

50-25 expressly approves compensation for each office when the clerk is also collector. In

Lemaster v. City of Green Rock, 114 Ill.App.3d 163, 448 N.E.2d 617, 69 Ill.Dec. 899 (3d Dist.

1983), the court held that compensating the clerk midterm for assuming the duties of collector did

not constitute an illegal increase in salary. In Harlan v. Sweet, 139 Ill.2d 390, 564 N.E.2d 1192,

151 Ill.Dec. 530 (1990), Lemaster was cited to the Supreme Court as a justification for an extra

“stipend” to be paid to county treasurers, which the court held to be an illegal increase in

compensation during their term of office. In commenting on Lemaster, the Harlan court said:

“We do not here pass on the validity of the holding in Lemaster.” 564 N.E.2d at 1195. So

Lemaster may be limited to its exact facts.

The matter of adjustments in salary before the onset of the term but after the election requires

close attention. The result seems to change as time goes on. In Winokur v. Bakalis, 84 Ill.App.3d

922, 405 N.E.2d 1329, 40 Ill.Dec. 237 (1st Dist. 1980), the court approved salary increases by a

lame-duck legislature after the election. A caution is in order since the provision involved here

was Article IV, §11, of the Illinois Constitution (relating to salary of the General Assembly),

while that governing local government is Article VII, §9(b). The operative words of both,

however, are almost exactly the same: “shall not take effect during the term for which he has been

elected” (ILL.CONST. art. IV, §11); and “shall not take effect during the term for which that

officer is elected” (ILL.CONST. art. VII, §9(b)). In Winokur v. Rosewell, 83 Ill.2d 92, 414 N.E.2d

724, 46 Ill.Dec. 671 (1980), a pay increase for county board members after election but before the

new term began was approved. However, in disapproving village president and trustee salary

increases after election, the court in Tupy v. Oremus, 105 Ill.App.3d 932, 435 N.E.2d 197, 202, 61

Ill.Dec. 708 (1st Dist. 1982), distinguished Rosewell and Bakalis as “inapposite because in each

the term of office commenced on a fixed date.” In Tupy, the court found that there was no

constitutional or statutory fixing of the onset of the term of office for the president and trustees

and therefore the general rule that the term starts on the date of election applied. The language of

Code §3.1-10-15, stating when terms of elected municipal officers begin, seems to provide that,

despite Tupy, salaries can be raised after elections but before the official term begins.

Baumrucker v. Brink, 373 Ill. 82, 25 N.E.2d 51 (1939), involved a salary increase for a local

government official. The court rejected an increase for the village president seemingly because

the president not only had been elected but also had begun his term of office. In People ex rel.

Holdom v. Sweitzer, 280 Ill. 436, 117 N.E. 625 (1917), the court held that an increase in salary for

judges effective after the election but before the judges received their commissions was not valid.

The holding was based on the premise that a judge’s term in office begins at the election.

Naturally, Tupy relied heavily on Holdom. In Brissenden v. Howlett, 30 Ill.2d 247, 195 N.E.2d

625 (1964), the court further refined the increase in salary issue by holding that an adjustment in

salary based on an extraneous factor such as population does not violate the constitutional

prohibition. The Local Government Officer Compensation Act, 50 ILCS 145/1, et seq., which

became effective November 8, 1995, requires compensation for elected officials to be established

180 days before the beginning of the term. It preempts home rule.

A. [4.25] Salary Adjustments for Those Appointed to Elective Office

In the event of a vacancy in an elected office, can the salary otherwise fixed for the elected

official who vacated the office be adjusted as to the person appointed to fill the vacancy? In

Foreman v. People ex rel. McEwen, 209 Ill. 567, 71 N.E. 35 (1904), the court considered the

application of the prohibition against salary raises that take effect during the term of office. In

Foreman, a salary increase was enacted for judges, and when the salary increase became effective

it was in the middle of the term for some judges. The question arose whether one filling a

vacancy in a fixed term should receive the lower salary that the incumbent would have received

or the higher salary. The court held that the higher salary should not be paid because the

prohibition regarding increases in salary referred to the term of office, not the individual filling it:

To say that the provision relates to the continuance in office of an individual and not

a term of office would prevent the increase of salary of a judge upon his re-election,

since in that case he would continue in the same office as judge, holding under one

election until he began his term of office under the next, with no interval. In such a

case there could be no change that would not be during his continuance in office. 71

N.E. at 37.

Winokur v. Rosewell, 83 Ill.2d 92, 414 N.E.2d 724, 46 Ill.Dec. 671 (1980), which approved a pay

raise for county officials after election but before taking office, cited Foreman with approval,

noting that the similar 1870 Constitutional provision was generally understood to make the term

of office the dispositive fact that prevented salary adjustments.

B. [4.26] Expense Accounts

An unconditional lump-sum expense allowance can constitute additional compensation to

elected officers within the meaning Article VII, §9(b), of the Illinois Constitution and cannot be

increased or decreased during the term of the elected officer. In DeSutter v. South Moline

Township Board, 96 Ill.2d 372, 449 N.E.2d 1355, 70 Ill.Dec. 751 (1983), the Illinois Supreme

Court upheld the township board’s reinstatement of unconditional lump-sum expense allowances

as they existed before and after the township officials’ election to the board as not violative of

Article VII, §9(b). After the officials took office, the board changed the expense allowance

system from an unconditional lump sum to a system of reimbursement for itemized expenses but

then went back to the old lump-sum system. The change back to a lump sum was challenged as

an unconstitutional increase in compensation. Because the board’s subsequent reinstatement of

the unconditional lump-sum expense allowances merely restored the officials’ compensation to

the preelection status quo ante, the Illinois Supreme Court refused to find that action

unconstitutional.

DeSutter establishes several significant principles. When elected municipal officers take

office with an unconditional lump-sum expense allowance as additional compensation, the

allowance cannot be increased or decreased during the officials’ term of office. According to that

principle, therefore, the expense allowance system cannot be changed from an unconditional

lump-sum expense allowance to a system that requires submission and reimbursement or other

approval of expenses. Conversely, as suggested in DeSutter, if such a voucher-type expense

allowance exists when an elected official takes office, it cannot be changed to an unconditional

lump-sum expense allowance during the official’s term in office. Similarly, a preexisting

unconditional lump-sum expense allowance cannot itself be increased or decreased during the

official’s term in office.

As to what constitutes an unconditional lump-sum expense allowance, DeSutter noted the

expense allowance in question was paid regardless of whether the officials incurred any expenses

and there was no requirement that officials account for the use of any part of the expense

allowance. The DeSutter court also noted that the township board intended the unconditional

lump-sum expense allowance as additional compensation; the Illinois Constitution prohibits

neither this form of compensation nor the denomination of such compensation as an expense

allowance.

Given the description of what the court termed an unconditional lump-sum expense

allowance, whether a municipality intends such an expense allowance to be compensation

appears to be irrelevant. No logical reason exists to distinguish compensation by salary from

guaranteed compensation under the classification of an expense allowance when the official

receives the entire expense allowance regardless of expenses incurred and with no requirement to

account for the use of the expense allowance. When an unconditional lump-sum expense

allowance is tantamount to compensation, it is suggested that substance should control over form,

and the provision of that expense account compensation should be provided for in the same

ordinance that fixes the officials’ salaries as a reminder of the DeSutter holding.

The result appears to be different with respect to appointed officials. Although DeSutter

equates lump-sum expense allowances with salaries for elected officials, and although Illinois

Municipal Code §3.1-50-10 states that salaries fixed in the appropriate ordinance cannot be

increased or diminished during the fiscal year, Code §3.1-50-5 expressly allows “salaries, fees, or

other compensation” of appointed officers to be increased but not diminished during the term for

which such officer was appointed. Thus, it would appear DeSutter would not control an increase

in compensation for appointed officials arising out of an adjustment in the system of expense

allowances.

Note, however, that DeSutter deals only with unconditional lump-sum expense allowances,

that is, expense allowances to be paid regardless of whether expense is incurred. The authors have

found no cases dealing with whether reimbursement for actual expenses could be either instituted

or discontinued during the term of office of either an elected or an appointed official. Since

reimbursement of actual expenses can be arguably differentiated from compensation in the nature

of a salary, it would appear logical that a voucher expense reimbursement system may be

instituted or discontinued even during the term of the officers.

VII. VACANCIES AND REMOVAL

A. [4.27] Conviction

Illinois Municipal Code §3.1-55-15 provides that “every municipal officer who is guilty of a

culpable omission of duty or who is guilty of willful and corrupt oppression, malconduct, or

misfeasance in the discharge of the duties of office shall be guilty of a business offense and, on

conviction, shall be fined not less than $501 nor more than $1,000.” The court in which such a

person is convicted must enter an order removing the convicted officer from office. Code §3.1-

10-50(a) states that a vacancy occurs in office if the officer has been convicted in Illinois state

courts of malfeasance in office, bribery, or other crimes. The treasurer can be removed for

personal use of city funds. Code §3.1-35-55. The determination of what constitutes an “infamous

crime” insofar as it affects a vacancy in office is not an exclusive function of the legislature but is

subject to judicial determination. People ex rel. City of Kankakee v. Morris, 126 Ill.App.3d 722,

467 N.E.2d 589, 81 Ill.Dec. 718 (3d Dist. 1984), involved an alderman convicted of theft

involving food stamp fraud; the alderman was sentenced to probation. The case contains a good

discussion of the parameters of “infamous crime.”

When a conviction occurs and, hence, when the vacancy exists could be critical in

determining on which side of the time line the unexpired vacancy falls for purposes of a special

election. People ex rel. Grogan v. Lisinski, 113 Ill.App.3d 276, 446 N.E.2d 1251, 68 Ill.Dec. 854

(1st Dist. 1983), held that the “conviction” does not occur until sentence is imposed. People ex

rel. Keenan v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168 (1958); People ex rel. Ward v. Tomek, 54

Ill.App.2d 197, 203 N.E.2d 744 (1st Dist. 1964).

B. [4.28] Removal of Residence

Illinois Municipal Code §3.1-10-50(a) provides that a vacancy occurs in the office of

alderman by removal of residence from the ward. It also states a vacancy occurs in an office

(among other reasons) by reason of “removal of residency from the municipality.” Note that this

is a separate section from those listing the general qualifications for elective or appointive office.

Code §§3.1-10-5, 3.1-10-6.

C. [4.29] Physical or Mental Incapacity

Illinois Municipal Code §3.1-10-50 declares that a vacancy occurs in an office by reason of

permanent physical or mental disability. Code §3.1-35-35(a) provides that a temporary disability

that incapacitates the mayor from performing his or her duties does not create a vacancy in office

and the mayor pro tem shall perform the duties of the mayor. Note that none of these sections

provides the forum in which, the procedure as to how, or by whom the determination of vacancy

is made. It is true that Code §3.1-40-10 provides that the council shall be the sole judge of the

election of aldermen and, further, that it shall be the sole judge of whether they are eligible for

office under Code §3.1-10-5, which provides the qualifications for office. Thus, it would appear

that once one is seated, there is no statutory guidance as to how a vacancy is declared or who

determines that a vacancy exists. The reported cases in Illinois do not provide firm guidance on

this point either. Aaron Jay Kramer, Administrative Law — Requirement of Notice and Hearing

Imputed into Statutory Procedure for Removal of Councilmen, 1966 U.Ill.L.F. 475, suggests that

there is, however, a common law requirement of notice and hearing before the removal of elected

officials. Thus, no doubt the safest course would be for the council itself, after due notice to the

elected official involved, to conduct a hearing and make a finding of fact before declaring the

office vacant. Taylor v. Beckham, 178 U.S. 548, 44 L.Ed. 1187, 20 S.Ct. 890 (1900), appears to

support this position. People v. Hanifan, 6 Ill.App. 158 (4th Dist. 1880), and Harrison v. People,

36 Ill.App. 319 (2d Dist. 1890), seem to approve that the council declare the vacancy after notice

and hearing.

It should be noted that in the absence of the mayor, acting mayor, or mayor pro tem, the

council can elect one of its members to act as temporary chair. Code §3.1-35-35(b). In Roti v.

Washington, 114 Ill.App.3d 958, 450 N.E.2d 465, 71 Ill.Dec. 30 (1st Dist. 1983), this authority

was employed when the mayor walked out of a meeting.

D. [4.30] Abandonment of Office

Illinois Municipal Code §3.1-10-50 states that a vacancy occurs in an office by reason of

abandonment of office. People v. Hanifan, 6 Ill.App. 158 (4th Dist. 1880), held that when an

elected alderman had failed to attend meetings of the city council for five months, there was an

implied resignation, and the resolution of the city council declaring a vacancy was upheld. In

People ex rel. Dinneen v. Bradford, 267 Ill. 486, 108 N.E. 732 (1915), the council merely refused

to pay a commissioner who did not attend meetings. The failure of the council to declare a

vacancy and appoint a new commissioner was pivotal. The mere neglect of an officer to perform

his or her duties without any action showing the intent to abandon the office will not suffice to

support the creation of a vacancy. Harrison v. People, 36 Ill.App. 319 (2d Dist. 1890). Fekete v.

City of East St. Louis, 315 Ill. 58, 145 N.E. 692 (1924), involved a city attorney, but a similar

principle was laid down.

E. [4.31] Resignation

Illinois Municipal Code §3.1-10-50(a) provides that a resignation creates a vacancy in office.

(See below concerning the problem of continuing in office until a successor qualifies.)

Apparently, in common law, the general rule was that resignation was not effective without

acceptance by the proper authorities. Edwards v. United States, 103 U.S. 471, 26 L.Ed. 314

(1880); Thompson v. United States, 103 U.S. 480, 26 L.Ed. 521 (1880). In Illinois a resignation

need not be accepted to be effective. People ex rel. Adamowski v. Kerner, 19 Ill.2d 506, 167

N.E.2d 555 (1960). In Kerner, which involved the resignation of an elected county judge, the

court observed that the resignation of an officer is effective (either immediately or on the

specified date) when the resignation is received by or filed with the officer authorized by law to

fill the vacancy or to call an election for that purpose. Since under Code §§3.1-10-50(b) and 3.1-

30-5(a), it is the mayor who may fill a vacancy, it would seem that delivery of the resignation to

the mayor would complete the matter. People ex rel. Coker v. Owen, 116 Ill.App.3d 506, 451

N.E.2d 1021, 71 Ill.Dec. 867 (5th Dist. 1983). The general rule appears to be the same with

regard to employees. Stearns v. Board of Fire & Police Commissioners of City of Carbondale, 59

Ill.App.3d 569, 375 N.E.2d 877, 16 Ill.Dec. 770 (5th Dist. 1978). The rule applies not only to

elected positions, but also to nonelected positions such as firemen and policemen. Weber v. Board

of Fire & Police Commissioners of Village of Wheeling, 204 Ill.App.3d 358, 562 N.E.2d 318, 159

Ill.Dec. 854 (1st Dist. 1990).

An amendment to the Election Code, 10 ILCS 5/25-2, makes it clear that as to an elective

office, an unconditional resignation effective at a future date may not be withdrawn after it is

received by the officer authorized to fill the vacancy. Again, Kerner, supra, 167 N.E.2d at 558, is

helpful:

However, public policy requires that there be certainty as to who are and who

are not public officers. Otherwise, there is doubt and confusion which leads to

needless litigation. Therefore, the resignation of an officer effective either forthwith

or at a future date may not be withdrawn after such resignation is received by or

filed with the officer authorized by law to fill such vacancy or to call an election for

such purpose.

However, see Bovinette v. City of Mascoutah, 55 Ill.2d 129, 302 N.E.2d 313, 316 (1973), in

which the court, without citing authority, held that although the chief of police submitted a

resignation, which was accepted before the effective date and later withdrawn before the effective

date,

[i]n view of these facts we find that the City had permitted the withdrawal of the

resignation. . . . The City cannot now contend that he had resigned.

However, resignation may be conditional, requiring acceptance to become effective. In City

of Chicago ex rel. Martin-Trigona v. O’Malley, 69 Ill.2d 474, 372 N.E.2d 671, 14 Ill.Dec. 475

(1978), a Regional Transportation Authority commissioner tendered his resignation to the officer

empowered to appoint his successor, the Mayor of Chicago. The commissioner made it “effective

at your convenience.” 372 N.E.2d at 675. The mayor rejected it. The court held: “This is

tantamount to an offer of resignation, effective only upon acceptance.” 372 N.E.2d at 674.

O’Malley, along with other cases, illustrates that resignation cases can be very much fact

dominated. In Fruhling v. County of Champaign, 95 Ill.App.3d 409, 420 N.E.2d 1066, 1071, 51

Ill.Dec. 508 (4th Dist. 1981), citing O’Malley, the court said that the effective resignation

“requires an intention to relinquish the employment accompanied by an unequivocal act of

relinquishment.”

Code §3.1-10-50(d) provides that one continues in office until a successor has qualified. The

effect of this language was considered in Swain v. County of Winnebago, 111 Ill.App.2d 458, 250

N.E.2d 439 (2d Dist. 1969). In Swain, a member of the county board resigned, but no successor

had been appointed when a vote on a zoning matter arose that required a three-fourths affirmative

vote because of a protest petition. The question was whether the requirement was three fourths of

39 or of 38. The court held 38 was the correct number. “It would be a narrow and obviously

impossible construction . . . to say that a public office may in no case become vacant until a

successor to the officer is elected and qualified.” 250 N.E.2d at 446, quoting People ex rel.

McCarthy v. Barrett, 365 Ill. 73, 5 N.E.2d 453, 457 (1936).

F. [4.32] Removal of Officers

Illinois Municipal Code §3.1-35-10 states that except when provided otherwise by statute, the

mayor may remove any officer appointed by him or her “under this Code” on any written charge

whenever he or she is of the opinion that the interest of the city demands removal. The mayor

must report the reasons for the removal to the council at a meeting to be held not less than five

nor more than ten days after removal. If the mayor fails to make this report or if the council by

two-thirds vote of all of its members authorized by law to be elected disapproves of the removal,

the officer is thereupon restored.

With respect to the chiefs of police and fire departments appointed under Code §10-2.1-1, et

seq., rather than civil service, the “appointing authority” must give reasons for the discharge to

the corporate authorities, who must “confirm” that action for the removal to become effective.

Code §§10-2.1-4, 10-2.1-17, 5-3-7.

G. [4.33] Employee Termination

Municipal employees, under civil service, cannot generally be removed by either the

municipality or the Civil Service Commission except according to the civil service statutes. While

a municipality may in good faith abolish a position, neither the municipality nor the Civil Service

Commission may abolish a position merely to remove an employee only later to reestablish the

position with another person as the employee in that position. People ex rel. Jacobs v. Coffin, 282

Ill. 599, 119 N.E. 54 (1918). See generally Annot., 87 A.L.R.3d 1165 (1978).

Despite the general rule in Illinois that, absent special arrangements, public employment is

“at will,” there is a developing body of law to the effect that there are some constitutional rights

in public employment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d 548,

92 S.Ct. 2701 (1972). It clearly appears that there can be a “property interest” in continued

government employment that must be afforded the protections of due process. The property

interest can be created by a personnel manual that allows termination only for cause or refers to

permanent employment after a probationary period.

While every public employee does not have a right to continued employment, a

public employee can have such a right dependent upon the surrounding

circumstances including existing rules and understandings. Buccieri v. Wayne

Township, 111 Ill.App.3d 396, 444 N.E.2d 249, 252, 67 Ill.Dec. 210 (2d Dist. 1982).

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L.Ed.2d 494, 105 S.Ct. 1487

(1985); Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), vacated on other grounds, 98 S.Ct.

3118 (1978); Serafin v. City of Lexington, Nebraska, 547 F.Supp. 1118 (D.Neb. 1982). See 4

Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS §12.260.05 (3d ed. rev.

2002), for a further discussion on employment termination.

Rosewitz v. Latting, 689 F.2d 175 (10th Cir. 1982), contains a good outline of the minimum

standards of due process in an employee termination case (when a property interest was

assumed). In Rosewitz, the court indicated the minimum due process required: clear notice, time

to prepare, an opportunity to present evidence or material, and an impartial hearing. If the above

are provided, Rosewitz seems to indicate that due process does not require a full adversarial

hearing, confrontation of witnesses, cross-examination, or an attorney representative.

The Illinois courts have recognized a limited and narrow cause of action for the tort of

retaliatory discharge. Palmateer v. International Harvester Co., 85 Ill.2d 124, 421 N.E.2d 876, 52

Ill.Dec. 13 (1981). To state a valid retaliatory discharge claim, an employee must show that he or

she was dismissed in retaliation for his or her activities and that the dismissal was in

contravention of a clearly mandated public policy. Although related, retaliatory discharge as a

cause of action is to be distinguished from “whistleblowing.” Whistleblowing brings in the

element of protecting the public interest as opposed to mere personal retaliation.

There is an increasing recognition of the protected rights of a whistleblowing public

employee. See the Whistleblower Reward and Protection Act, 740 ILCS 175/1, et seq. See also

Givhan v. Western Line Consolidated School District, 439 U.S. 410, 58 L.Ed.2d 619, 99 S.Ct.

693 (1979). In Fellhauer v. City of Geneva, 142 Ill.2d 495, 568 N.E.2d 870, 872 – 873, 154

Ill.Dec. 649 (1991), the appointed “director of electrical services” alleged he was fired by the

mayor because he refused to do something that the director contended would have been “official

misconduct” as defined by the Criminal Code of 1961. 568 N.E.2d at 873. The court held that the

director “failed to demonstrate that his discharge contravened a clearly mandated public policy.”

568 N.E.2d at 877. The special concurring opinion emphasized that the director never made it

clear how accommodating the mayor’s request would have amounted to “official misconduct.”

568 N.E.2d at 882 (Freeman, J., concurring).

The U.S. Supreme Court recently ruled that, although the state is not subject to liability, local

governments are persons and amenable to qui tam actions under the False Claims Act, 31 U.S.C.

§3729(a). In Cook County v. United States ex rel. Chandler, 538 U.S. 119, 155 L.Ed.2d 247, 123

S.Ct. 1239 (2003), an employee reported that the Cook County Hospital submitted false

statements to obtain grant funds.

H. [4.34] First Amendment Rights and Political Activity of Employees

The right of the government in its role as an employer to regulate employee conduct and

speech can clash with the employee’s First Amendment rights. When that happens, the courts

have applied a balancing test weighing the government’s interest as an employer in providing

operational efficiency in government against the employee’s rights to express concerns involving

public issues. The cases arise in the context of disciplinary action and retaliatory discharge. The

leading cases are Pickering v. Board of Education of Township High School District 205, Will

County, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968), and its progeny. The court in Hall

v. Missouri Highway & Transportation Commission, 235 F.3d 1065, 1068 (2000), summarizes

six factors to be considered in the balancing test as follows: “(1) the need for harmony in the

office; (2) whether the government’s responsibilities require a close working relationship; (3) the

time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree

of public interest in the speech; and (6) whether the speech impeded the employee’s ability to

perform his or her duties.”

Adding to the problems of proper analysis is that in most cases there are relationship

problems between the employer and employee before the adverse employment action is taken.

When public safety personnel are involved, the government’s interest in discipline and order

seems to enjoy more weight in the balance.

With respect to employees in their First Amendment political affiliation rights, U.S. Supreme

Court cases have made it clear that non-policy-making employees are protected by their First

Amendment rights from employment decisions being made regarding them on the basis of their

political affiliation. Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L.Ed.2d 52, 110 S.Ct.

2729 (1990). Rutan held that this protection extends to promotions, transfers, and recalls as well

as hiring. The rule also protects the city from certain forms of political activity by employees if

the prohibition is clearly expressed in writing and is reasonably precise. Like any First

Amendment restriction, it must be narrowly drawn and reasonably necessary to achieve a

significant governmental interest. Savage v. Commonwealth of Pennsylvania, 475 F.Supp. 524

(E.D.Pa. 1979), aff’d, 620 F.2d 289 (3d Cir. 1980); Vincent v. Maeras, 447 F.Supp. 775 (S.D.Ill.

1978); United States Civil Service Commission v. National Association of Letter Carriers, 413

U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973). The courts have approved restrictions on

running for office (Otten v. Schicker, 655 F.2d 142 (8th Cir. 1981)), publicly endorsing city

council candidates, soliciting contributions for city council candidates, wearing city council

campaign buttons at work or while in city uniform, etc. United States Civil Service Commission,

supra. See generally Annot., 44 A.L.R.Fed. 306 (1979).

Generally, the situation is somewhat different with regard to employees that are policymaking

employees or those who enjoy a “confidential” relationship with the head of the

department or agency, but even then a U.S. Supreme Court case indicated that such dismissals are

constitutionally permitted only if political party membership and commitments are essential

requirements for the effective performance of the public office involved. Branti v. Finkel, 445

U.S. 507, 63 L.Ed.2d 574, 100 S.Ct. 1287 (1980). Fellhauer v. City of Geneva, 142 Ill.2d 495,

568 N.E.2d 870, 154 Ill.Dec. 649 (1991), a retaliatory discharge case, discusses when an official

is in a policy-making position. See also Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991),

which discusses when political affiliation is a proper consideration. Also, it should be noted that

the U.S. Supreme Court in O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 135

L.Ed.2d 874, 116 S.Ct. 2353 (1996), extended the principles of retaliatory discharge to apply to

an independent towing contractor whose contract was terminated for exercising his rights of

political expression and allegiance.

Caution is in order if the political activity involved is a referendum election as the rules may

be somewhat different. Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981).

Zook v. Brown, 575 F.Supp. 72 (C.D.Ill. 1983), is another illustration that the political

activity rules are perhaps different when a public question rather than a candidate is involved.

Zook concerned a disciplinary action against a deputy for a “letter to the editor” endorsing a

particular ambulance service during a time when ambulance service was a matter of local public

debate. In order to determine whether an employer is entitled to suppress the speech of an

employee on a matter of public concern, courts must invoke a balancing test. Essentially the

judge must weigh the interests of the speaker in voicing his or her opinion against the employer’s

need to promote a harmonious working environment. For a good discussion of the appropriate

balancing test, see Campbell v. Towse, 99 F.3d 820 (7th Cir. 1996).

I. [4.35] Filling Vacancies in Elective Offices

Illinois Municipal Code §3.1-10-50 sets forth the general rule for filling vacancies in elective

office. If the term of office was a four-year term and the unexpired portion of the term is at least

28 months, then if the vacancy occurs at least 130 days before the next scheduled general

municipal election, the vacancy is filled by election; otherwise, the office is filled by appointment

by the mayor with the advice and consent of the council. If the vacancy is to be filled by election,

the mayor, with the advice and consent of the council, may appoint someone to serve until the

office is filled by election. However, if the vacancy is in the office of mayor, an acting mayor is

elected from among the council members to serve until the next available election under the times

set forth. An appointment to fill a vacancy in the office of alderman must be made within 60 days.

Code §3.1-10-50(e).

P.A. 94-645 clarifies what happens when an alderman is elected as acting mayor. After

January 1, 2006, in municipalities under 500,000, the person elected to the acting mayor position

has the option of resigning the alderman seat and then enjoying the full powers of the mayor,

including a veto power. If the person elected acting mayor does not resign his council seat, he

then exercises the powers of mayor, but can only vote as a council member (with no veto) until a

new mayor is elected, at which point he or she returns to the council seat.

Although Code §3.1-10-50 applies to all elective offices, Code §3.1-20-5 addresses vacancy

in the office of the city clerk or treasurer and provides for appointment of a successor by the

mayor with advice and consent of the council, but this section has no limitations on the amount of

unexpired term left at the time the vacancy occurs. Code §3.1-35-95 provides for a deputy clerk

to discharge the duties of the clerk in the event of absence or incapacity of the elected clerk.

VIII. PECUNIARY INTERESTS

A. [4.36] In General

Article XIII, §2, of the Illinois Constitution provides that the General Assembly by law may

impose requirements for filing a verified statement of economic interests on candidates for or

holders of offices in units of local government. The Constitution itself provides the penalty:

“Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture

of, office.” Id. Verified statements of economic interests are required under Article 4A of the

Illinois Governmental Ethics Act, 5 ILCS 420/4A-101, et seq., for persons who are elected to and

candidates for nomination to an office of a unit of local government; however, provision is made

for one 30-day extension. 5 ILCS 420/4A-105. In People ex rel. Klingelmueller v. Haas, 111

Ill.App.3d 88, 443 N.E.2d 782, 66 Ill.Dec. 856 (3d Dist. 1982), however, the court held that

because there was no timely challenge to candidacy filed under the Election Code, a lawsuit after

the election seeking a declaration of forfeiture of office was no longer the proper remedy. There

was a failure to exhaust the administrative remedy under the Election Code. The statutes

requiring the filing of an economic intent statement also apply to persons appointed to a zoning

board of appeals or a plan commission. Last, they apply to all employees of a unit of local

government who are certified by the chief administrative officer of the municipality to be of a

class of employees who fall within the criteria set forth in the statutes. Those criteria generally

relate to positions that have significant influence over decisions of the municipality or grant

licenses or have authority to spend government funds.

Illinois Municipal Code §3.1-55-10 provides that no municipal officer shall have any direct

or indirect pecuniary interests in any business of the municipality. Special conflict of interest

provisions regarding interest in real estate within a tax increment finance area are found in Code

§§11-74.2-13 and 11-74.4-4(n). The Public Officer Prohibited Activities Act contains the most

pervasive statements regarding conflicts of interest and provides that a violation thereof is a Class

4 felony. 50 ILCS 105/3, 105/4. Violations of Code §§3.1-55-10 and 4-8-6 also constitute Class 4

felonies.

Code §4-8-6 (commission form of government) extends the prohibition of pecuniary conflicts

of interest to municipal employees as well as officers and further prohibits both from doing

business with public utilities. Municipal officers are absolutely prohibited from purchasing,

directly or indirectly, municipal property sold outright or through legal process and from

purchasing property sold for taxes or assessments. See City of Chicago ex rel. Cohen v. Keane, 64

Ill.2d 559, 357 N.E.2d 452, 457, 2 Ill.Dec. 285 (1976) (Underwood, J., concurring).

These conflict of interest statutes are declarative of the common law and public policy against

self-dealing by public officials. Public officials are in a fiduciary relationship to the public and the

governmental unit of which they are officials. To ensure their duty of faithful performance of

official duties, the common law and now the conflict of interest statutes attempt, by prohibiting

conflicting pecuniary interests, to prevent public officials from making decisions that may

advance or injure their individual interests. See, e.g., People v. Savaiano, 66 Ill.2d 7, 359 N.E.2d

475, 3 Ill.Dec. 836 (1976); Keane, supra; Huszagh v. City of Oakbrook Terrace, 41 Ill.2d 387,

243 N.E.2d 831 (1968); Village of Wheeling v. Stavros, 89 Ill.App.3d 450, 411 N.E.2d 1067, 44

Ill.Dec. 701 (1st Dist. 1980); People v. Simpkins, 45 Ill.App.3d 202, 359 N.E.2d 828, 3 Ill.Dec.

969 (5th Dist. 1977). When a public official breaches his or her fiduciary duty under common law

or statute, an action can be brought against the official by the governmental unit, the taxpayers, or

the public. Aside from statutory penalties, such an action can, for example, compel the official to

make an accounting to the municipality, regardless of whether it suffered an economic loss, and

to make restitution. Keane, supra; DiSanto v. City of Warrenville, 59 Ill.App.3d 931, 376 N.E.2d

288, 17 Ill.Dec. 289 (2d Dist. 1978). In one case, the court upheld the imposition of a constructive

trust on a third person who caused municipal officials to breach their fiduciary duty to the public.

Village of Wheeling, supra.

In Brown v. Kirk, 64 Ill.2d 144, 355 N.E.2d 12 (1976), the Supreme Court reversed the

appellate court and held that the Public Officer Prohibited Activities Act prevented a tenant from

acting as a commissioner of the housing authority. In Brown, the court noted that the Act was

intended not only to prohibit “actual bad faith abuse of power” but also “to prevent the creation of

relationships which carry in them the potential of such abuse, by removing the possibility of

temptation.” 355 N.E.2d at 16. However, shortly after the holding in Brown, the legislature

amended the statute to permit a tenant to serve as a commissioner. More importantly, however,

Croissant v. Joliet Park District, 141 Ill.2d 449, 566 N.E.2d 248, 152 Ill.Dec. 561 (1990),

probably escalated the broad holding of Brown to the extent it stood for a per se conflict of

interest in such relationships. In Croissant, a park district commissioner who owned a business

that was a tenant of the park district’s airport was held not to have a per se conflict of interest and

was allowed to vote on certain matters because the court found that he had no “immediate,

ascertainable interest” in those decisions. 566 N.E.2d at 253.

In Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill.App.3d 926,

347 N.E.2d 34 (4th Dist. 1976), the appellate court determined that what is now the Public

Officer Prohibited Activities Act applied only to public officers, not to employees, and therefore

held that a consultant hired by the city did not fall within the prohibitions of the Act. Accord

Savaiano, supra.

Finally, in Simpkins, supra, a criminal case, the indictment, based on a spouse’s employment

with the city, was dismissed because the self-dealing sought to be prevented under the Act does

not encompass a mere marital relationship with nothing more.

B. [4.37] Conflicts of Interest Permitted by Statute

In recognition of the fact that some allowance should be made for members of the governing

body to sell goods and services to the municipality served, both the Public Officer Prohibited

Activities Act (50 ILCS 105/3) and §3.1-55-10 of the Illinois Municipal Code provide for limited

sales under limited conditions. The two statutes essentially duplicate each other but provide a

hodgepodge of exceptions that mostly require that, before any vote, the member of the governing

body disclose his or her interest, refrain from participating in discussion, and abstain from voting

on the matter. The first exception states that if a member is an employee of a company or owns

less than one percent of the company and if the company’s stock is listed on a nationally

recognized stock exchange, then the member will not be deemed an interested party. 50 ILCS

105/3(e); Code §3.1-55-10(a). If the member’s ownership is less than seven and one-half percent

and the contract is for less than $1,500 (or, if more than $1,500, by sealed bid), then the sale is

permissible if the aggregate for that year to that business does not exceed $25,000. 50 ILCS

105/3(b)(1); Code §3.1-55-10(b)(1). A sale is also permissible if the contract does not exceed

$2,000 and the aggregate for one year does not exceed $4,000. 50 ILCS 105/3(b)(2); Code §3.1-

55-10(b)(2).

A contract for procurement of public utility services (regardless of the amount) does not

constitute a conflict of interest if the member does not own an interest of more than a seven and

one-half percent in the public utility company, or any amount of ownership if the municipality

has a population of less than 7,500 and the rates are approved by the Illinois Commerce

Commission. 50 ILCS 105/3(c); Code §3.1-55-10(c).

Furthermore, nothing precludes depositing money in a local bank if the member is an

employee or owns less than seven and one-half percent of the bank. Code §3.1-55-10(e).

Last, there is a special provision for municipalities of fewer than 20,000 inhabitants that

allows a member to purchase real estate from the municipality if the member pays the full

appraised price. 50 ILCS 105/3(d); Code §3.1-55-10(f).

C. [4.38] Local Improvements

The situation frequently arises in which the corporate authorities, under Article 9 of the

Illinois Municipal Code (Local Improvements), consider an ordinance for a local improvement

and one of the aldermen is affected by the local improvement ordinance by virtue of living on the

street being improved. The question then becomes: Does the alderman have a conflict of interest

in voting on the local improvement ordinance? The question is really twofold: (1) whether the

alderman can or will be prosecuted for a violation of the Public Officer Prohibited Activities Act,

50 ILCS 105/3, and (2) whether a vote in such circumstances would so vitiate the process that the

local improvement project would be upset in court. All the cases cited in §4.37 above touch on

the point, but it is suggested that as long as the particular local improvement is handled

financially in a manner similar to prior local improvements, the alderman may validly vote on the

improvement because the alderman’s position is no different from all others affected by the

ordinance. See 4 Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS §13.35 (3d

ed. rev. 2002), for a further discussion on local improvements by which an alderman is benefited.

IX. EMPLOYEES

A. [4.39] Civil Service

All municipalities, unless they have adopted by referendum the system outlined in Illinois

Municipal Code §10-1-1, et seq. (Civil Service in Cities), and except as far as the provisions of

Code §10-2.1-1, et seq. (Board of Fire and Police Commissioners) are applicable, are free to

adopt their own personnel administration system. Since civil service can be acquired only after

voter approval, it is doubtful whether a non-home rule municipality could establish a modified

civil service system by ordinance alone. The total civil service system, as set forth in Code §10-1-

1, provides that certain employees are exempted from the classified service, and further, the

statute strictly controls original entry, promotions, and removals. This section also severely limits

political activities by employees.

B. [4.40] Workers’ Compensation

Municipalities are included in the definition of an “employer” in §1(a) of the Workers’

Compensation Act, 820 ILCS 305/1, et seq.

C. [4.41] Union Recognition

The Illinois Public Labor Relations Act, 5 ILCS 315/6(a), grants to public employees the

right to “form, join or assist any labor organization, to bargain collectively through

representatives of their own choosing on questions of wages, hours and other conditions of

employment.” The Act also grants most public employees the right to strike under certain

circumstances (5 ILCS 315/17(a)) and subjects employees who participate in a strike, work

stoppage, or slowdown “in violation of this Act” to discipline by the employer (5 ILCS

315/17(b)). A discussion of these issues is contained in the chapter on labor law in Volume IV of

IICLE’s ILLINOIS MUNICIPAL LAW SERIES (publication scheduled for fall 2006). Officials

in non-unionized municipalities should be aware that unions can now be recognized without an

election according to the provisions of P.A. 93-444. This method allows collecting sufficient

authorization cards to warrant recognition by the Illinois Labor Relations Board.

D. [4.42] Personnel File

The Personnel Record Review Act, 820 ILCS 40/2, grants employees the right to inspect their

personnel files. Exceptions include reference letters, test documents, materials used by the

employer relating to recommendations for the employee’s future salary increases, promotions, or

job assignments, information that would invade other employees’ privacy, claims information,

and investigations of criminal conduct by an employee. An employee has the right to insert into

the record his or her own version of a matter when disputing the information contained in the

personnel record. 820 ILCS 40/6. The most important impacts are the prohibition of revealing the

information in the file to third parties without following the Act and the prohibition of recordkeeping

on employees’ associations and political activities and the like that are unrelated to the

employment without the employee’s written authorization. 820 ILCS 40/8, 40/9. Violation of this

Act can incur an award of $200 plus costs, reasonable attorneys’ fees, and actual damages. 820

ILCS 40/12(d).

Note that the Personnel Record Review Act was held unconstitutional in Spinelli v. Immanuel

Lutheran Evangelical Congregation, Inc., 118 Ill.2d 389, 515 N.E.2d 1222, 113 Ill.Dec. 915

(1987). P.A. 85-1393 (eff. Sept. 2, 1988) specifically amended §10 of the Act to remedy the

constitutional deficiencies identified in Spinelli. See also Op. Att’y Gen. (Ill.) 92-005.

E. Federally Mandated State and Local Employment Practices

1. [4.43] Fair Employment Practices

Federal law has steadily expanded the framework of fair employment practices. It now covers

virtually every part of the employment relationship from recruitment to hiring, promotion and

termination. One key statute is Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et

seq., and the 1971 amendment that extends the Act’s reach to local governments. Present

provisions make it unlawful to discriminate against any individual in hiring, discharge,

compensation, or terms, conditions, or privileges of employment based on race, color, religion,

sex, or national origin. 42 U.S.C. §2000e-2(a). These provisions cover a large array of workplace

practices and conditions. While the Equal Employment Opportunity Commission (EEOC) is

involved in enforcement, private rights of action are allowed in certain circumstances.

Practitioners also should be aware of the interplay with the Illinois Human Rights Act, 775

ILCS 5/1-101, et seq., which provides a state forum for employment discrimination complaints.

Notably, Illinois added “sexual orientation” to “race, color, religion, sex, national origin,

ancestry, age, marital status, physical or mental handicap, military status . . . or unfavorable

discharge from military service” in §1-102 of the Act pursuant to P.A. 93-1078 (eff. Jan. 1, 2006).

However, the statute is new and its impact is still a work in progress.

Title VII does not supersede 42 U.S.C. §1983, which allows suits against a municipality and

individual officers for deprivations of rights, privileges, or immunities while acting “under color

of statute, ordinance, regulation, custom, or usage.” Section 1983 actions allow for not only

compensatory damages but backpay, injunctive relief, and attorneys’ fees in certain

circumstances. Furthermore, §1983 allows a plaintiff to maintain actions under theories not

recognized by Title VII and other antidiscrimination statutes, including due process, free speech,

and search and seizure violations.

Other laws implicating fair employment procedures include the Equal Pay Act of 1963, 29

U.S.C. §206(d) (prohibition on differential pay based on sex), the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §621, et seq. (prohibition of age discrimination in

employment), the Rehabilitation Act of 1973, 29 U.S.C. §701, et seq. (prohibition of

discrimination against qualified individuals with disabilities by institutions or programs receiving

federal funds), and the Immigration and Nationality Act of 1952, 8 U.S.C. §1324 (prohibiting

certain employers from discriminating on the basis of citizenship status or national origin — but

not extending to illegal aliens). Many of these acts have been amended, and all have conditions

that require close analysis to determine their applicability to individual situations.

Attorneys are referred to Chapter 5 of this handbook for a fuller explanation of employment

law issues. It should be noted, however, that state and federal laws are not always in concert, and

the interplay of different statutes and case law should be kept in mind when analyzing specific

situations.

2. [4.44] Fair Labor Standards

The Fair Labor Standards Act (FLSA), 29 U.S.C. §201, et seq., applies to municipalities

pursuant to Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L.Ed.2d

1016, 105 S.Ct. 1005 (1985). Previously, the U.S. Supreme Court held federal enactments

subjecting state and local employees to the FLSA to be unconstitutional in National League of

Cities v. Usery, 426 U.S. 833, 49 L.Ed.2d 245, 96 S.Ct. 2465 (1976).

The FLSA requires employers to pay at least a federal threshold minimum wage and overtime

at the rate of one and one-half times regular pay for hours worked in excess of 40 hours per week.

However, there are exceptions for executives, administrators, and professional employees. There

are also special provisions applicable to firefighters and police officers because of their unique

schedules. It should be noted that local governments frequently use compensatory time in lieu of

overtime — a practice that is allowed by state and federal law within certain guidelines.

Collective bargaining agreements also may impact local practices.

It also should be noted that the State of Illinois has individual statutes dealing with these

issues that are not necessarily in concert with federal law. For example, Illinois has a higher

minimum wage than the federal minimum standard. Therefore, practitioners should examine both

state and federal law when analyzing an issue.

3. [4.45] Sexual Harassment

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., it is an unlawful

employment practice to discriminate against any individual in hiring, discharge, compensation,

terms, conditions, or privileges of employment based on race, color, religion, sex, or national

origin. Sexual harassment of a magnitude that affects a person’s employment or creates a hostile

work environment violates Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L.Ed.2d

49, 106 S.Ct. 2399 (1986). An isolated incident, a single tasteless remark, or a subjective

perception of a hostile environment, without more, generally will not result in liability. But the

harassing conduct need not be sexual as long as it is sex based. Williams v. General Motors

Corp., 187 F.3d 553 (6th Cir. 1999).

A municipality can be liable when the municipality or its officers had actual knowledge of

sexual harassment and failed to stop the offending conduct. Katz v. Dole, 709 F.2d 251 (4th Cir.

1983). However, the employee has a duty to inform the employer of the harassment, and it is an

affirmative defense that the city exercised reasonable care to prevent and promptly correct any

sexually harassing behavior. McPherson v. City of Waukegan, 379 F.3d 430, 441 (7th Cir. 2004).

Remedies include reinstatement, backpay, installation in the position sought, and/or

compensatory and punitive damages.

It is essential for municipalities to have policies to prevent sexual harassment and to remedy

harassment complaints. It is also important to provide training and information about those

policies and to be prepared to deal quickly and appropriately with problems when they arise. How

effectively problems are addressed when brought to an officer’s or supervisor’s attention can be

determinative of liability.

4. [4.46] Age Discrimination

The Age Discrimination in Employment Act of 1967, 29 U.S.C. §621, et seq., was amended

in 1974 to include local governments within its scope. Originally, it prohibited discrimination in

employment against any person between ages 40 and 70. Subsequent amendments and litigation

have removed the upper age limit. The thrust of the Act is that a person over 40 cannot be

terminated or refused entry based on age alone unless age is a bona fide occupational

qualification. Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 75 L.Ed.2d

18, 103 S.Ct. 1054 (1983). As the Act is presently codified, local governments can legitimately

set age limitations for police officers and firefighters because of the physical requirements of

these jobs.

It should be noted that age discrimination issues are not limited to hiring and termination, but

also can arise in promotion, assignment, and other employment practices.

5. [4.47] Disabilities

Under Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et

seq., employers are prohibited from discriminating against a “qualified individual with a

disability.” 42 U.S.C. §12112(a). “Qualified individual with a disability” is defined as “an

individual with a disability who, with or without reasonable accommodation, can perform the

essential functions of the employment position.” 42 U.S.C. §12111(8). The ADA broadly defines

“disability” and “reasonable accommodation.” Much of the litigation in this area focuses on what

is a qualified disability — which thus far has proved to be a moving target. Cities should review

and update their job descriptions for all positions to define specifically the essential functions of

each employment position. See also Condon A. McClothlen and Brian J. Hipp, Ch. 3,

Employment Issues Under Title I of the Americans with Disabilities Act, DISABILITY LAW

TODAY: AN ACCESSIBLE GUIDE FOR ILLINOIS PRACTIONERS (IICLE, 2006).

The prohibition against employment discrimination applies to all aspects of the employment

relationship, including hiring, promoting, terminating, training, and providing employee benefits.

All city officials involved in personnel matters should be made aware of the requirements of the

ADA, and practitioners are advised to treat this area of the law as a subject for continuing inquiry.

Title II of the ADA applies to all public entities and prohibits discrimination in any activity of

the public entity. Pursuant to authority in the ADA, the Attorney General has promulgated

regulations for implementing Title II. 28 C.F.R. pt. 35. Section 35.107 of these regulations

requires all public entities that employ 50 or more persons to designate at least one employee to

coordinate ADA compliance activities. Those public entities are also required to adopt a

grievance procedure for the prompt resolution of complaints under the ADA. 28 C.F.R. §35.107.

Title V of the ADA provides that a state shall not be immune under the Eleventh Amendment

to the United States Constitution from enforcement under the ADA. Title V also provides that

attorneys’ fees, including litigation expenses and costs, may be awarded the prevailing party in an

action brought under the ADA.

The ADA also impacts building access and renovations. However, those issues are beyond

the scope of this chapter.

6. [4.48] Family and Medical Leave; Military Leave

Most municipalities will encounter requests for family medial leave and/or military leave.

These are governed by separate Acts, but have similar impacts on municipal obligations.

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §2601 et seq., requires

public and private employers with 50 or more employees to provide eligible employees with up to

12 workweeks of unpaid leave per year for certain kinds of family and/or health related needs.

These include childbirth, adoption or foster care, and a serious health condition of the employee

or an immediate family member. A “serious health condition” includes illness, injury,

impairment, or a physical or mental condition that involves inpatient care or continuing treatment.

The leave is unpaid, but the employer must continue to provide group health care benefits

during the leave on the same terms and conditions as extended to other employees. Likewise, the

employee must be returned to his or her former position or an equivalent position with all

attendant benefits and salary. The Act is enforced by the Department of Labor, but employees can

bring suit and recover a full range of remedies, including double actual losses. There has been and

will continue to be evolving law regarding what constitutes a covered illness and physical and/or

mental impairment.

It should also be borne in mind that an employee need not take extended leave in order to

trigger the FMLA; it can be utilized for short-duration periods in certain circumstances — usually

when sick days and other benefits have been exhausted and an employee has a qualifying

condition.

Military leave provisions are covered by both federal and state statutes. Congress passed the

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C.

§4301, et seq., for the purposes of eliminating or minimizing (a) disadvantages to the careers and

employment of persons performing service in the uniformed services, (b) disruptions to their

lives, and (c) discrimination against them. Upon notice to the employer, USERRA provides

certain employment protections to deployed members of military units and provides for

continuing benefit accrual subject to certain conditions. USERRA also provides health care

benefits similar to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA),

Pub.L. No. 99-272, 100 Stat. 82 (1986), for persons deployed, but unlike COBRA, it applies to

employers of fewer than 20 employees, as well.

Significantly, under the Illinois Local Government Employees Benefits Continuation Act, 50

ILCS 140/1, et seq., an Illinois employee who is called up is entitled to full compensation and

benefits for the duration of his or her active military service. The only deduction from prior

compensation and benefit levels is an amount equal to the amount of base pay for military

service. Consequently, Illinois law is more generous than USERRA and controls.

These provisions are highlighted for the purpose of alerting practitioners to the interplay of

state and federal statutes and the need to ensure that municipalities comply with these provisions

when an employee is deployed as part of a military unit.

X. [4.49] MEMBERS OF BOARDS AND COMMISSIONS

The function of this portion of the chapter is not to treat the various duties of the various

boards and commissions but rather to touch on the status of board members and commissioners.

In those boards and commissions created by statute, frequently the statute requires certain

qualifications or, in some instances, lists certain disqualifications for office.

It is not always possible to predict accurately whether a member of a particular board or

commission will be considered an “officer” by a reviewing court. For example, contrast the

holding in Paglini v. Police Board of City of Chicago, 61 Ill.2d 233, 335 N.E.2d 480 (1975), that

members of the City of Chicago “police board” were not “officers” in a constitutional sense, and

the decision in People v. Drish, 24 Ill.App.3d 225, 321 N.E.2d 179 (4th Dist. 1974), holding that

a member of the planning commission was a “public officer” within the meaning of the statutes.

A. [4.50] Civil Service Commissioners

Illinois Municipal Code §10-1-1 prohibits more than two civil service commissioners from

the same political party and provides that commissioners cannot hold other lucrative office or

employment under the United States, State of Illinois, or any municipal corporation or political

division thereof. Commissioners are officers. People ex rel. Jacobs v. Coffin, 282 Ill. 599, 119

N.E. 54 (1918).

B. [4.51] Fire and Police Commissioners

Illinois Municipal Code §10-2.1-3 has the same ban on political party membership and

holding other lucrative office as indicated in §4.50 above. Nor can commissioners be related to

any elected official of the municipality. Commissioners are officers. They can be removed only

for cause after hearing before the governing body of the municipality. Id.

C. [4.52] Plan Commissioners

Plan commissioners must reside within the municipality or within one and one-half miles of

the city limits but not in another municipality. Illinois Municipal Code §11-12-4.

D. [4.53] Zoning Board of Appeal Members

There are no statutory qualifications for membership on zoning boards of appeal. The

appointing authority may remove members for cause after a public hearing. Illinois Municipal

Code §11-13-3.

E. [4.54] Fair Housing or Human Relations Commissioners

There are no listed qualifications for membership on a fair housing or human relations

commission. Illinois Municipal Code §11-11.1-1.

F. [4.55] Electrical Commissioners

The qualifications for appointment to the “electrical inspection department” require technical

knowledge in the field. Illinois Municipal Code §11-37-2.

G. [4.56] Other Commissions and Commissioners

Additionally, statutes and national codes may be adopted by reference, and through such

codes other appeal boards can be created. There is no legal reason why a municipality may not

create ad hoc commissions to study, investigate, and report to the council on anything the council

wishes. Similarly, the council may create any standing advisory body it pleases.

XI. [4.57] DIFFERENCES IN OTHER FORMS OF GOVERNMENT

Although Article 3.1 of the Illinois Municipal Code sets forth the default provisions

governing municipal organization, municipal officers and employees may also be governed by

statutes addressing specific forms of municipal government, including commission (Article 4),

managerial (Article 5), and strong mayor (Article 6). The methods and procedures for adoption of

these forms of government are treated along with other related matters in Chapter 1 of this

handbook. Note that a home rule unit, following a referendum, may create additional or

alternative provisions at variance or even in conflict with state law. Clarke v. Village of Arlington

Heights, 57 Ill.2d 50, 309 N.E.2d 576 (1974). In contrast, a non-home rule unit cannot, even by

referendum, adopt a form of government not specified in the Code. League of Women Voters of

Peoria v. County of Peoria, 121 Ill.2d 236, 520 N.E.2d 626 (1987).

A. [4.58] Alternative Statutory Forms

The commission form addresses officers and employees in Illinois Municipal Code Article 4,

Divisions 3 (Election of Officers), 4 (Oaths and Bonds), 5 (Functions and Duties of Council and

Officers), 6 (Compensation of Officers), and 8 (Penalties).

The managerial form addresses officers and employees in Article 5, Divisions 2 (Election of

Officers) and 3 (Functions and Duties of Officers). Note, however, that former Division 4

(Compensation), has been repealed, and the topic is now addressed in Article 3.1.

The strong mayor form addresses officers and employees in Article 6, Divisions 3 (Election

of Officers), 4 (Functions and Duties of Mayor, Council and Officers), and 5 (Compensation).

The strong mayor form is basically a variation of the aldermanic form found in Code Article 3.1.

B. [4.59] Overlapping Regulations

The various governmental forms cannot be viewed in isolation. Each form, to one degree or

another, incorporates or relies on the provisions of Article 3.1 of the Illinois Municipal Code as

well as provisions in other statutory forms. By way of example, when a municipality operates

under the commission form and then adopts the managerial form, the commission form is not

necessarily abandoned; rather, the manager form is an overlay with various provisions. Articles

3.1, 4, and 5 must be considered in evaluating the powers and duties of officers and employees.

The provisions of Article 3.1 apply in the commission (Article 4) and managerial (Article 5)

forms except as otherwise provided in Article 4 or Article 5. Code §3.1-5-5. Likewise, in Article

4 (commission form) and Article 6 (strong mayor form), the provisions of Article 3.1 continue to

apply to all officers elected or appointed under these Articles unless otherwise provided or unless

there is a conflict between the provisions of these Articles and the provisions of Article 3.1, in

which case the provisions of Article 4 or Article 6 control. Code §§4-1-4, 6-1-2.

Code §5-1-2 provides that when the managerial form becomes effective in a municipality, the

municipality and its officers are “vested with all the rights, privileges, powers, and immunities

conferred by Article 3 or 4 [65 ILCS 5/4-1-1, et seq.], as the case may be, in force at the time

such city or village adopted this Article 5, including the procedures for elections therein

described, the officers therein named and the duties and liabilities therein set forth, except as

modified by this Article 5.” Likewise, Code §5-1-3 provides that the rights, privileges, powers,

and immunities contained in Articles 3 and 4 that may continue to be applicable as provided in

Code §5-1-2 are modified by the provisions in Article 5.

C. Structure

1. [4.60] Commission Form

In the commission form, there are no wards, and a mayor and four commissioners are elected

at large and constitute the “Council.” Illinois Municipal Code §§4-3-1 through 4-3-3. This atlarge

structure has been challenged on a number of occasions, with opponents claiming that it is

unconstitutional and a violation of equal protection when it results in a dilution of minority voting

strength. Kendrick v. Walder, 527 F.2d 44 (7th Cir. 1975). See Wright v. City of Danville, 174

Ill.2d 391, 675 N.E.2d 110, 221 Ill.Dec. 203 (1996), for an interesting example of ethical and

criminal pitfalls in negotiating a settlement of such litigation in a manner that preserves benefits

or positions of incumbent commissioners and attorneys.

By referendum, candidates for commissioner may be required to run for a specific office.

Code §4-3-19. The procedures for such a referendum are set forth in that section. The voters in

such a municipality may, by referendum, reverse the process under Code §4-3-20. In the

meantime, the commissioners may not thwart the desire of the voters by realigning subdepartments.

Fischer v. Brombolich, 207 Ill.App.3d 1053, 566 N.E.2d 785, 152 Ill.Dec. 908 (5th

Dist. 1991). Council members serve four-year terms. If a vacancy occurs, the remaining members

are to appoint a replacement within 30 days for the balance of the unexpired term or until the

vacancy is filled as provided in Code §3.1-10-50. Code §4-3-4. Nomination and election of

candidates for council are covered in Code §§4-3-5 through 4-3-17. All employees and officers

are to be elected or appointed “with reference to their qualifications and fitness and for the good

of the public service, and without reference to their political or religious faith or party

affiliations.” Code §4-3-18.

An oath (Code §4-4-1) and a bond (Code §4-4-2) similar to that mandated under Code §3.1-

10-30 are required. The amount of the bond is to be set by ordinance and, for the mayor and

commissioners, shall be not less than $3,000. These bonds must be filed with, recorded, and

preserved by the county clerk of the specified county. The treasurer and such other officers as the

council may designate by ordinance must execute bonds with security to be approved by the

council, payable to the municipality in the penal sums as directed by ordinance, conditioned for

the faithful performance of the duties of office and the payment of all money received by the

officer according to law and ordinance. Those bonds are to be filed with the clerk. The treasurer’s

bond shall be in an amount of dollars not less than the greater of $50,000 or three times the last

federal census population or any subsequent census figure used for motor fuel tax purposes. The

clerk’s bond shall be filed with the treasurer. Code §4-4-2.

A number of conflict of interest and ethics rules apply specifically to the commission form.

Code §§4-8-2 through 4-8-4. In particular, promising to use or not use official powers to induce a

person to support a candidate, providing campaign services to or voting for a candidate in

exchange for “money, treats, or other consideration” constitutes a misdemeanor. Code §4-8-4.

Code §4-8-5 also makes it a Class C misdemeanor for any officer or employee under Article 4 to

“in any manner [contribute] money, labor, or other valuable thing to any person for election

purposes.” This provision is of doubtful validity in light of court rulings and laws that protect the

right of public employees to engage in the political process. See Rutan v. Republican Party of

Illinois, 497 U.S. 62, 111 L.Ed.2d 52, 110 S.Ct. 2729 (1990); Elrod v. Burns, 427 U.S. 347, 49

L.Ed.2d 547, 96 S.Ct. 2673 (1976); Code §§10-1-27.1, 10-2.1-5.1; the Local Government

Employees Political Rights Act, 50 ILCS 135/1, et seq. Code §4-8-6 prohibits pecuniary interests

in contracts. This is similar, but not identical, to other conflict of interest laws regulating local

government employees and officials. See Code §3.1-55-10, governing municipal officers and

employees generally, and 50 ILCS 105/3, governing public officers and employees in general.

2. [4.61] Managerial Form

The managerial form may involve election from wards or districts or election at large. Illinois

Municipal Code §5-2-1 outlines the mechanics for electing aldermen under the various single or

multimember ward arrangements available to managerial municipalities. Code §§5-2-2 through 5-

2-8 govern cities with a ward system, and Code §5-2-11 covers villages with a ward system.

Code §5-2-2 specifies the total number of council members to be elected, a figure that is

computed on the basis of population, with two council members elected from each ward. This

section also requires redistricting if any census specified in Code §5-2-5 shows that the city has a

population sufficient to increase the number of council members. The mechanics of this

redistricting process are detailed in Code §§5-2-4 through 5-2-7. By default, there would be two

aldermen for each ward. Code §5-2-4.

Code §5-2-3 authorizes a municipality of fewer than 100,000 inhabitants to reduce by

referendum the number of aldermen to one for each ward. Code §5-2-3.1 authorizes a

municipality that has elected to reduce the number of aldermen to one for each ward to stagger

the terms of aldermen so that, as nearly as possible, one half of the aldermen are elected every

two years. This option must also be approved by referendum. The tenure of those elected in this

manner is described in Code §5-2-8. Vacancies in the office of alderman shall be filled either by

appointment or at the next scheduled election in the manner provided by Code §§3.1-10-50 and

3.1-10-55.

Code §5-2-11 specifies the size of the board of trustees and the ward arrangement for villages

operating under the managerial form of municipal government.

Code §§5-2-12, 5-2-13, and 5-2-15 through 5-2-17 govern municipalities that do not elect to

choose aldermen from wards or districts. Code §5-2-12 provides that, in such cases, the council is

elected at large with staggered four-year terms so that part of the council is elected every two

years. The number of council members is based on the population and increases as the population

grows. However, a village that adopts the managerial form that, immediately before such

adoption, was governed by the provisions of Article 4 (commission form) continues to elect a

mayor and four commissioners in accordance with the provisions of Code §§4-3-5 through 4-3-

18. Code §5-2-12(i).

By referendum, a municipality may change to election by wards or districts (Code §5-2-18),

election at large (Code §5-2-18.1), or election part by wards or districts and part at large (Code

§5-2-18.2). Procedures for such elections are set forth in Code §§5-2-18.3 through 5-2-18.8.

Code §5-2-19 applies to the election of the city clerk and city treasurer in municipalities that

do not retain a ward system. It also provides that in municipalities not exceeding 100,000

inhabitants that elect the mayor and council at large (Code §5-2-12) or as provided in Code §§5-

2-18 through 5-2-18.8, the council may by ordinance provide that the clerk or treasurer or both be

appointed by the mayor with the approval of the council. If appointed, their terms of office,

duties, compensation, and amount of bond required are the same as if they were elected.

3. [4.62] Strong Mayor Form

Division 3 of Article 6 of the Illinois Municipal Code provides for the election of officers and

division of a municipality into wards. Those municipalities operating under Articles 4 and 5 that

elect council members at large or partly from wards and partly from districts are the only ones

affected by this ward division requirement. However, Code §6-3-3 differs from Code §3.1-20-10

in the number of aldermen required for different populations.

D. Powers, Duties, and Compensation

1. [4.63] Commission Form

The commission form is unique in that each of the elected commissioners is assigned the

supervision of one or more municipal departments. Beard v. Board of Fire & Police

Commissioners of City of Cairo, 21 Ill.App.3d 404, 315 N.E.2d 319 (5th Dist. 1974). Unlike

other statutory forms in which a mayor or manager is the executive head of the operating

departments, in the commission form each commissioner retains “superintendent” status over the

assigned department and is vested with a measure of discretionary authority in supervision of the

activities of his or her respective department. Marshall v. City of Chicago Heights, 59 Ill.App.3d

986, 376 N.E.2d 657, 17 Ill.Dec. 511 (1st Dist. 1978). The Illinois Municipal Code does not

specify all the powers and duties of commissioners; however, Code §4-5-2 provides generally

that the council and its members shall have all executive, administrative, and legislative powers

and duties previously held by executive, legislative, and administrative municipal officers of

properly incorporated municipalities. Beard, supra.

The mayor acts as president of the council and presides at its meetings. The mayor also

supervises all departments and reports to the council for its action on all matters requiring

attention in any department. The commissioner of accounts and finances acts as vice president of

the council and performs the duties of the mayor in his or her absence or inability to act or in case

of vacancy. Code §4-5-1.

The executive, administrative, and legislative powers and duties are combined in the council

and its members under the commission form except for the board of local improvements. The

executive and administrative powers and duties are distributed among five departments: (a) public

affairs; (b) accounts and finances; (c) public health and safety; (d) streets and public

improvements; and (e) public property. Code §4-5-2.

The council is required by ordinance to determine the powers and duties assigned to each

department. It also prescribes the powers and duties of officers and employees and assigns them

to one or more of the five departments. The council by ordinance may require an officer or

employee to perform duties in two or more departments and may make rules and regulations

needed for the efficient and economical conduct of the business of the municipality. Id. Except

when candidates for commissioner are required to run for specific office, the council at its first

regular meeting after the election determines by majority vote which commissioner should be

assigned to each department except the department of public affairs, which is assigned to the

mayor by law. Code §4-5-3. Each commissioner is the superintendent of his or her department,

and this designation of commissioners may be changed by the council at any time “it appears that

the public service would be benefited thereby.” Id.

Code §4-5-4 provides for the appointment, by a majority vote of the council, of the various

necessary officers for the municipality, including a city clerk, corporation counsel, city attorney,

assistant city attorney, treasurer, library trustees, commissioner of streets and public

improvements, superintendent of streets, superintendent of special assessments, superintendent of

sewers, city engineer, and any other necessary officers. The commissioner of streets and public

improvements is ex officio commissioner of public works and a member of the board of local

improvements. The municipality may provide by ordinance for the commissioner of streets and

public improvements to appoint the superintendent of streets. In cities with a population over

50,000 that have adopted civil service (Code §10-1-1, et seq.), the police department is assigned

to the department of public affairs under the mayor, as is the legal department, whose members,

including the corporation counsel, city attorney, and assistant city attorneys, are appointed by the

mayor. Code §4-5-4.

Code §4-5-5 provides that the council may appoint and discharge the heads of all principal

departments subordinate to the five departments provided above. It may, however, by ordinance,

authorize the commissioner of each department to appoint and discharge the heads of all principal

departments subordinate to his or her department.

In cities that have not adopted or are not operating under the provisions of the civil service

division (Code §10-1-1, et seq.) or the board of fire and police commissioners division (Code

§10-2.1-1, et seq.), all officers, employees, and members of departments except those elected or

appointed as provided by Code §§4-5-3 through 4-5-5 shall be appointed by the commissioner of

the department to which they are respectively assigned and may be discharged by the

commissioner. Code §4-5-6. This duty is nondelegable so that removing commissioner authority

and then delegating it to a nonelected subordinate would constitute a change in the form of

government for which a referendum is required. Marshall, supra. When civil service or the board

of fire and police commissioners has been adopted, it will control classified employees. Code §4-

5-7.

The council may, by ordinance, create, fill, and discontinue offices and employment other

than those prescribed in Article 4. Code §4-5-8. Likewise, by a majority vote of the council, any

officer or employee who has been elected by the council may be removed from office at any time

unless otherwise provided by law or by Article 4. Code §4-5-9.

Code §4-5-10 gives the council the right to regulate and inspect all plants and machinery with

a franchise from the city to provide gas or electric service.

Code §4-5-11 requires bidding on contracts for public improvements for more than $10,000

unless approved by a four-fifths vote of the council or unless four fifths of the council vote to do

the work in-house. Waste disposal contracts are not “public improvements” governed by this

section. Western Lion Ltd. v. City of Mattoon, 123 Ill.App.3d 381, 462 N.E.2d 891, 78 Ill.Dec.

772 (4th Dist. 1984).

Code §4-5-12 establishes semimonthly meetings, defines a quorum (three members), states

the necessary number of votes to approve a matter (three), and gives the mayor the right to vote

but not to veto. Code §4-5-13 requires ordinances providing for public improvements, contracts,

licenses, or franchises to be available at the clerk’s office for public inspection one week before

final passage. Code §4-5-16 requires municipalities to print periodic itemization of receipts and

expenditures and summaries of their proceedings. Code §4-5-22 provides for duties of the

treasurer.

The mayor and each commissioner are to have an office at the municipal building and

“devote such time to the duties of their respective offices as a faithful discharge thereof may

require.” Code §4-6-1. The total and only compensation for the mayor and commissioners shall

be their annual salaries, which are fixed by the council before the elections, and no increase or

decrease in salary can take effect during the term for which the official is elected. Id. All other

officers and employees receive such compensation as may be fixed by the council, payable

monthly or at such shorter periods as the council determines. Code §4-6-2.

2. [4.64] Managerial Form

Care should be taken when considering the power and duties of officers and employees in a

municipality with a “manager” to determine the manner in which the manager was established.

Some municipalities adopt, by ordinance, administrative provisions that mirror the manager form

and may even use the terminology “manager.” However, this is not a statutory manager form

government, which can be established only by referendum. Ordinance-established manager

provisions can be altered or repealed by the council at any time. In contrast, statutory manager

form governments can be altered or repealed only by a subsequent referendum.

The mayor has the right to vote on all questions coming before the council but does not have

any veto in municipalities that elect the council wholly or partially at large and in any

municipality that previously operated under Article 4 of the Illinois Municipal Code (commission

form). Code §5-3-1. If the ward or district system is retained, the mayor or president has only a

limited right to vote (Code §5-3-5) but has veto power that may be overridden on a two-thirds

vote. Code §§5-3-1 through 5-3-3. Code §5-3-4 prohibits reconsidering or rescinding any vote of

the council at a special meeting unless the special meeting was attended by as many members of

the council as were present when the vote was taken. Appointments to boards and commissions

are as provided by law, except for the provisions of Articles 3 and 4. Code §5-3-1. Generally, this

power of appointment lies with the mayor or president, although sometimes the legislative body

may advise and consent. The council cannot divert to itself mayoral appointment powers. Op.

Att’y Gen. (Ill.) No. 97-028; Pechous v. Slawko, 64 Ill.2d 576, 357 N.E.2d 1144, 2 Ill.Dec. 701

(1976).

In managerial form municipalities that use a ward or district system, the mayor does not vote

on any ordinance, resolution, or motion except (a) in a tie, (b) when one half of the aldermen then

holding office have voted favorably, or (c) when more than a majority vote is required by the

Code to pass an ordinance, resolution, or motion. In municipalities operating under Articles 4 and

5, and in all municipalities electing aldermen or council members at large, the mayor votes on all

questions. Code §5-3-5.

A distinctive feature of an Article 5 government is that the day-to-day executive and

administrative powers of the municipality are vested in a manager appointed by the legislative

body. As such, the powers of the council or board are purely legislative except as otherwise

provided in other sections of the Code except Articles 3.1 and 4. Code §5-3-6.

Code §5-3-7 contains the basic principles of the managerial form and defines the powers and

functions of the manager. The manager is appointed by the council, is the administrative head of

the municipal government, and is responsible for the efficient administration of all departments.

The manager is appointed without regard to his or her political beliefs and need not be a resident

of the municipality. The manager may be removed from office by a majority vote of the council

at any time. The manager’s duties and powers are set forth in this section. Those pertinent to this

chapter include the duty or power to (a) appoint and remove all directors of departments; (b)

exercise control of all departments and divisions thereof created in Article 5 or that may be

created by the council (An interesting case showing the extent of this power is Hunt v. City of

Peoria, 30 Ill.2d 230, 195 N.E.2d 719 (1964), in which the Illinois Supreme Court sustained the

validity of a City of Peoria ordinance authorizing the city manager to assign police officers to

perform duties in the fire department.); (c) appoint and remove all officers not required to be

elected by Article 3 if the municipality was subject to the aldermanic form at the time of adoption

of Article 5, provided, however, that Code §5-3-1 allows the mayor or president to continue to

appoint all members of boards, commissions, or other agencies if any other acts or articles of the

Code provide for such appointment; and (d) prepare the annual budget, unless the provisions of

Code §§8-2-9.1 through 8-2-9.9 regarding a budget officer have been adopted.

The courts have been sensitive to maintaining the line between the powers and duties of the

corporate authorities and the powers and duties of city managers. On the one hand, the courts

have prevented city councils from encroaching on the prerogatives of city managers. Pechous,

supra. Pechous invalidated the attempts by the councils of several managerial municipalities to

take over and exercise powers and duties conferred by statute on a city manager. The opinion

specifically addressed the position of village attorney and, interestingly, the position of liquor

commissioner. In both cases, the Illinois Supreme Court invalidated such action because it

constituted an effort on the part of the members of the board of trustees of a village operating

under the village manager plan to interject themselves into matters of administration by taking

over responsibilities statutorily conferred on the municipal manager. On the other hand, the courts

have shown the intent to keep the city manager from overstepping his or her bounds. In Hogan v.

City of Centralia, 71 Ill.App.3d 1004, 390 N.E.2d 595, 28 Ill.Dec. 428 (5th Dist. 1979), the court

held void the contract executed by the city manager with a chief of police by which the manager

agreed to pay the chief as salary more money than was appropriated in the municipal budget and

for a period in excess of one year. The court determined that appropriations for salaries were

exclusively a prerogative of the corporate authorities, who could not be bound by the city

manager for more money than was appropriated in the budget. Likewise, the manager cannot bind

the municipality on contracts that are beyond his or her powers. Bank of Pawnee v. Joslin, 166

Ill.App.3d 927, 521 N.E.2d 1177, 118 Ill.Dec. 484 (4th Dist. 1988).

Code §5-3-8 provides that there shall be such departments as the council may prescribe by

ordinance, which shall be under the general supervision and administrative control of the

manager. Oaths and, except for the mayor, aldermen, and council, bonds are required of all

officers as provided in Code §5-3-9, which also includes the form and filing requirements of the

oath and bond, including the bond amount.

Once a referendum is approved authorizing a managerial form of government, an

implementation ordinance is required as described in Code §5-3-10. It is to be passed at the first

meeting of the council after adoption, and the requirements for the ordinance are specifically set

forth. The powers and duties of the manager, the scope of each department and division, powers

and duties of officers and employees, fixing salaries, and providing for audits independent of the

manager are subjects of this ordinance. By this ordinance, the council may assign appointive

officers and employees to one or more departments or require them to perform duties in two or

more departments and also make rules and regulations for the conduct of the business of the city.

Code §5-3-11 deals with the board of local improvements. By ordinance the council shall

provide for a board of no fewer than three and no more than five members appointed by the

mayor with the consent of the council. The members may be appointed from persons holding

other offices or positions in the city, including council or board members. In re Elgin Special

Assessment, 70 Ill.App.3d 292, 388 N.E.2d 470, 26 Ill.Dec. 755 (2d Dist. 1979). If other

provision is made, it is not necessary to have the offices of commissioner of public works,

superintendent of streets, superintendent of special assessments, superintendent of sewers, city

engineer, public engineer, or chief clerk of special assessments. A chief clerk of special

assessments is required for cities of 500,000 inhabitants or more. Code §9-2-8.

Code §5-3-12 applies to cities of 100,000 – 500,000 inhabitants and provides that the clerk

and treasurer, severally, shall appoint the clerical help and subordinates in their respective offices

and are responsible for the fidelity of their appointees. A deputy clerk is appointed as prescribed

in Code §3.1-30-10.

Code §5-4-1, et seq., has been repealed. Compensation for an elected officer is now governed

by Article 3.1.

3. [4.65] Strong Mayor Form

Illinois Municipal Code §6-4-1, et seq., provides for the functions and duties of the mayor,

council, and officers in the strong mayor form of government. Code §6-4-7 defines the powers

and duties of the mayor, which are similar to those of the city manager provided in Code §5-3-7.

The board of local improvements is composed of the mayor and not fewer than two nor more than

four members appointed by the mayor. The consent of the council is not required. Code §6-4-11.

Likewise, the mayor appoints the members of the board of fire and police commissioners, and

consent of the council is not required. Code §6-4-14.

In municipalities of 50,000 or more inhabitants, the mayor shall appoint one or more

administrative assistants, as well as a budget and finance director, whose functions and duties are

set forth in Code §§6-4-12 and 6-4-13.

Code §6-5-1, et seq., provides for compensation of municipal officials.

XII. PENSIONS

A. [4.66] Overview

The statutory law relating to the creation, maintenance, and administration of retirement

systems, pension funds, annuity and benefit funds, and related pension and benefit systems for

persons performing services for the State of Illinois and its political subdivisions is codified in the

Illinois Pension Code (Pension Code), 40 ILCS 5/1-101, et seq. The Pension Code is detailed and

complex, with 17 different pension systems. Although the provisions are, at times, consistent

among these various systems, more often there are variations, sometimes subtle but often radical,

between one system and another.

Sections 4.67 – 4.96 highlight aspects of those pension systems found in municipalities with

populations of less than 500,000. Except as otherwise stated, any reference in the following

sections refers to the entities and systems covered by Article 3 (Police Pension Fund —

Municipalities 500,000 and Under), Article 4 (Firefighters’ Pension Fund — Municipalities

500,000 and Under), and Article 7 (Illinois Municipal Retirement Fund). To the extent these

pension funds are affected, this chapter also examines the provisions of Article 1 (General

Provisions), Article 1A (Regulation of Public Pension Funds), Article 21 (Social Security

Enabling Act), and Article 24 (Public Employees’ Deferred Compensation). This chapter does not

address pension systems applicable only to municipalities in excess of 500,000 inhabitants or

applicable to non-municipal or statewide systems. See Pension Code Articles 2, 5, 6, and 8 – 18

for laws regarding such systems.

Additional information regarding police or fire pensions may be obtained by contacting

Illinois Department of Financial and Professional Regulation

Division of Insurance

320 W. Washington St.

Springfield, IL 62767-0001

Main Number: 217/782-7542

Toll Free: 800/207-6958

Fax: 217/524-5978

E-mail: idoi_pension@ins.state.il.us

Web site: www.idfpr.com/doi/pension/pension.asp

Additional information on the Illinois Municipal Retirement Fund can be obtained from the

participating municipalities’ authorized agents or by contacting

Illinois Municipal Retirement Fund (IMRF)

2211 York Rd.

Suite 500

Oak Brook, IL 60523-2337

800/ASK-IMRF (800/275-4673)

Fax: 630/368-5397

Web site: www.imrf.org

B. [4.67] Police Officers’ and Firefighters’ Pension Funds

Articles 3 and 4 of the Pension Code are comparable in organizational framework, as well as

substantive content, and are therefore summarized together.

The provisions of the Pension Code are to be construed liberally in favor of those to be

benefited. Iwanski v. Streamwood Police Pension Board, 232 Ill.App.3d 180, 596 N.E.2d 691,

173 Ill.Dec. 67 (1st Dist. 1992). Membership in a pension system of any local government unit in

the state is an enforceable contractual relationship, the benefits of which cannot be diminished or

impaired. DiFalco v. Board of Trustees of Firemen’s Pension Fund of Wood Dale Fire Protection

District No. One, 122 Ill.2d 22, 521 N.E.2d 923, 118 Ill.Dec. 446 (1988); ILL.CONST. art. XIII,

§5. An employee’s rights in the system vest, either at the time the employee enters the system,

e.g., making contributions, or in 1971, when the 1970 Illinois Constitution became effective,

whichever is later. Schroeder v. Morton Grove Police Pension Board, 219 Ill.App.3d 697, 579

N.E.2d 997, 162 Ill.Dec. 183 (1st Dist. 1991). Disputes regarding any alleged diminishment are

governed by the terms of the Pension Code at the time the employee became a member of the

pension system. Kerner v. State Employees’ Retirement System of Illinois, 72 Ill.2d 507, 382

N.E.2d 243, 21 Ill.Dec. 879 (1978), cert. denied, 99 S.Ct. 2032 (1979). Thus, changes in the

Pension Code that diminish a participant’s rights may not be applicable to members whose rights

vested prior to the effective date of the change.

1. [4.68] Fund Creation

Municipalities with a population of at least 5,000 but not more than 500,000 inhabitants have

a statutory obligation to create police and firefighters’ pension funds. Pension Code §§3-101

through 3-103, 4-101 through 4-103. Municipalities of fewer than 5,000 inhabitants may establish

such funds for the benefit of their police and fire personnel upon petition to the corporate

authority and subsequent approval by the electorate in a regular or special municipal election.

Pension Code §§3-103 and 4-103. The respective petition procedures and ballot forms are

enumerated in Pension Code §§3-145, 4-141.

Article 1 of the Pension Code defines “fiduciary” and other terms, sets out rules of

construction, and makes general provisions applicable to the remaining articles of the Code. For

purposes of the Pension Code, the legislative body of the employing jurisdictions is not

considered a “fund fiduciary.” Board of Trustees of Police Pension Fund of City of Evanston v.

City of Evanston, 281 Ill.App.3d 1047, 667 N.E.2d 657, 217 Ill.Dec. 568 (1st Dist. 1996).

2. Board of Trustees

a. [4.69] Membership

Each municipality’s police and firefighters’ pension funds are administered by local

governing boards. The police pension board of trustees is made up of five members: two

appointed by the mayor, two elected from the police force by the active members thereof, and one

elected from the beneficiaries of the fund. Pension Code §3-128. Up until April 2006, the

firefighters’ pension board consisted of seven members who were elected, appointed, or ex

officio. However, effective April 17, 2006, the firefighters’ pension board of trustees was revised

to reduce the number to five, with two appointed by the mayor, two being active duty participants

elected by the other active duty participants of the pension fund, and one being a person on

retirement who is elected by the other pensioners. Pension Code §4-121.

b. [4.70] Powers and Duties

The boards of trustees of both the police and firefighters’ pension funds have the powers,

duties, and responsibilities

1. to control and manage the pension fund (Pension Code, §§3-132, 4-123);

2. to accept donations (Pension Code §§3-140.1, 4-129.1);

3. to establish reserves sufficient to meet actuarial requirements of the fund (Pension Code

§§3-127, 4-120) (If the police pension fund is not fully funded, the board’s annual report

to the corporate authorities must designate the amount needed annually to achieve full

funding within 40 years from July 1, 1993. Pension Code §3-127.);

4. to hear and determine applications and order payments (Pension Code §§3-133, 4-125);

5. to examine periodically disability pension claimants or recipients (Pension Code §§3-

115, 4-112);

6. to make rules (Pension Code §§3-140, 4-126);

7. to keep records (Pension Code §§3-139, 4-129);

8. to pay expenses (Pension Code §§3-138, 4-127);

9. to draw and invest funds in accordance with Pension Code §§1-113.1 through 1-113.10

(Pension Code §§3-135, 4-128);

10. to report annually to the council or board of trustees on the condition of the funds,

specifying the assets on hand, estimated receipts and expenditures, and amounts required

to meet annual requirements of the fund (Pension Code §§3-143, 4-134);

11. to serve without compensation (Pension Code §§3-128, 4-121); and

12. to subpoena witnesses (Pension Code §§3-136, 4-123.1).

The police pension fund board of trustees also has the specific statutory authorization and/or

obligation to (1) annually, at the close of the municipality’s fiscal year, submit to the council or

board of trustees a list of persons entitled to payments from the fund (Pension Code §3-134); and

(2) appoint a clerk (Pension Code §3-137).

3. [4.71] Eligibility for Fund Membership

Any full-time police officer or firefighter, including one on probation, appointed to a position

in the police or fire department who makes application for fund membership within three months

of original appointment or reappointment is a member of the police or firefighters’ pension fund.

Pension Code §§3-106, 4-107. These application deadlines, as well as the payment of

contributions throughout service as a covered employee, are mandatory if the participant intends

to claim pension benefits. Edwards v. Board of Trustees of Police Pension Fund of City of

Marion, 61 Ill.2d 330, 335 N.E.2d 440 (1975). “Firefighter” includes any person employed in the

municipality’s fire service as a firefighter, fire engineer, marine engineer, fire pilot, bomb

technician, or scuba diver when such person’s duties also include those of a firefighter as

classified by the civil service commission or board of fire and police commissioners. Pension

Code §4-106. Previously, an applicant to the pension fund was required to pass a physical;

however, this provision has been removed. Mere qualification as a police officer or firefighter,

which presumably would include a determination that the person could perform the essential

functions of the job, is now sufficient.

4. [4.72] Financing of Pension Funds

The police and firefighters’ pension funds are both financed by employee and municipal

contributions. Current employee contribution rates for both firefighters and police officers are

about ten percent of salary. Pension Code §§ 3-125.1, 4-118.1. The definition of “salary” includes

longevity pay but excludes overtime pay, holiday pay, bonus pay, merit pay, and other cash

benefits if over and above the salary established in the annual appropriation ordinance. Pension

Code §§3-125.1, 4-118.1. However, the revenue generated by some municipalities’ “merit plans”

has been judicially declared to fall within the statutory term “salary,” notwithstanding the specific

merit pay exclusion. Board of Trustees of Policemen’s Pension Fund of Village of Oak Brook v.

Department of Insurance, 42 Ill.App.3d 155, 356 N.E.2d 171, 1 Ill.Dec. 171 (2d Dist. 1976).

Pension Code §§3-125.2 and 4-118.2 permit employers to pay part or all of a police officer’s or

firefighter’s contribution to the pension fund pursuant to Internal Revenue Code §414(h). The

Pension Code provides, however, that until the courts determine or the Internal Revenue Service

agrees that such contributions are not includible in the employee’s gross income, the employer

shall withhold on the assumption that the amount of the employee’s contribution paid by the

employer is taxable as income.

The legislative bodies of municipalities with police officers’ or firefighters’ pension funds are

obligated to levy a tax at a rate that, after adding employee contributions, donations, and other

miscellaneous revenues, is sufficient to (a) meet the annual requirements of the fund; (b) establish

the required reserves; (c) maintain the actuarial soundness of the fund; and (d) in the case of the

firefighters’ pension fund, amortize unfunded accrued liability. Pension Code §§3-125, 4-118. It

is unlikely, however, that Illinois pension laws grant police or fire personnel a contractual right to

require or compel such levels of funding. People ex rel. Illinois Federation of Teachers v.

Lindberg, 60 Ill.2d 266, 326 N.E.2d 749, cert. denied, 96 S.Ct. 67 (1975); Board of Trustees of

Police Pension Fund of Rockford v. City of Rockford, 96 Ill.App.3d 102, 420 N.E.2d 1126, 51

Ill.Dec. 568 (2d Dist. 1981).

The municipality is not required to levy the amount estimated by the board to be required to

fund the pension system but is required to follow the Pension Code in calculating the amount of

its levy to meet its obligations. Board of Trustees of Police Pension Fund of City of Evanston v.

City of Evanston, 281 Ill.App.3d 1047, 667 N.E.2d 657, 217 Ill.Dec. 568 (1st Dist. 1996).

5. [4.73] Benefits

Since virtually every session of the General Assembly changes benefits and levels of benefits,

reference to the latest available statutory information is highly recommended. Because these

change so frequently, detailed recitation of the current levels of benefits provides only a snapshot.

Although the details are complex and fluid, the fundamental structure of pension benefits is

straightforward. There are basically two types of pensions: retirement and disability. Disability

pensions can likewise be divided into two categories: line of duty and non-line of duty. In

addition to these pensions, there are also survivor benefits for the spouse or child of a deceased

pensioner. Sections 4.74 – 4.76 below explore the basic benefit options.

a. [4.74] Retirement Pensions

Retirement pensions are provided in Pension Code §§3-111 (police) and 4-109 (firefighters).

Although similar, currently these statutes are not the same. Police officers or firefighters at or

above age 50 with 20 years of creditable service are entitled to a retirement pension equal to 50

percent of their salary at retirement (removal base salary). This 50-percent level may be increased

up to 75 percent for additional years of service in excess of 20 years. Police officers and

firefighters with less than 20 years of creditable service are entitled to a reduced pension. The

minimum pension for police officers with 20 or more years of creditable service is $400 per

month. Pension Code §3-111. The minimum retirement pension payable to a firefighter with 20

or more years of creditable service, the minimum disability pension payable under §4-110, §4-

110.1, or §4-111, and the minimum surviving spouse’s pension is $1,060.90 per month beginning

July 1, 2005; $1,092.73 per month beginning July 1, 2006; $1,125.51 per month beginning July 1,

2007; and $1,159.27 per month beginning July 1, 2008. Pension Code §4-109.2.

Pension increases (cost-of-living increases) are set forth in Pension Code §§3-111.1 (police)

and 4-109.1 (firefighters). Retired police officers and firefighters are entitled to have their

pensions increased by an additional three percent on the first of the month after the first

anniversary of retirement or after reaching age 60, whichever occurs later, and are entitled to an

additional three-percent increase per year each January thereafter. The benefit also applies to

persons earlier retired on disability. Police officers and firefighters retiring after January 1, 1986,

are entitled to these increases at age 55. Police officers and firefighters retiring before July 1,

1971, with 20 or more years of creditable service, are entitled to have their pensions increased by

three percent for each year the individual was in receipt of pension payments, effective in January

after reaching age 65 or in January 1972, whichever occurs later, and an additional three percent

each January thereafter.

b. [4.75] Disability Pensions

Disability pensions at a rate of 65 percent of removal base salary (salary at the time of

suspension of duty or retirement) for duty-related disabilities (including heart attacks) are

available to members of the police pension fund. Pension Code §3-114.1. Non-duty disability

pensions in the amount of 50 percent of removal base salary are available to members of a police

pension fund. Pension Code §3-114.2.

Comparable on-duty and off-duty pensions are available to firefighters, but they require seven

years of creditable service to be eligible for non-duty disability pensions. Pension Code §4-111.

In addition, firefighters with five years of creditable service are entitled to occupational disease

disability benefits in an amount of 65 percent of removal base salary, dependent children’s

disability benefits for heart, lung, and respiratory tract diseases or disabilities, and any type of

cancer that may be caused by exposure to heat, radiation, or a known carcinogen. Pension Code

§4-110.1.

Police officers and firefighters who receive a disability pension and whose years of service

plus years on disability equal 20 or more may at any time after they reach age 50 convert their

disability pension to a retirement pension based on the salary attached to their rank at the time

they make the conversion. Pension Code §§3-116.1, 4-113.

Whether a member is disabled is a fact-based determination that must be made on a case-bycase

basis by a pension board in a quasi-judicial proceeding. Evidence to be considered includes

examinations of the member by three physicians selected by the board and such other evidence as

the board deems necessary. Pension Code §§3-115, 4-112. In Rizzo v. Board of Trustees of

Village of Evergreen Park Police Pension Fund, 338 Ill.App.3d 490, 788 N.E.2d 1196, 273

Ill.Dec. 320 (1st Dist. 2003), a police disability pension was denied because one of the three

physicians selected by the board to examine the officer did not certify that the officer had a

disability and, thus, the board could not award the officer a disability pension. At the same time,

only one medical opinion is needed to support the withdrawal of disability status. Trettenero v.

Police Pension Fund of City of Aurora, 333 Ill.App.3d 792, 776 N.E.2d 840, 267 Ill.Dec. 468 (2d

Dist. 2002).

In Dowrick v. Village of Downers Grove, 362 Ill.App.3d 512, 840 N.E.2d 785, 298 Ill.Dec.

672 (2d Dist. 2005), the pension board ruled that the plaintiff firefighter was not disabled.

Subsequently, the fire chief brought charges seeking the employee’s discharge on the ground that

the employee either could not or would not perform the duties of the position. The plaintiff was

discharged and brought an appeal arguing, among other things, that the rulings of the pension

board and board of fire and police commissioners (BOF&PC) were contradictory. The plaintiff

further argued that the ruling of the pension board, which came first, was controlling and binding

on the BOF&PC as regards the plaintiff’s ability to perform the duties of the position. The court

disagreed and ruled that each body evaluated the plaintiff using different standards and that the

BOF&PC was not bound by the pension board’s determination that the plaintiff was able to

function as a firefighter.

The Administrative Review Law, 735 ILCS 5/3-101, et seq., governs appeals from decisions

of the board, and thus this review is “on the record,” rather than de novo. Pension Code §§3-148,

4-139. As such, it is critical that an adequate record be made regarding whether a disability is

present and if so, whether the disability is duty related. In addition, adherence to the 35-day

deadline under 735 ILCS 5/3-103 for filing administrative review actions and joinder of

necessary parties is critical.

A disabled participant must show a physical or mental impairment that renders suspension or

retirement necessary. Pension Code §§3-114.1, 3-114.2, 4-110, 4-111; Daily v. Board of Trustees

of Police Pension Fund of Springfield, Illinois, 251 Ill.App.3d 119, 621 N.E.2d 986, 190 Ill.Dec.

533 (4th Dist. 1993). For firefighters, this includes any physical or mental disability that (1) can

be expected to result in death, (2) has lasted for a continuous period of not less than 12 months, or

(3) can be expected to last for a continuous period of not less than 12 months. Pension Code §4-

105b. “Disability” does not include medical conditions that can be remedied without significant

danger to life or health or extraordinary suffering and when medical opinion indicates that a

prescribed remedy offers a reasonable prospect for relief. Mulack v. Hickory Hills Police Pension

Board, 252 Ill.App.3d 1063, 625 N.E.2d 259, 192 Ill.Dec. 299 (1st Dist. 1993). See also Sutton v.

United Airlines, Inc., 527 U.S. 471, 144 L.Ed.2d 450, 119 S.Ct. 2139 (1999) (related to need to

utilize corrective measure and Americans with Disabilities Act).

A “duty-related” disability must arise from a “sickness, accident, or injury incurred in or

resulting from the performance of an act of duty.” Pension Code §4-110. See also Pension Code

§3-114.1. This is not the same as common law concepts of negligence and proximate cause.

Rather, the language of the Pension Code requires that the line-of-duty disability result from an

act of duty. Robbins v. Board of Trustees of Carbondale Police Pension Fund of City of

Carbondale, Illinois, 177 Ill.2d 533, 687 N.E.2d 39, 227 Ill.Dec. 116 (1997) A police officer who

suffers a heart attack as a result of the performance and discharge of police duty is deemed to

have been injured in the performance of an act of duty. Pension Code §3-114.3. General jobrelated

stress or dissatisfaction arising from an inability to handle general duties does not give rise

to a duty-related disability pension. Robbins, supra; Graves v. Pontiac Firefighters’ Pension

Board, 281 Ill.App.3d 508, 667 N.E.2d 136, 217 Ill.Dec. 343 (4th Dist. 1996). However, jobrelated

stress that reaches the level of a diagnosed psychological impairment could support a

duty-related disability application. Knight v. Village of Bartlett, 338 Ill.App.3d 892, 788 N.E.2d

205, 272 Ill.Dec. 901 (1st Dist. 2003); Village of Stickney v. Board of Trustees of Police Pension

Fund of Village of Stickney, 363 Ill.App.3d 58, 842 N.E.2d 180, 299 Ill.Dec. 441 (1st Dist. 2005).

Aggravation of a preexisting condition can support a line-of-duty pension. Kellan v. Board of

Trustees of Firemen’s Pension Fund of City of Park Ridge, 194 Ill.App.3d 573, 551 N.E.2d 264,

141 Ill.Dec. 271 (1st Dist. 1990); Scalise v. Board of Trustees of Westchester Firemen’s Pension

Fund, 264 Ill.App.3d 1029, 637 N.E.2d 1040, 202 Ill.Dec. 304 (1st Dist. 1993). Finally, there are

slightly different standards for evaluating a line-of-duty disability for police officers versus

firefighters, which may involve an accumulation of exposures. Jensen v. East Dundee Fire

Protection District Firefighters’ Pension Fund Board of Trustees, 362 Ill.App.3d 197, 839

N.E.2d 670, 298 Ill.Dec. 347 (2d Dist. 2005).

On occasion, the interests of the municipality may require that it actively participate in

pension board proceedings. Collateral issues can range from the impact on workers’

compensation actions and disciplinary proceedings to rights for continued health insurance. See

§4.93 below. The failure of a municipality to actively participate in pension board proceedings

may preclude judicial review to correct errors, even those of a ministerial nature. When a

department chief seeks to remove an officer for inability to perform his or her duties as a result of

a medical condition, this may run into conflict with a decision by the pension board that an officer

is not disabled. Although not a right, it is within the discretion of a pension board to permit the

employing unit of government to intervene. Village of Stickney v. Board of Trustees of Police

Pension Fund of Village of Stickney, 347 Ill.App.3d 845, 807 N.E.2d 1078, 283 Ill.Dec. 237 (1st

Dist. 2004).

Medical examination of a participant receiving a disability pension shall be made at least

once each year prior to attainment of age 50 in order to verify continuance of disability. No

examination shall be required after age 50. Pension Code §§3-115, 4-112.

c. [4.76] Survivor Benefits

Survivor benefits are set forth in Pension Code §§3-112, 4-114. Upon the death of a police

officer or firefighter receiving a pension, a surviving spouse or, if the spouse dies or remarries if

the remarriage terminates the surviving spouse’s eligibility, any unmarried children under age 18

or children regardless of age who are dependent or, if none, dependent parent or parents until

death, marriage, or remarriage are entitled to such pension benefits in equal shares. Pension Code

§§3-112, 4-114. A surviving spouse is also entitled to continue receipt of some disability

retirement benefits in the event the pensioner dies. Pension Code §§3-114.1, 3-114.2, 4-110, 4-

110.1. In addition, firefighters receiving a line-of-duty disability are entitled to an additional $20

per month for each unmarried child or dependent under the age of 18. Pension Code §4-110.

Effective January 1, 1998, the child’s disability pension is increased by one-half of three percent

of the amount of benefit multiplied by the number of months for which the benefit was payable;

this amount is increased by three percent each January 1 thereafter. Pension Code §4-109.1.

6. [4.77] Investments

Managing the pension fund assets is a significant role for the pension board. With certain

exceptions for larger entities/municipalities, a pension board may appoint the investment

managers as fiduciaries to manage the fund assets. The board may also allocate duties among its

members and designate others as fiduciaries to carry out specific fiduciary activities other than

the management of the assets of the retirement system or pension fund. Pension Code §1-109.1.

Investment activities for pension boards under Articles 3 and 4 are governed by Pension Code

§§1-113.1 through 1-113.12. These provisions were added in 1997 and set forth, in greater detail,

the powers, limits, and fiduciary duties of a pension board when investing fund assets.

The board is held to a fiduciary standard of managing investment funds “with the care, skill,

prudence, and diligence that a prudent person acting in like capacity and familiar with such

matters would use in the conduct of an enterprise of like character with like aims.” Pension Code

§1-113.1. An investment policy must be adopted and filed with the Division of Insurance.

Pension Code §1-113.6. To assist the board, an investment advisor may be appointed pursuant to

a written contract, which must be filed with the Division of Insurance. Pension Code §1-113.5.

Up to 35 percent of the fund assets may now be invested in mutual funds and, if an investment

advisor has been appointed, in common or preferred stocks. Pension Code §§1-113.3, 1-113.4.

At the same time Pension Code §§1-113.1 through 1-113.12 were being enacted granting

greater flexibility regarding investments, Article 1A was added to the Pension Code to establish

the Public Pension Division in the Division of Insurance and to set forth additional regulations of

public pension funds under Articles 3 and 4. In general, this is an effort to monitor the

performance of pension funds with their greater investment flexibility and, hopefully, to avoid

failures.

The Public Pension Division has broad authority to examine and investigate any pension

fund, which may include (a) an audit of financial transactions, investment policies, and

procedures; (b) an examination of books, records, documents, files, and other pertinent

memoranda relating to financial, statistical, and administrative operations; (c) a review of policies

and procedures maintained for the administration and operation of the pension fund; (d) a

determination of whether full effect is being given to the statutory provisions governing the

operation of the pension fund; (e) a determination of whether the administrative policies in force

are in accord with the purposes of the statutory provisions and effectively protect and preserve the

rights and equities of the participants; and (f) a determination of whether proper financial and

statistical records have been established and adequate documentary evidence is recorded and

maintained in support of the several types of annuity and benefit payments being made. Pension

Code §1A-104.

Witnesses and documents can be compelled by subpoena. Pension Code §1A-105. The Public

Pension Division is also directed to render “advisory services” to assist pension boards (Pension

Code §1A-106), automate its operations (Pension Code §1A-107), and provide an annual report

to the Governor and General Assembly setting forth the latest financial statements on the pension

funds operating in the state, a summary of the current provisions underlying these funds, and a

report on any changes that have occurred in these provisions since the date of the last such report

submitted by the Division (Pension Code §1A-108). Each fund is required to submit an annual

report within six months of the close of its fiscal year. The report is to include certain enumerated

items plus such other materials “as in the judgement of the [Public Pension] Division may be

necessary for a proper appraisal of the financial condition of the pension fund and the results of

its operations.” Pension Code §1A-109. The annual report is to include a complete actuarial

statement that, if not prepared by the Division of Insurance, is to be filed within nine months after

the close of the fiscal year. Pension Code §1A-111.

Each pension fund under Article 3 or Article 4 is required to pay an annual fee to the Division

of Insurance in the amount of 0.007 percent of the total assets of the fund, but not more than

$6,000. Pension Code §1A-112. In addition, fines may be imposed against a fund for failure to

timely file reports and actuarial statements or pay the annual fee. In addition, civil penalties may

be assessed, after notice and hearing, against any unit of government that is found by the director

to have violated the Pension Code. Pension Code §1A-113.

C. Illinois Municipal Retirement Fund

1. Creation and Administration

a. [4.78] Establishment

Unlike the locally created and administered police officers’ and firefighters’ pension funds,

the Illinois Municipal Retirement Fund (IMRF) is a statewide pension fund created by law under

Article 7 of the Illinois Pension Code, 40 ILCS 5/7-101, et seq. Various units of local

government, specifically including municipalities with a population over 5,000 but less than one

million that did not provide social security coverage for their employees at the time the

municipality exceeded a population of 5,000, are required to be fund participants. Pension Code

§7-132. Other municipalities may elect to participate in the fund by the adoption of an ordinance

or resolution electing to participate (id.) or by referendum (Pension Code §7-134).

Once a municipality elects to participate in the IMRF, it may not thereafter withdraw from

the fund. People ex rel. Schuwerk v. Illinois Municipal Retirement Fund, 6 Ill.2d 405, 128 N.E.2d

923 (1955); Illinois Municipal Retirement Fund v. City of Barry, 52 Ill.App.3d 644, 367 N.E.2d

1048, 10 Ill.Dec. 439 (4th Dist. 1977).

b. [4.79] Board of Trustees

The Illinois Municipal Retirement Fund is administered by an eight-member board of

trustees, including four executive trustees elected from the ranks of officials and department

heads of participating municipalities, three employee trustees elected from the ranks of other

employees, and one annuitant trustee elected from the persons receiving retirement benefits.

Pension Code §7-174. The procedure for election to the IMRF board of trustees is detailed in

Pension Code §7-175. The powers, duties, and responsibilities of the board are outlined in

Pension Code §§7-179 through 7-200. The board may retain an executive director and actuary to

assist it in the administration of the pension fund. Pension Code §§7-212, 7-213.

c. [4.80] Authorized Agent

Each participating municipality must appoint an authorized agent to serve as the principal

contact person between the Illinois Municipal Retirement Fund board, its administrative staff, and

the individual fund participants. The duties and responsibilities of the authorized agent are

detailed in Pension Code §7-135.

2. [4.81] Eligibility for Membership

“Employees” are defined in Pension Code §7-109 and generally include persons receiving

payment for personal services from funds of a municipality as well as persons considered

employees under the common law. Employees of municipal instrumentalities are considered

municipal employees for Illinois Municipal Retirement Fund and social security purposes.

Included in “participating instrumentalities” are municipal libraries, municipal hospitals,

municipal boards of election commissioners, municipal utilities, municipal health departments,

etc.

Except as otherwise noted, any employee of a participating municipality who is expected to

work for the municipality 600 hours or more in a 12-month period is required to be a member of

the IMRF. Pension Code §7-137. All employees meeting this eligibility requirement must

participate in the IMRF and may not choose not to participate. However, elected officials and city

hospital employees are not required to participate but may elect to participate if they meet the

requirements. Id. Police officers and firefighters in municipalities of 5,000 or more in population

(or in a municipality under 5,000 in population that has formed a police officers’ and/or

firefighters’ pension fund) are not eligible to participate in the IMRF even though they are

ineligible or have chosen not to participate in the police officers’ or firefighters’ pension fund.

Pension Code §7-109; Holmes v. Illinois Municipal Retirement Fund, 185 Ill.App.3d 282, 540

N.E.2d 1122, 133 Ill.Dec. 256 (2d Dist. 1989). However, a police chief or fire chief who is

ineligible to participate in the police officers’ or firefighters’ pension fund may participate in the

IMRF. Id.

3. [4.82] Financing

The Illinois Municipal Retirement Fund is financed principally by a combination of

municipal contributions (in an amount described in Pension Code §7-172), participating

employee contributions of three and three-fourths percent of the employee’s salary (Pension Code

§7-173), and earnings on investments (Pension Code §7-208). Each municipality is authorized to

levy a tax to generate the municipality’s IMRF contribution. Pension Code §7-171. The

contribution includes

a. employer’s social security tax;

b. a “premium” for death benefit coverage of the municipality’s employees;

c. a “premium” for disability benefit coverage of its employees;

d. an actuarially determined amount to fund the retirement costs for its employees; and

e. IMRF administrative costs.

The employer’s social security tax is forwarded to the United States Treasury. The amount

for death benefits is placed in the IMRF’s reserve for death benefits (Pension Code §7-206), and

the amount for disability benefits in the IMRF’s reserve for disability benefits (Pension Code §7-

205.1). Payments for those benefits and expenses are charged to the appropriate reserve. The

amount for retirement cost is deposited in the municipality reserve for the municipality. Pension

Code §7-204. When an employee retires, the cost of the retirement annuity in excess of the

employee’s own contribution and earnings thereon is charged to the employer’s municipality

reserve. Pension Code §7-205. Thus, each municipality pays the retirement costs for its own

employees.

Under Pension Code §7-172, an employer must pay part or all of an employee’s contribution

to the IMRF. If the IMRF board determines that there is an actuarial deficit in the account of any

municipality with respect to a person who has elected to participate, the board may adjust the

municipality’s contribution rate to make up the deficiency over a reasonable period of time as

determined by the board.

4. [4.83] Retirement Benefits

In general, Illinois Municipal Retirement Fund pension benefit levels depend on length of

service (credits and creditable service (Pension Code §7-139)) and earning level. Current IMRF

retirement annuity provisions include that participating employees with 8 or more years of

creditable service are entitled to a monthly retirement annuity in an amount equal to one and twothirds

percent per year for the first 15 years and two percent per year for all years of creditable

service in excess of 15, to a maximum of seventy-five percent of the final rate of earnings.

Pension Code §7-142. Retirement annuities are payable in the full amount at age 60. Beginning

January 1, 1984, such retirement annuities are increased three percent of the original annuity

amount each January 1. Id. Retirement annuities are suspended during periods of employment

with participating municipalities expected to exceed 600 hours per year. Pension Code §7-144.

IMRF retirement annuities are in addition to social security retirement benefits.

5. [4.84] Early Retirement Incentive Program

Effective June 27, 1997, a unit of local government may establish an early retirement

incentive program. Pension Code §7-141.1. Establishment of such a program is within the sole

discretion of the unit and is intended to provide long-term cost savings by encouraging long-term,

higher-paid employees to retire early. A unit of local government adopting a program of early

retirement incentives is “encouraged” to replace as few of the participating employees as possible

and to hire replacement employees for salaries totaling no more than 80 percent of the total

salaries formerly paid to the employees who participate in the early retirement program. To

initiate such an incentive program, the unit of government must adopt a resolution or ordinance

substantially in the form set forth in Pension Code §7-141.1. A person who retires under an early

retirement incentive program loses those incentives if he or she later accepts employment with

any Illinois Municipal Retirement Fund employer in a position for which participation in the

IMRF is required or is elected by the employee. The effective date of each employee’s retirement

under this early retirement program is set by the IMRF employer and must be no earlier than the

effective date of the program and no later than one year after such effective date. The employee

may require that the retirement date set by the employer be no later than the June 30 next

occurring after the effective date of the program and no earlier than the date on which the

employee qualifies for retirement.

To be eligible for the early retirement incentive under Pension Code §7-141.1, the employee

must

a. be a participating employee under the IMRF who, on the effective date of the program,

(1) is on active payroll status as an employee of a participating employer that has filed the

required ordinance or resolution with the board, (2) is on layoff status from such a

position with a right of reemployment or recall to service, (3) is on a leave of absence

from such a position, or (4) is on disability but has not been receiving benefits under

Pension Code §7-146 or §7-150 for a period of more than two years from the date of

application;

b. have never previously received a retirement annuity under Article 7 of the Pension Code

or under the Retirement Systems Reciprocal Act (see §§4.94 and 4.95 below) using

service credit established under Article 7;

c. file with the board within 60 days of the effective date of the program an application

requesting the benefits provided under Pension Code §7-141.1;

d. have at least 20 years of creditable service in the IMRF by the date of retirement, without

the use of any creditable service established under Pension Code §7-141.1;

e. have attained age 50 by the date of retirement, without the use of any age enhancement

received under Pension Code §7-141.1; and

f. be eligible to receive a retirement annuity under Article 7 by the date of retirement, for

which purpose the age enhancement and creditable service established under Pension

Code §7-141.1 may be considered.

An eligible person may add up to five years of creditable service under Pension Code §7-

141.1, and for each period of creditable service established under Pension Code §7-141.1, a

person shall have his or her age at retirement deemed enhanced by an equivalent period. For all

creditable service added under Pension Code §7-141.1, the member must pay to the IMRF an

employee contribution consisting of 4.5 percent of the member’s highest annual salary rate used

in the determination of the final rate of earnings for retirement annuity purposes for each year of

creditable service added. This amount is to be paid as a lump sum using accumulated paid leave

at retirement or, if no or inadequate funds are available from such accumulated leave, the

payment may be paid in 24 equal monthly installments.

An annuitant who has received any age enhancement or creditable service under Pension

Code §7-141.1 and thereafter accepts employment with or enters into a personal services contract

with an employer under Article 7 forfeits that age enhancement and creditable service and must

repay a portion of benefits received attributed to such enhanced creditable service.

An employer may not provide another early retirement incentive program under Pension

Code §7-141.1 until the liability arising from the earlier program has been fully paid to the IMRF.

6. Disability Benefits

a. [4.85] Temporary Benefits

An Illinois Municipal Retirement Fund participating employee unable to perform the duties

of any position to which he or she might reasonably be assigned by reason of physical or mental

disability other than as the result of self-inflicted injury or drug addiction (Pension Code §7-146),

who submits to the board a doctor’s and local governing body’s certification, is eligible for a

temporary disability pension in an amount equal to 50 percent of the employee’s average monthly

earnings. The participant is eligible if, among other things, the participant (1) has more than one

year of creditable service (meeting certain qualifications); (2) has had the disability for at least 30

days (sick leave, vacation, or other benefits may be received during this period of time (id.)); (3)

is receiving no earnings from a participating employer; (4) submits to physical examinations

required by the board; (5) is not suffering from a condition predating his or her employment

unless the employee has at least five years’ creditable service or no treatment in the last three

years; and (6) is not separated from service with the employer (note that termination due to

disability does not constitute a separation).

b. [4.86] Permanent Disability

To be eligible for total and permanent disability benefits, a participating employee with at

least one year of service must have exhausted his or her temporary disability benefits and must

provide the Illinois Municipal Retirement Fund board with written certification by at least one

licensed and practicing physician stating that the employee is “unable to engage in any gainful

activity because of any medically determinable physical or mental impairment which can be

expected to result in death or be of a long continued and indefinite duration, other than as a result

of self-inflicted injury or addiction to narcotic drugs.” Pension Code §7-150. If eligible, the

employee would receive total and permanent disability benefits in an amount equal to 50 percent

of the employee’s final rate of earnings until age 65, at which time, if the employee is otherwise

qualified, the IMRF retirement annuity is available. Pension Code §7-152.

c. [4.87] Social Security Coordination

Temporary and permanent Illinois Municipal Retirement Fund disability benefits are

coordinated with social security disability benefits so as to provide a maximum of 50 percent of

the employee’s final rate of earnings, with IMRF paying only the difference between social

security disability benefits (if any) and 50 percent of the employee’s final rate of pay. However,

IMRF benefits are not reduced to less than $10 per month. Pension Code §7-152.

d. [4.88] Workers’ Compensation

Temporary and permanent disability benefits may be reduced by the amount of workers’

compensation or occupational disease payments (other than payment for medical expenses of loss

of, or loss of use of, a body member). However, benefits are not reduced below $10 per month.

Pension Code §7-152.

e. [4.89] Survivors’ Benefits

Illinois Municipal Retirement Fund benefits for surviving spouse and child annuities are set

forth in Pension Code §§7-154 through 5/7-162.

f. [4.90] Death Benefits

The Illinois Municipal Retirement Fund has death benefits for the beneficiaries of

participating employees with more than one year of creditable service in an amount equal to one

year’s salary plus a refund on all employee fund contributions with interest. Pension Code §§7-

163, 5/7-164. Lesser death benefits are available to the beneficiaries of former participants and

IMRF pensioners.

7. [4.91] Social Security Coverage Under the IMRF

The Illinois Municipal Retirement Fund and the municipalities that participate in social

security coverage under the IMRF are subject to an agreement under §218 of the Social Security

Act (42 U.S.C. §418) between the State of Illinois and the Commissioner of Social Security for

social security coverage of employees. Employees and officials who participate in the IMRF and

most employees and officials who do not qualify or choose not to participate are covered by

social security. Social security taxes must be deducted from compensation paid to members of a

city council or village board and other municipal boards and commissions, part-time employees,

and those hired at age 60 or over who do not qualify for IMRF participation.

The social security agreement is administered by the Social Security Administration, and

social security taxes are forwarded by the IMRF to the State of Illinois and then to the U.S.

Treasury. The Social Security Administration rules and interpretations are different in some

respects from those of the IRS in administering the Federal Insurance Contributions Act (FICA),

26 U.S.C. §3101, et seq., which is applicable to private employers and nonprofit organizations.

See, e.g., State of New Mexico v. Weinberger, 517 F.2d 989 (10th Cir. 1975). This is significant

because although the two statutes are practically identical, the application of the Social Security

Act provisions by the Social Security Administration may be different from the application of

FICA by the Internal Revenue Service. Police officers and firefighters are subject to social

security coverage, which varies from municipality to municipality under the IMRF.

D. [4.92] Pensions and Qualified Illinois Domestic Relations Orders

Effective July 1999, distribution of public pension benefits may now be subject to a qualified

Illinois domestic relations order (QILDRO). Illinois Pension Code, 40 ILCS 5/1-119. Basically,

this is an order in the context of a domestic relations action directed to the pension board,

providing for the distribution of a member’s pension benefits. The QILDRO cannot cause the

retirement system to pay any benefit that would not have been payable by the system to a regular

payee, nor does it apply to or affect the payment of any survivor’s benefit, death benefit,

disability benefit, life insurance benefit, or health insurance benefit. The QILDRO must specify

each benefit to which it applies and the amount of the benefit to be paid to the alternate payee. In

the case of a non-periodic benefit, the QILDRO must provide for a dollar amount, and in the

case of a periodic benefit, it shall provide for a dollar amount per month. The effective date of the

QILDRO must be stated, and a retirement system may adopt rules to prorate the amount of the

first and final periodic payments to an alternate payee. A certified copy of the QILDRO and a

nonrefundable $50 processing fee must be filed with the retirement system, which must then

notify the member and the alternate payee by first class mail of its receipt of the order.

A pension fund and its board are not liable for any amount of a benefit that is paid in good

faith to an alternate payee in accordance with a QILDRO. The alternate payee is responsible for

maintaining a current residence address on file with the retirement system, and the retirement

system has no duty to attempt to locate the alternate payee by any means other than sending

written notice to the last known address of the alternate payee on file with the system.

If the amount of a benefit that is specified in a QILDRO for payment to an alternate payee

exceeds the actual amount of that benefit payable by the retirement system, the excess is

disregarded. In the event of multiple QILDROs against a member, the retirement system must

honor all of the QILDROs to the extent possible. If the total amount of a benefit to be paid to

alternate payees under all QILDROs in effect against the member exceeds the actual amount of

that benefit payable by the system, the QILDROs must be satisfied in the order of their receipt by

the system until the amount of the benefit is exhausted and cannot be adjusted pro rata. A

modification of a QILDRO is filed with the retirement system in the same manner as a new

QILDRO. The pension fund is required to provide information regarding a member’s status and

benefits within 45 days after receiving a proper subpoena. Errors in payment may be corrected by

deducting the overpayment from future payments and making a payment to the correct payee.

Because Article XIII, §5, of the Illinois Constitution prohibits the diminution of vested

pension benefits, if the regular payee was a member of the fund on or before July, 1, 1999, that

person’s consent must be obtained for the QILDRO. Forms for the QILDRO and consent are

provided in Pension Code §1-119. See also the Illinois Municipal Retirement Fund’s website,

www.imrf.org/pubs/member_pubs/member_forms.htm. Finally, a pension board may adopt

procedures or rules that it deems necessary or useful for the implementation of Pension Code §1-

119.

E. [4.93] Health Insurance Benefits

The Illinois Insurance Code (215 ILCS 5/367f, 5/376g, and 5/367j) states that when a

municipal employer provides a group accident and health plan, municipal employees, police

officers, and firefighters as defined under Articles 3, 4, and 7 of the Pension Code must be

afforded, at retirement, an opportunity to continue as participants of such plan at the same level of

benefit as is provided from time to time to active employees. The premium for this continuation is

to be paid by the employee-retiree and is to be at the same level as that for active employees.

However, this does not require the employer to pay the retiree’s premium, even if it pays all or

part of such premium for active employees.

The Public Safety Employee Benefits Act, 820 ILCS 320/1, et seq., mandates that in certain

circumstances a police officer or firefighter suffering a catastrophic injury be provided health

insurance for himself or herself and his or her dependants to be paid by the employer. To qualify,

the injury must be a “catastrophic injury” that occurred on or after the effective date of the Act

(Nov. 14, 1997) and “must have occurred as the result of the officer’s response to fresh pursuit,

the officer or firefighter’s response to what is reasonably believed to be an emergency, an

unlawful act perpetrated by another, or during the investigation of a criminal act.” 820 ILCS

320/10(b). Unfortunately, the Illinois legislature did not define the term “catastrophic injury.”

There was some debate regarding whether the mere qualification for duty-related disability

qualifies the individual as having suffered a catastrophic injury. In Villarreal v. Village of

Schaumburg, 325 Ill.App.3d 1157, 759 N.E.2d 76, 259 Ill.Dec. 596 (1st Dist. 2001), the First

District Appellate Court ruled that a duty-related disability did not, per se, constitute a

catastrophic injury; rather, the employee must be shown to be unemployable in virtually any

capacity. However, in Krohe v. City of Bloomington, 204 Ill.2d 392, 789 N.E.2d 1211, 273

Ill.Dec. 779 (2003), the Illinois Supreme Court ruled that a duty-related disability qualifies as a

catastrophic injury under the Act. Thus, a duty-related disability automatically equates to a

catastrophic injury and triggers the benefits of the Act provided the other criteria are met. In light

of the fact that a pension board determines whether a disability is duty related and that the

municipality will be bound by the board’s decision, it is likely that municipal employers will take

an increasingly active role in pension board proceedings, especially to contest whether a disability

is in fact duty related.

F. Retirement Systems Reciprocal Act

1. [4.94] Funds Covered

Article 20 of the Pension Code, known as the Retirement Systems Reciprocal Act, provides

for reciprocal retirement systems. The following are reciprocal:

a. Illinois Municipal Retirement Fund (Pension Code §7-101, et seq.);

b. Municipal Employees,’ Officers,’ and Officials’ Annuity and Benefit Fund — Cities

Over 500,000 Inhabitants (Pension Code §8-101, et seq.);

c. State Employees’ Retirement System of Illinois (Pension Code §14-101, et seq.);

d. Teachers’ Retirement System of the State of Illinois (Pension Code §16-101, et seq.);

e. State Universities Retirement System (Pension Code §15-101, et seq.);

f. General Assembly Retirement System (Pension Code §2-101, et seq.);

g. Judges Retirement System of Illinois (Pension Code §18-101, et seq.);

h. County Employees’ and Officers’ Annuity and Benefit Fund — Counties Over 500,000

Inhabitants (Pension Code §9-101, et seq.);

i. Forest Preserve District Employees’ Annuity and Benefit Fund (Pension Code §10-101,

et seq.);

j. Park Employees’ and Retirement Board Employees’ Annuity and Benefit Fund — Cities

Over 500,000 Inhabitants (Pension Code §12-101, et seq.);

k. Sanitary District Employees’ and Trustees’ Annuity and Benefit Fund (Pension Code

§13-101, et seq.); and

l. Laborers’ and Retirement Board Employees’ Annuity and Benefit Fund — Cities Over

500,000 Inhabitants (Pension Code §11-101, et seq.).

The downstate police officers’ and firefighters’ pension funds are not covered by the

Retirement Systems Reciprocal Act, and there is only limited reciprocity between such funds and

other retirement funds. Pension Code §§3-110.2 through 3-110.7, 4-108.1 through 4-108.3.

2. [4.95] Eligibility

An employee with at least one year of creditable service in two or more retirement systems

covered by the Retirement Systems Reciprocal Act may use the combined service credit of each

for the purpose of meeting the qualifying conditions of each of the pension funds in which that

employee has service credit. Pension Code §20-109. To be eligible for a reciprocal retirement

benefit, the employee must meet the minimum eligibility requirements of the most demanding

retirement system (Pension Code §20-115) and must retire in all systems simultaneously. Upon

such retirement, each retirement system pays a proportional retirement annuity or survivor’s

annuity for the amount of credit earned in that system based on its own retirement pension

formula and the highest level of earnings in any of the reciprocal plans. Pension Code §20-121.

Disability and death benefit provisions are not affected by the provisions of the Retirement

Systems Reciprocal Act. Pension Code §20-114.

G. [4.96] Social Security

Generally, municipal employees may be covered by the Social Security Act, 42 U.S.C. §301,

et seq. There are a number of ways in which that coverage may occur.

The State of Illinois, through its Social Security Unit of the State Employees’ Retirement

System, has entered into an agreement with the Commissioner of Social Security for the purpose

of extending social security coverage and benefits to the employees of the State of Illinois and its

political subdivisions.

Some municipalities provide no social security coverage for their employees. Such

municipalities have, however, statutory authority to become covered by the adoption of a

resolution electing to participate or by petition and referendum. Pension Code §21-103.

Some municipalities became covered by the Social Security Act by entering into an

agreement with the Social Security Unit of the State Employees’ Retirement System.

In 1957, the Illinois Municipal Retirement Fund became a party to the state-federal

agreement, thereby automatically covering all IMRF participants under social security.

Municipal police and fire personnel may or may not be covered by social security, depending

on the municipality’s population and the existence or nonexistence of a police officers’ and/or

firefighters’ pension fund at the time the municipality first came under social security either by

agreement, as a member of the IMRF in 1957, or by a subsequent affiliation with the IMRF. The

rules for such coverage are found in Pension Code §21-106.

Municipal Personnel Practices

I. [5.1] Scope of Chapter

II. State Law Regulating Employment Relationship

A. [5.2] Civil Service in Cities (Division 1)

1. [5.3] Adoption of Civil Service Provisions

2. [5.4] Civil Service Commission

3. [5.5] Employees Subject to Civil Service Rules

B. [5.6] Police and Fire Commissioners

C. [5.7] Illinois Public Labor Relations Act

III. Discrimination in Employment

A. [5.8] Introduction

B. Federal Employment Discrimination Law

1. Statutes

a. [5.9] Title VII of Civil Rights Act of 1964

b. [5.10] Age Discrimination in Employment Act of 1967

c. [5.11] 42 U.S.C. §1983

d. [5.12] 42 U.S.C. §1981

e. [5.13] Equal Pay Act of 1963

f. [5.14] Rehabilitation Act of 1973

g. [5.15] Americans with Disabilities Act of 1990

h. [5.16] Immigration Reform and Control Act of 1986

2. Basic Procedures and Burdens of Proof at Trial

a. [5.17] Filing

b. [5.18] EEOC Process

c. Burden of Proof at Trial

(1) [5.19] Title VII and ADEA

(2) [5.20] Sexual harassment under Title VII

(3) [5.21] Equal Pay Act of 1963

(4) [5.22] ADA

(5) [5.23] Rehabilitation Act

d. [5.24] Right to Jury Trial

e. [5.25] Remedies

C. Illinois Human Rights Act

1. [5.26] Prohibited Discrimination

2. [5.27] Special IHRA Rules for Parties to Public Contracts

3. Procedures and Burdens of Proof Under IHRA

a. [5.28] Pattern and Practice Cases

b. [5.29] Procedure Before Department of Human Rights

c. [5.30] Time Limits on Filing Complaint with HRC

d. [5.31] Complaints Before HRC

e. [5.32] Burden of Proof

f. [5.33] Appeals to Courts

g. [5.34] Remedies

4. [5.35] Relationship Between State and Federal Discrimination Statutes and

Procedures

D. Other Discrimination Acts

1. [5.36] Religious Freedom Restoration Act

2. [5.37] Illinois Civil Rights Act of 2003

3. [5.38] Illinois Equal Pay Act

4. [5.39] Local Ordinances

5. [5.40] Other Acts

IV. Constitutional Rights

A. [5.41] Introduction and Scope

B. [5.42] Fourteenth Amendment Right to Due Process

1. [5.43] What Constitutes a Property Interest?

2. [5.44] What Constitutes a Liberty Interest?

3. [5.45] What Process Is Due?

C. [5.46] Freedom of Expression

1. [5.47] Right To Speak Freely of Matters of Public Concern

2. [5.48] Rights To Engage in Political Partisanship or To Express Political

Opinions

D. [5.49] Selected Privacy Issues

1. [5.50] Substance Abuse Testing

2. [5.51] Searches and Seizures

3. [5.52] Preemployment Inquiries

V. Hiring Process

A. [5.53] Civil Service Procedures

1. [5.54] Commission

2. [5.55] Vacancy Notice and Examination Fees

3. [5.56] Examination

4. [5.57] Eligibility List

5. [5.58] Veteran’s Preference

6. [5.59] Appointments

7. [5.60] Probation

B. [5.61] Limitations on Prehire Medical Examinations

C. [5.62] Prohibited Questions on Employment Applications and During Job Interviews

D. [5.63] Use of Lie Detector Tests

E. [5.64] Fair Credit Reporting Act Requirements

F. [5.65] Immigration Reform and Control Act Requirements

VI. [5.66] Wage and Hour Laws

A. Fair Labor Standards Act of 1938

1. [5.67] Coverage

a. [5.68] Minimum Wages

b. [5.69] Equal Pay Act, ADEA, and FMLA

c. [5.70] Overtime

d. [5.71] Child Labor

2. [5.72] Record-Keeping Requirements

3. [5.73] Enforcement and Penalties

B. [5.74] Minimum Wage Law

C. [5.75] Illinois Equal Pay Act

D. [5.76] Illinois Equal Wage Act

E. [5.77] Illinois Wage Payment and Collection Act

1. [5.78] Wages

2. [5.79] Pay Periods and Time Limits for Payment

3. [5.80] Separation Pay and Unused Vacation Time

4. [5.81] Wage Deductions

5. [5.82] Notice Requirements

6. [5.83] Enforcement and Remedies

F. [5.84] Wages of Women and Minors Act

G. Prevailing Wage Act

1. [5.85] Purpose and Relevance

2. [5.86] Prevailing Wages

3. [5.87] Record-Keeping Requirements

4. [5.88] Enforcement

H. [5.89] Eight Hour Work Day Act; One Day Rest in Seven Act

I. [5.90] Employee Medical Contribution Act

J. [5.91] Employee Benefit Contribution Act

K. [5.92] Personal Service Wage Refund Act

L. [5.93] Earned Income Tax Credit Information Act

VII. Workers’ Compensation, Occupational Disease, Disability, and Death Benefits

A. [5.94] Workers’ Compensation Act

1. [5.95] Employee Benefits Under WCA

2. [5.96] Employer Obligations

3. [5.97] Administering Claims

4. [5.98] Nondiscrimination Provisions

B. [5.99] Workers’ Occupational Diseases Act

C. [5.100] Line of Duty Compensation Act

D. [5.101] Federally Provided Public Safety Officers Death and Disability Benefits

E. [5.102] Public Employee Disability Act

F. [5.103] Public Safety Employee Benefits Act

VIII. Safety and Health Laws

A. [5.104] Occupational Safety and Health Act of 1970

B. Health and Safety Act

1. [5.105] Applicability

2. [5.106] Safety and Health Standards

3. [5.107] Notice and Record-Keeping Requirements

4. [5.108] Enforcement

5. [5.109] Nondiscrimination Provisions

C. Toxic Substances Disclosure to Employees Act

1. [5.110] Purpose and Scope

2. Employer Obligations

a. [5.111] Record-Keeping Requirements

b. [5.112] Posting and Labeling Requirements

c. [5.113] Training Requirements and Fire Safety

3. [5.114] Employee Rights

4. [5.115] Compliance

D. [5.116] Medical Examination of Employees Act

E. [5.117] Omnibus Transportation Employee Testing Act of 1991

IX. [5.118] Other Employee Rights

A. [5.119] Personnel Record Review Act

B. [5.120] Employment Record Disclosure Act

C. [5.121] Health Insurance Claim Filing Act

D. [5.122] Right to Privacy in the Workplace Act

E. [5.123] Genetic Information Privacy Act

F. [5.124] Employer Eavesdropping

G. [5.125] Employer Videotaping

H. [5.126] Illinois Clean Indoor Air Act

I. [5.127] Illinois Wage Assignment Act

J. [5.128] Whistleblower Reward and Protection Act; Federal False Claims Act

K. Political Rights

1. [5.129] Local Governmental Employees Political Rights Act

2. [5.130] Civil Service Protections

L. [5.131] Voting Leave

M. [5.132] Employee Blood Donation Leave

N. [5.133] Jury/Witness Duty

O. [5.134] Nursing Mothers in the Workplace Act

P. [5.135] School Visitation Rights Act

Q. [5.136] Family and Medical Leave Act of 1993

R. [5.137] Victims’ Economic Security and Safety Act

S. Military Leave and Reemployment Rights

1. [5.138] Municipal Employees Military Active Duty Act

2. [5.139] Family Military Leave Act

3. [5.140] Service Member’s Employment Tenure Act

4. [5.141] Military Leave of Absence Act

5. [5.142] Local Government Employees Benefits Continuation Act

6. [5.143] Uniformed Services Employment and Reemployment Rights Act of 1994

T. [5.144] State Officials and Employees Ethics Act

U. [5.145] Time Off for Official Meetings Act

V. [5.146] Local Government Disaster Service Volunteer Act

X. Promotions

A. [5.147] General Considerations

B. [5.148] Civil Service Rules

C. [5.149] Fire Department Promotion Act

XI. Discipline and Dismissal

A. [5.150] Nondiscrimination

B. [5.151] Public Employees at Will?

C. Statutory Restrictions on Discipline and Dismissal

1. [5.152] Police Officers and Firefighters

2. Civil Service Provisions

a. [5.153] Basis for Discipline or Discharge — Cause

b. Procedural Requirements

(1) [5.154] Probationary employees

(2) [5.155] Non-suspension discipline

(3) [5.156] Suspensions not exceeding thirty days

(4) [5.157] Discharge or suspensions of more than thirty days

(a) [5.158] Charge requirements

(b) [5.159] Interrogation rights

D. Contractual Limitations

1. [5.161] Individual Employment Contracts or Collective Bargaining Agreements

2. [5.162] Employee Handbooks and Other Employer “Statements”

3. [5.163] Implied Covenants of Good Faith and Fair Dealing

E. Employment Tort Claims

1. [5.164] General Tort Actions

2. [5.165] Retaliatory Discharge

F. Unemployment Compensation

1. [5.166] Coverage and Benefits

2. [5.167] Public Employer Obligations

3. [5.168] Employee Eligibility

4. [5.169] Claim Process

5. [5.170] New Employee Reporting Requirement

G. Continuation of Insurance Benefits

1. [5.171] Federal Law: Consolidated Omnibus Budget Reconciliation Act of 1985

2. [5.172] Health Insurance Portability and Accountability Act of 1996

3. [5.173] State Insurance Code

a. [5.174] Terminated Employees

b. [5.175] Continued Spousal or Dependent Coverage in Case of Divorce or

Death

c. [5.176] Retiring or Disabled Police Officers, Firefighters, and Municipal

Employees

XII. Pensions

A. Applicable Law

1. [5.177] Federal Law

2. [5.178] State Law

3. [5.179] State Constitution: Article XIII, §5

B. [5.180] General Provisions Applicable to All State Pension Funds

C. [5.181] Police Officers’ and Firefighters’ Pension Funds

1. Fund Creation and Administration

a. [5.182] Fund Establishment

b. [5.183] Board of Trustees: Membership, Powers, and Duties

2. [5.184] Eligibility for Fund Membership

3. [5.185] Financing of Pension Fund

4. [5.186] Benefits

a. [5.187] Pension Credit Portability Funds

b. [5.188] Retirement

c. [5.189] Police Self-Managed Plan Option

d. [5.190] Disability Pensions

e. [5.191] Disability Pension Option

f. [5.192] Health Insurance Benefits

5. [5.193] Additional Information and Assistance

D. Illinois Municipal Retirement Fund

1. Creation and Administration

a. [5.194] Established

b. [5.195] Board of Trustees: Membership, Powers, and Duties

c. [5.196] Authorized Agent

2. [5.197] Eligibility for Membership

3. [5.198] Financing

4. [5.199] Benefits

a. [5.200] Retirement

b. [5.201] Disability

c. [5.202] Health Insurance

5. [5.203] Social Security Coverage Under IMRF

6. [5.204] Additional Information

E. Retirement Systems Reciprocal Act

1. [5.205] Funds Covered

2. [5.206] Eligibility

F. [5.207] Social Security

G. [5.208] Deferred Compensation Plans

I. [5.1] SCOPE OF CHAPTER

Do not be fooled by the title — no one chapter can cover from beginning to end the rules and

regulations governing the public employer-employee relationship. This is true even though other

chapters of this handbook lend support by addressing several employment areas. This chapter is

intended to acquaint municipal lawyers and officials briefly with many of the federal, state, and

common laws affecting the employer-employee relationship except for those areas covered in

more detail in other chapters of the book. See Ch. 4, Officers and Employees; Ch. 6, Police

Departments and Fire Departments. See also the chapter on municipal labor law in Volume IV of

IICLE’s ILLINOIS MUNICIPAL LAW SERIES (publication scheduled for fall 2006).

The chapter is organized to address the laws as they affect each stage of the employment

relationship. The sections that follow, covering laws regulating employment, constitutional

issues, and employment discrimination, apply throughout the employment relationship. They

should be considered and referred to before making any personnel decision.

II. STATE LAW REGULATING EMPLOYMENT RELATIONSHIP

A. [5.2] Civil Service in Cities (Division 1)

Rather than adopting their own personnel administration systems, municipalities have the

choice of adopting the system provided for in the civil service in cities statutes contained in

Division 1 of Article 10 of the Illinois Municipal Code (Code), 65 ILCS 5/10-1-1, et seq.

Division 1 outlines basic provisions for the public employment relationship from the hiring to the

firing of employees. When applicable, these provisions are referred to throughout this chapter.

1. [5.3] Adoption of Civil Service Provisions

Municipalities may adopt the obligations and benefits of Division 1 of the Illinois Municipal

Code by referendum only. Note, however, that home rule municipalities may later, as a valid

exercise of their home rule authority, unilaterally alter or amend the Division’s terms. City of

Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill.2d

353, 522 N.E.2d 1219, 119 Ill.Dec. 360 (1988); Peters v. City of Springfield, 57 Ill.2d 142, 311

N.E.2d 107 (1974). One thousand voters who voted in the last preceding election (or one eighth

of the number of citizens voting in the last municipal election, whichever is less) must petition the

court for a referendum on the next election. A majority of all the votes cast on the proposition is

required for its adoption. Code §§10-1-43, 10-1-44.

2. [5.4] Civil Service Commission

Municipalities adopting Division 1 of the Illinois Municipal Code must create a three-person

civil service commission (commission) to make the procedural rules necessary to carry out the

provisions of Division 1. The mayor appoints the commissioners to staggered three-year terms

with no more than two commissioners permitted from the same party. In municipalities with a

commission form of government, however, the corporate authorities appoint the commissioners

and may, by ordinance, increase the commission to five members with staggered three-year terms

with no more than three commissioners from the same political party. Code §10-1-1. A majority

of commission members constitutes a quorum.

Commissioners may not be convicted felons and are prevented from holding any other

“lucrative office or employment under the United States, the State of Illinois, or any municipal

corporation or political division thereof.” Code §10-1-1. They are required to take an oath of

office. Like all public officers or employees, commissioners who violate any provisions of

Division 1 may be found guilty of a misdemeanor and upon conviction will lose their positions

and be barred from holding any public office for five years. Code §§10-1-40, 10-1-41.

Among its many responsibilities, the commission classifies all positions of employment, fills

vacancies, promotes employees, and investigates and rules on certain disciplinary matters. Code

§§10-1-3, 10-1-5. The commission’s role in municipal personnel actions is discussed throughout

this chapter.

3. [5.5] Employees Subject to Civil Service Rules

Elected officials, employees subject to confirmation by the corporate authorities, election

judges, police cadets, police officers above the rank of captain, department heads, city managers,

certain seasonal employees, and some additional employees are not subject to Division 1 civil

service rules. Illinois Municipal Code §10-1-17. The police chief, however, may elect to be

included in the classified service if it is permitted by a municipal ordinance. Police officers and

firefighters will be subject to Division 1 provided they were not already subject to a board of fire

and police commissioners under Division 2.1 of Article 10 of the Code, which covers boards of

fire and police commissioners. Code §10-1-43.

B. [5.6] Police and Fire Commissioners

Municipalities with populations of at least 5,000 but fewer than 250,000 inhabitants and not

subject to Illinois Municipal Code Division 1 civil service rules are required to appoint a threeperson

board of fire and police commissioners whose duties are to appoint, promote, and

discipline police officers and firefighters. Code §10-2.1-1. Additionally, municipalities with

populations of fewer than 5,000 inhabitants may opt to be bound by Division 2.1 through a

referendum similar to that for adopting Division 1 rules. Code §10-2.1-27. This chapter does not

address fire and police commissions or the special Division 1 rules relating to police officers and

firefighters. Since Division 1 treats police officers and firefighters differently from other

employees, for questions involving them please see Chapter 6 of this handbook, Police

Departments and Fire Departments.

C. [5.7] Illinois Public Labor Relations Act

Under the Illinois Public Labor Relations Act (IPLRA), 5 ILCS 315/1, et seq., public

employees have the right to organize and form labor organizations “for the purpose of negotiating

wages, hours and other conditions of employment or other mutual aid or protection.” 5 ILCS

315/2. With the advent of collective bargaining, many municipalities must make sure their

personnel decisions not only comply with state and federal law but also comply with the

provisions of collective bargaining agreements. For a discussion of the limitations placed on

municipalities by the IPLRA, see the chapter on labor law in Volume IV of IICLE’s ILLINOIS

MUNICIPAL LAW SERIES (publication scheduled for fall 2006).

III. DISCRIMINATION IN EMPLOYMENT

A. [5.8] Introduction

Federal and state statutes prohibit public employers from discriminating against job

applicants and employees on many bases, including race, color, national origin, citizenship,

ancestry, religion, disability, age, sex, marital status, or unfavorable discharge from the military.

Unlawful discrimination can occur at any point in the employment relationship — recruitment,

hiring, promotion, training, discharge, discipline, wages, or conditions of employment. Thus,

municipalities must carefully ensure that all employment actions are based on legitimate,

nondiscriminatory grounds.

B. Federal Employment Discrimination Law

1. Statutes

a. [5.9] Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §2000e, et seq., makes it an

unlawful employment practice for an employer to discriminate against any individual with respect

to any term or condition of employment because of that individual’s “race, color, religion, sex, or

national origin.” 42 U.S.C. §2000e-2. In 1976, Congress amended Title VII to expand the

definition of “sex discrimination” to include actions taken based on a woman’s pregnancy,

childbirth, or related medical conditions. Sexual harassment also is prohibited. Differences based

on “bona fide” seniority or merit systems are permitted as is employment based on sex, religion,

or national origin when such a qualification is a “bona fide occupational qualification reasonably

necessary to the normal operation” of the business — a very difficult standard to meet. 42 U.S.C.

§2000e-2(e). Title VII is administered by the Equal Employment Opportunity Commission

(EEOC) and, by virtue of deferral, the Illinois Department of Human Rights (IDHR). Employers

with more than 15 employees are covered under Title VII. 42 U.S.C. §2000e(b).

b. [5.10] Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621, et seq.,

makes it unlawful for an employer to discriminate against employees or job applicants based on

their age provided they are 40 years of age or older. The ADEA also prohibits harassment and

discrimination on the basis of age in employee pension plans.

The ADEA does not prohibit employers from making age-based employment decisions when

“age is a bona fide occupational qualification reasonably necessary to the normal operation of the

particular business.” 29 U.S.C. §623(f). Proving that age (or any other protected characteristic,

for that matter) is a bona fide occupational qualification (BFOQ), however, can be difficult. See,

e.g., Equal Employment Opportunity Commission v. City of Linton, Indiana, 623 F.Supp. 724

(S.D.Ind. 1985) (hiring age limit of less than 36 years of age held not to be BFOQ for police

officers when evidence demonstrated it was not reasonably necessary); Equal Employment

Opportunity Commission v. State of Florida, Department of Highway Safety & Motor Vehicles,

660 F.Supp. 1104 (N.D.Fla. 1986) (state police retirement age of 62 held not bona fide). Cf.

Popkins v. Zagel, 611 F.Supp. 809 (C.D.Ill. 1985) (state police retirement age of 60 held bona

fide).

On September 30, 1996, Congress amended the ADEA by reinstating the law enforcement

officer and firefighter exemptions that had expired on December 31, 1993. 29 U.S.C. §623(j), as

amended by Pub.L. No. 104-208, §119(1)(b), 110 Stat. 3009 (1996). The former exemption

allowed a public employer to refuse to hire or to discharge any firefighter or law enforcement

officer because of the individual’s age, provided that the employer action was pursuant to age

limits under state or local law in effect on March 3, 1983. The 1996 amendment reenacted and

amended the ADEA exemption, which now applies to

1. the discharge of or failure to employ individuals who have attained the age of hiring or

retirement, respectively, in effect under applicable state or local law on March 3, 1983

(this parallels the old exemption);

2. job applicants who have attained the age of hiring in effect under applicable state or local

law after the enactment of the amendments; or

3. the discharge of an employee pursuant to an applicable state or local law enacted after the

1996 amendments, provided the employee is at least 55. 29 U.S.C. §623(j)(1).

An employer’s refusal to hire or discharge of an employee, however, can be made only pursuant

to a bona fide hiring or retirement plan and cannot be subterfuge to evade the ADEA. 29 U.S.C.

§623(j)(2). The amendment also provides that it will be unlawful to refuse to hire or to discharge

an individual pursuant to a law that was enacted between March 3, 1983, and September 30,

1996, and that lowered the age of hiring or retirement in effect for law enforcement officers and

firefighters under applicable state or local law as it existed on March 3, 1983. Pub.L. No. 104-

208, §119(1)(c).

The ADEA also directs the Secretary of Health and Human Services to issue regulations

identifying valid, nondiscriminatory job performance tests that shall be used by employers

seeking the exemption for mandatory retirement. Once the regulations have been issued, an

employer seeking an exemption with respect to a firefighter or police officer reaching retirement

age must first provide the employee an annual opportunity to demonstrate fitness by passing the

tests set forth in the regulations.

Illinois’ parallel age-based hiring and retirement exemption for law enforcement officers and

firefighters under the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq., was

reinstated. As a result, an Illinois public employer may lawfully institute a mandatory retirement

age or a hiring age in compliance with the IHRA. 775 ILCS 5/2-104, as amended by P.A. 90-481;

Minch v. City of Chicago, 363 F.3d 615 (7th Cir. 2004) (Chicago’s mandatory retirement plan for

police and firefighters at age 63 was not subterfuge to evade ADEA); Kopec v. City of Elmhurst,

193 F.3d 894 (7th Cir. 1999) (policy that full-time police hires must be under age 35 upheld). See

Feldman v. Nassau County, 434 F.3d 177 (2d Cir. 2006) (state law prohibiting applicants over

age 35 sitting for civil service exam from becoming police officers qualifies for law enforcement

exception).

The ADEA also allows employers to establish and maintain bona fide seniority systems as

long as they do not require employees to retire based on their age (with exceptions for certain

executives entitled to receive nonforfeitable annual retirement benefits of at least $44,000 and

tenured college professors). The ADEA also allows employers to observe the terms of a bona fide

employee benefit plan, albeit with certain restrictions. 29 U.S.C. §623(f). The ADEA is

administered by the Equal Employment Opportunity Commission.

The Supreme Court has unanimously held that an age discrimination plaintiff can make out a

prima facie case even if the person replacing the plaintiff (or receiving more favorable treatment)

is also within the ADEA’s protected class (age 40 and above) as long as the replacement is

younger than the plaintiff. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 134

L.Ed.2d 433, 116 S.Ct. 1307 (1996).

c. [5.11] 42 U.S.C. §1983

42 U.S.C. §1983 provides a cause of action for persons who, “under color of any statute,

ordinance, regulation, custom, or usage” of any state, are deprived of any rights or privileges

secured by the Constitution and the laws of the United States. 42 U.S.C. §1983. The courts have

interpreted §1983 to prohibit race, sex, and national origin discrimination by municipalities and

other local governmental units. Monell v. Department of Social Services of City of New York, 436

U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978) (holding municipalities are “persons” subject to

§1983 suits). Age discrimination, however, is not protected under §1983. To state a cause of

action against a municipality, a plaintiff must demonstrate that the alleged constitutional or

statutory violations were caused by a governmental custom, officially adopted policy statement,

or ordinance. An isolated act of a vague employee (i.e., no respondeat superior liability) is

insufficient. 98 S.Ct. at 2037 – 2038.

Employees bringing suit need not file first with the EEOC; they can file suit immediately in

federal court. The statute of limitations for §1983 actions is the state’s limitations period for torts.

In Illinois that limit is two years. Kalimara v. Illinois Department of Corrections, 879 F.2d 276,

277 (7th Cir. 1989). Plaintiffs generally are entitled to a jury trial if legal remedies are sought.

Remedies may include backpay and compensatory damages. Municipalities, however, are

immune from punitive damage awards. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69

L.Ed.2d 616, 101 S.Ct. 2748 (1981); Zewde v. Elgin Community College, 601 F.Supp. 1237

(N.D.Ill. 1984). Equitable remedies and attorneys’ fees are available also.

d. [5.12] 42 U.S.C. §1981

42 U.S.C. §1981 guarantees all persons the same right to make, perform, modify, enjoy the

benefits of, and terminate contracts as white persons. 42 U.S.C. §1981. Section 1981 provides

persons discriminated against in their employment (which is a contractual relationship) another

direct avenue to the courts. Employees alleging §1981 violations do not have to file charges with

the Equal Employment Opportunity Commission. Section 1981 prohibits purposeful

discrimination only; it does not apply to disparate impact discrimination, which Title VII

prohibits. General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 73 L.Ed.2d 835,

102 S.Ct. 3141 (1982). Some courts also have extended §1981 protection for at-will employees

since the at-will relationship is contractual in nature. Spriggs v. Diamond Auto Glass, 165 F.3d

1015 (4th Cir. 1999). A handful of district courts, however, have held there is no §1981

protection for at-will employees. Payne v. Abbott Laboratories, No. 97 C 3882, 1999 WL 116208

(N.D.Ill. Mar. 2, 1999). Plaintiffs have a right to a jury trial if legal remedies (compensatory

damages) have been requested and, if successful, may be entitled to equitable remedies, backpay,

compensatory damages, punitive damages, and attorneys’ fees. Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 44 L.Ed.2d 295, 95 S.Ct. 1716 (1975); 42 U.S.C. §1988(b)

(attorneys’ fees). As with claims under §1983, however, municipalities are immune from punitive

damages unless that immunity has been waived. Zewde v. Elgin Community College, 601 F.Supp.

1237, 1248 (N.D.Ill. 1984); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L.Ed.2d

616, 101 S.Ct. 2748 (1981) (held to apply as strongly to §1981 claims as to §1983 claims).

Ending years of inconsistency regarding the statute of limitations period for employment

discrimination cases brought under §1981 of the Civil Rights Act of 1866, the Supreme Court in

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 158 L.Ed.2d 645, 124 S.Ct. 1836 (2004),

adopted a uniform four-year limitations period. In so doing, the court stated that the intent of

Congress in enacting 28 U.S.C. §1658 — the statute establishing the limitations period — was to

have it cover all claims that were dependent on a statute established after December 1, 1990, even

if the underlying law was older. In this case, although the Civil Rights Act itself dates back to

1866, the amendment that allowed individuals to sue for employment discrimination under the

Act was enacted in 1991; therefore, the statute of limitations for §1981 employment

discrimination actions was to be four years.

e. [5.13] Equal Pay Act of 1963

The Equal Pay Act of 1963 (EPA), 29 U.S.C. §206, prohibits employers from paying

employees of one sex at a rate less than employees of the opposite sex in the same establishment

for “equal work on jobs the performance of which requires equal skill, effort, and responsibility,

and which are performed under similar working conditions.” 29 U.S.C. §206(d)(1). There are,

however, four key exceptions applying to employees paid pursuant to (1) a seniority system, (2) a

merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a

differential based on any factor other than sex.

Although the EPA prohibits only pay discrimination, Title VII prohibits any other sex-based

discrimination in employment. In fact, Title VII also prohibits pay discrimination, allowing

employees to bring wage discrimination claims under both Title VII and the EPA. County of

Washington, Oregon v. Gunther, 452 U.S. 161, 68 L.Ed.2d 751, 101 S.Ct. 2242 (1981). The EPA,

like Title VII, is administered by the Equal Employment Opportunity Commission and, by virtue

of deferral, the Illinois Department of Human Rights.

The EPA currently does not require employers to pay employees based on comparable worth

(i.e., paying the same wages for substantially different jobs that are worth the same monetarily to

the employer) because that is not equal pay for equal work. Provided the wage disparities among

different positions are not intentionally based on sex, courts generally have refused to uphold

comparable worth claims under Title VII as well. See, e.g., American Nurses’ Ass’n v. State of

Illinois, 783 F.2d 716 (7th Cir. 1986) (Title VII).

f. [5.14] Rehabilitation Act of 1973

The Rehabilitation Act of 1973, 29 U.S.C. §701, et seq., protects “otherwise qualified”

handicapped individuals from discrimination by federal agencies, employers with government

contracts, or employers receiving federal assistance. A person with a handicap is defined as one

who “(i) has a physical or mental impairment which substantially limits one or more of such

person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having

such an impairment.” 29 U.S.C. §705(20)(B). Current drug users, alcoholics whose current use of

alcohol interferes with their ability to perform their job or constitutes a direct threat to safety or

property, and persons with contagious diseases who would constitute a direct threat to the health

or safety of others or who are currently unable to perform their duties are not protected. 29 U.S.C.

§705(20)(C). Municipalities receiving federal financial assistance are subject to the

antidiscriminatory provisions of §504 of the Rehabilitation Act, 29 U.S.C. §794. Monell v.

Department of Social Services of the City of New York, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct.

2018 (1978).

g. [5.15] Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et seq., Pub.L. No.

101-336, 104 Stat. 327 (1990), prohibits discrimination against the disabled in such areas as

employment, public accommodations, state and local governmental services, telecommunications,

and transportation. A person with a “disability” is anyone who (1) has a “physical or mental

impairment that substantially limits one or more of the major life activities,” (2) has “a record of

such an impairment,” or (3) is “regarded as having such an impairment.” 42 U.S.C. §12102(2).

Under the ADA, however, “disability” does not include homosexuality, transvestitism,

transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting

from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania,

pyromania, and psychoactive substance use disorders resulting from current illegal drug usage. 42

U.S.C. §12211. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 151

L.Ed.2d 615, 122 S.Ct. 681 (2002), the Supreme Court held that to be substantially limited in a

major life activity, an individual must have an impairment that prevents or severely restricts the

individual from performing activities that are of “central importance to most people’s daily lives,”

and that such impairment’s impact must also be permanent or long term. Williams questioned, but

did not decide, whether working qualifies as a major life activity.

The ADA regulates public employers in two distinct ways. First, like private employers,

public employers with 15 or more employees are “employers” covered by the employment

provisions of the ADA, 42 U.S.C. §§12111 – 12117 (Title I). Second, according to the Equal

Employment Opportunity Commission and the Justice Department, public employment is a

“public accommodation” and, therefore, must be provided on a nondiscriminatory basis to all

persons in accordance with Title II of the ADA, 42 U.S.C. §§12131 – 12165. 28 C.F.R.

§35.140(a). Title II, the ADA’s public accommodation section, applies to all public employers

regardless of the size of the workforce and has been in effect since January 26, 1992. Thus, all

public employers and employees are subject to ADA discrimination provisions.

The procedures for bringing claims under Title I and Title II differ, however. Unlike Title I,

which adopts the EEOC claim-processing procedures of Title VII, Title II adopts the rights,

remedies, and procedures of §505 of the Rehabilitation Act (29 U.S.C. §794a), in which

claimants may file suit directly in federal court. 42 U.S.C. §§12117, 12133. Thus, it appears that

employees bringing Title II claims against employers of fewer than 15 employees may file suit

without first filing charges through the EEOC. Moreover, several district courts now have held

that any public employee, regardless of the employer’s size, may avoid the EEOC completely by

filing a Title II suit in federal court. See Roe v. County Commission of Monongalia County, 926

F.Supp. 74 (N.D.W.Va. 1996); Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill. 1995);

Petersen v. University of Wisconsin Board of Regents, 818 F.Supp. 1276 (W.D.Wis. 1993);

Finley v. Giacobbe, 827 F.Supp. 215 (S.D.N.Y. 1993), aff’d, 79 F.3d 1285 (2d Cir. 1996).

Regardless of whether a claim is raised under Title I or Title II, Title I’s standards for

determining whether discrimination exists will be used for employers subject to Title I. 28 C.F.R.

§35.140. For employers with fewer than 15 employees, the Justice Department applies the

standards of §504 of the Rehabilitation Act. 29 U.S.C. §794. See §5.14 above.

Title I of the ADA prohibits employers from discriminating against “a qualified individual

with a disability” in regard to application procedures, hiring, advancement, pay, training,

discharge, or other terms and conditions of employment. 42 U.S.C. §12112. “Qualified individual

with a disability” means “an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions” of the position in question. 42 U.S.C.

§12111(8). This term, however, does not include persons “currently engaging in the illegal use of

drugs.” 42 U.S.C. §12210. Discrimination under the ADA includes the use of procedures, tests, or

other qualification standards that tend to screen out the disabled unless such standards are job

related and consistent with a business necessity. Denying jobs or benefits to a person based on a

known disability of an individual with whom the qualified person is known to have a relationship

or association is also prohibited. 42 U.S.C. §12112(b).

One issue at the heart of the assessment of a “qualified individual” is whether individuals

with substantially limiting medical or psychiatric impairments are disabled if they can correct or

control their impairments by means of medication, treatment, assistive devices (such as hearing

aids), or self correction (such as an individual who is able to control his or her diabetes through

diet and exercise). In 1999, the United States Supreme Court decided a trio of cases, Sutton v.

United Airlines, Inc., 527 U.S. 471, 144 L.Ed.2d 450, 119 S.Ct. 2139 (1999); Murphy v. United

Parcel Service, Inc., 527 U.S. 516, 144 L.Ed.2d 484, 119 S.Ct. 2133, (1999); and Albertson’s,

Inc. v. Kirkingburg, 527 U.S. 555, 144 L.Ed.2d 518, 119 S.Ct. 2162 (1999), in which the Court

narrowed the scope of covered disabilities under the ADA by holding that the determination of

whether a plaintiff suffers from an impairment that substantially limits a major life activity must

be made after considering the effects of mitigating measures undertaken by or available to the

plaintiff — both positive and negative. Thus, courts may not speculate about the effects of the

plaintiff’s impairment in an unmitigated state, but instead must consider the effects of treatments,

medication, corrective devices, and even the plaintiff’s own efforts to compensate for

impairment. However, if an individual, for example, suffers from side effects (as a result of

taking medication) which themselves constitute a substantially limiting impairment, the

individual may still be able to establish that he or she is disabled.

Additionally, an employer is required to make reasonable accommodation for the known

disabling physical or mental limitations of an otherwise qualified individual unless the employer

can demonstrate that the accommodation would impose an undue hardship on its operations. 42

U.S.C. §12112(b)(5). Reasonable accommodation may include (1) making existing facilities used

by employees readily accessible to the disabled; (2) restructuring the job; (3) modifying work

schedules; (4) acquiring or modifying equipment; (5) adjusting or modifying examinations,

training materials, or policies; and (6) providing qualified readers or interpreters, etc. 42 U.S.C.

§12111(9). Reasonable accommodation is not required, however, when it will cause an undue

hardship. “Undue hardship” is an action requiring substantial difficulty or expense, when

considered in light of the cost, the employer’s resources and number of employees at that facility,

the overall size of the business and its resources, and the type of operation involved. 42 U.S.C.

§12111(10).

The Supreme Court declined to review a Seventh Circuit decision that ADA retaliation

plaintiffs may not receive compensatory or punitive damages and they are not entitled to a jury

trial. The Court of Appeals for the Seventh Circuit is the first court to address the issue and found

that retaliation claims under the ADA may be brought only for injunctive relief and thus plaintiffs

are not entitled to a jury trial because the only available relief is equitable in nature. Kramer v.

Banc of America Securities, LLC., 355 F.3d 961 (7th Cir.), cert. denied, 124 S.Ct. 2876 (2004).

Among the question-and-answer sheets the EEOC has provided about the ADA and made

available on the Web are some dealing with specific issues in the workplace such as those

concerning diabetes, epilepsy, and intellectual disabilities. To review these question-and-answer

sheets see Questions & Answers About Persons with Intellectual Disabilities in the Workplace

and the Americans with Disabilities Act, http://www.eeoc.gov/facts/intellectual_disabilities.html;

Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act

(ADA), http://www.eeoc.gov/facts/diabetes.html; Questions and Answers About Epilepsy in the

Workplace and the Americans with Disabilities Act (ADA), http://www.eeoc.gov/facts/

epilepsy.html.

As discussed in §§5.61 and 5.62 below, the ADA also restricts an employer’s use of selection

criteria, medical examinations, and inquiries into an applicant’s disabilities. The ADA’s

employment provisions are administered by the EEOC.

h. [5.16] Immigration Reform and Control Act of 1986

Besides imposing sanctions on employers who knowingly hire aliens not authorized to work

in the United States, the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. §1324,

et seq., Pub.L. No. 99-603, 100 Stat. 3359 (1986), prohibits discrimination in employment on the

grounds of an individual’s national origin or citizenship status. 8 U.S.C. §§1324a, 1324b. The

IRCA is enforced by a special counsel for immigration-related unfair employment practices with

the U.S. Department of Justice. 8 U.S.C. §1324b. Complaints must be filed within 180 days of an

alleged discriminatory act. 8 U.S.C. §1324b(d)(3). The special counsel investigates the charge

and, if warranted, files a complaint before an administrative law judge (ALJ), who decides the

case. The employee may file a complaint if the special counsel has not done so within 120 days

after receiving the charge.

Remedies include up to two years’ backpay, attorneys’ fees when the losing party’s argument

is frivolous, and civil fines of up to $2,000 for each individual discriminated against and $10,000

per individual for employers previously found liable more than once. 8 U.S.C. §1324b(g). Parties

have 60 days after the ALJ’s award to appeal to an appellate court. 8 U.S.C. §1324b(i).

2. Basic Procedures and Burdens of Proof at Trial

a. [5.17] Filing

Title VII and Americans with Disabilities Act claims must be filed first with the Equal

Employment Opportunity Commission. As discussed in §5.15 above, ADA claims brought under

Title I also must be filed with the EEOC; Title II claims apparently do not need to be so filed.

See, e.g., Winfrey v. City of Chicago, 957 F.Supp. 1014 (N.D.Ill. 1997) (public employees may

bypass Title I administrative procedures); Peterson v. University of Wisconsin Board of Regents,

818 F.Supp. 1276 (W.D.Wis. 1993) (exhaustion of EEOC remedies not required). Additionally,

under the Equal Pay Act, plaintiffs have the option of filing a charge with the EEOC. The

EEOC’s principal activity is to investigate charges of discrimination and to conciliate them if

possible. Persons claiming discrimination under Title VII, the Age Discrimination in

Employment Act, or the ADA must file a charge with the EEOC within 180 days of the alleged

act of discrimination. 42 U.S.C. §2000e-5(e). In Illinois, a state possessing parallel discrimination

laws and a work-sharing agreement with the EEOC, the limitations period is extended to the

earlier of 300 days after the alleged discrimination or 30 days after receiving notice that the state

agency has terminated its investigation. A person with an EPA claim may file a civil suit

immediately or rely on the EEOC to investigate the case, but an EPA claim must be filed no more

than two years (three if a willful violation) after the date of the violation. 29 U.S.C. §255(a).

In cases of hostile environment sexual harassment, as opposed to claims involving discrete

acts, the Supreme Court has endorsed a “continuing violation” theory, which provides that if a

plaintiff files a charge within 180 (or 300) days of an act that was part of the hostile work

environment, the charge is timely as to all acts, even those falling outside of the statutory time

period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106, 122 S.Ct.

2061 (2002).

Rehabilitation Act claims are not filed with the EEOC. The primary enforcement

responsibility for administering the Rehabilitation Act rests with the heads of the federal agencies

administering federal assistance, but they in turn are regulated by the Attorney General, who

coordinates enforcement activities and develops compliance standards. 29 U.S.C. §794. The

courts, however, have held that employees also have a private right of action to sue for violations

of the Rehabilitation Act. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir.

1977).

NOTE: The basic enforcement procedures and remedies under 42 U.S.C. §1983, 42 U.S.C.

§1981, and the Immigration Reform and Control Act are discussed in §§5.11, 5.12, and 5.16

above.

b. [5.18] EEOC Process

After receiving a charge from an aggrieved employee or any person filing on the employee’s

behalf, the Equal Employment Opportunity Commission serves a copy of the charge on the

employer. Currently, the EEOC offers the parties the opportunity, in lieu of an immediate

investigation, to engage in mediation before an EEOC mediator. The mediator could be an EEOC

employee not responsible for investigating charges, or an outside contract mediator. While the

EEOC’s mediation program has had some success in resolving charges and reducing the EEOC’s

heavy caseload, whether funding will be continued is always a question. If both sides are

agreeable to mediation, the investigation is continued until mediation takes place.

If mediation fails, or if one or both sides decline mediation, the EEOC will proceed to

investigate. The EEOC will request any information and documents relating to the claim from the

employer and will ask for a position statement giving the employer’s version of the alleged

violation. If the EEOC finds there is reasonable cause to believe the charge is true, it will first try

to resolve the issue through conciliation. 42 U.S.C. §2000e-5(b). If conciliation proves

unsuccessful, the EEOC may sue in federal district court against private employers. When

conciliation proves unsuccessful against a governmental agency or political subdivision, the case

is referred to the U.S. Attorney General (Department of Justice), who may then file suit. 42

U.S.C. §2000e-5(f).

Additionally, charging parties can file suit on their own behalf once certain prerequisites have

been met. In Americans with Disabilities Act and Title VII cases, charging parties may request a

“right-to-sue” letter 180 days after filing a charge with the EEOC provided the EEOC has not

entered into a conciliation agreement or the Attorney General has not already filed suit; in any

event, the EEOC will issue one if it dismisses the charge for any reason. 42 U.S.C. §2000e-5(f).

The charging party has 90 days in which to file suit after receiving the right-to-sue letter.

Originally, in Age Discrimination in Employment Act cases no right-to-sue letter was issued

or even required. The charging party had only to wait 60 days after filing the EEOC charge to file

suit. 29 U.S.C. §626(d). However, under the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat.

1071, when an ADEA charge filed with the EEOC is dismissed or otherwise terminated, the

EEOC must notify the charging party, who then has only 90 days after receiving the notice to file

suit. 29 U.S.C. §626(e).

State employees, however, generally have no right to bring suit against the state for violations

of the ADEA or ADA. The Supreme Court in Kimel v. Florida Board of Regents, 528 U.S. 62,

145 L.Ed.2d 522, 120 S.Ct. 631 (2000), a five-four opinion, held that the Eleventh Amendment

does bar individual suits against states under the ADEA. Similarly, on February 21, 2001, in

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 148 L.Ed.2d 866, 121 S.Ct.

955 (2001), the Supreme Court, in another five-four decision, ruled that individual employment

discrimination claims against state employers for monetary damages under Title I of the ADA

were barred by the Eleventh Amendment. These decisions paralleled decisions by the Supreme

Court prohibiting employees from suing states over violations of the Fair Labor Standards Act of

1938 (FLSA), 29 U.S.C. §201, et seq. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 134

L.Ed.2d 252, 116 S.Ct. 1114 (1996); Alden v. Maine, 527 U.S. 706, 144 L.Ed.2d 636, 119 S.Ct.

2240 (1999).

Note that states must still comply with the ADEA and ADA and are still subject to suit by the

federal government for violations of the ADEA, ADA, and any other federal employment laws.

Local government agencies, including municipalities, however, are not affected by cases like

Kimel and Garrett. They are still subject to private actions by employees to the extent permitted

under the ADEA and other federal employment laws.

The federalist trend was recently curtailed, however, when the Supreme Court found that

state employees may bring suit in federal court over violations of the Family and Medical Leave

Act of 1993 (FMLA), 29 U.S.C. §2601, et seq. Nevada Department of Human Resources v.

Hibbs, 538 U.S. 721, 155 L.Ed.2d 953, 123 S.Ct. 1972 (2003). Here the Court found Congress

properly relied on its power under §5 of the Fourteenth Amendment to abrogate state sovereign

immunity. The primary difference is that the FMLA aims to protect the right to be free from

gender-based discrimination in the workplace. State acts of gender discrimination, unlike

disability or age-based discrimination, are subject to a heightened standard of review under

constitutional equal protection standards. Given the difficulty of demonstrating the

constitutionality of a gender-based classification, Congress had a much lighter burden in

demonstrating state constitutional violations and thereby demonstrating the necessity of the

FMLA.

In response to this federalist trend, in 2004 the Illinois legislature amended the State Lawsuit

Immunity Act, 745 ILCS 5/0.01, et seq., to waive the state’s immunity from suit in federal court

for claims under the ADA, ADEA, Fair Labor Standards Act, FMLA, and Title VII of the Civil

Rights Act of 1964. 745 ILCS 5/1.5.

c. Burden of Proof at Trial

(1) [5.19] Title VII and ADEA

Persons alleging claims under Title VII or the Age Discrimination in Employment Act,

besides proving direct evidence of discrimination, may allege a prima facie case under either a

disparate treatment or a disparate impact theory. To allege a prima facie case of disparate

treatment, the plaintiff must show that

a. he or she is a member of a protected class (race, origin, sex, age);

b. he or she applied and was qualified for a job for which the employer was seeking

applicants;

c. despite his or her qualifications, he or she was rejected; and

d. after the rejection, the position remained open and the employer continued to seek

applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973).

The test is modified as necessary to accommodate the discriminatory act alleged.

Once the plaintiff has established a prima facie case, the employer must articulate some

legitimate, nondiscriminatory reason for its actions. The plaintiff then must show that the

employer actually discriminated or that its nondiscriminatory reasons were pretextual. The

burden, however, always remains with the plaintiff to prove that race or another protected factor

played a role in the employer’s decision. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981). Even if the plaintiff can convince a court that

an employer’s reasons for its actions were pretextual the plaintiff still must convince the court, for

example, that the employer engaged in illegal discrimination. St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993).

In disparate impact cases, a plaintiff alleges that regardless of the employer’s motives a

certain employer practice has an adverse impact on a protected group. In Smith v. City of Jackson,

Mississippi, 544 U.S. 228, 161 L.Ed.2d 410, 125 S.Ct. 1536 (2005), the U.S. Supreme Court

finally put to rest a split among the circuits and ruled that the ADEA supports claims of disparate

impact, just like Title VII. However, unlike Title VII, the ADEA allows employer actions that

would otherwise be discriminatory “where the differentiation is based on reasonable factors other

than age.” In the disparate impact context, this means that to be unlawful, the different treatment

of older workers must be attributable specifically to their age, not some other reasonable factor.

The Supreme Court further specified that the burden for employers defending against disparate

impact age claims is less than in Title VII cases. In Title VII, a business decision that adversely

impacts a protected group must be justified by “business necessity”. Under the ADEA, however,

an employer’s actions must only be “reasonable”; thus the employer is spared from proving that

there was no other way to meet its goal without adversely affecting the protected group.

(2) [5.20] Sexual harassment under Title VII

Sexual harassment that is so “severe or pervasive” as to alter the conditions of the victim’s

employment and create an abusive working environment violates Title VII. Meritor Savings Bank

v. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S.Ct. 2399, 2404 (1986). See Clark County School

District v. Breeden, 532 U.S. 268, 149 L.Ed.2d 509, 121 S.Ct. 1508 (2001) (single

sexually oriented comment does not constitute sexual harassment). To be actionable, a sexually

objectionable environment must be both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be

so. Harris v. Forklift Systems, Inc., 510 U.S. 17, 126 L.Ed.2d 295, 114 S.Ct. 367, 370 – 371

(1993).

An employer will be held liable for sexually harassing behavior by non-supervisors

(coworkers, customers, vendors, independent contractors, etc.) based on a negligence standard

that the employer knew or should have known about the harassment and took no prompt remedial

action. Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).

In 1998, the Supreme Court issued two landmark decisions that establish a uniform standard

for employer liability for sexual harassment by a supervisor under Title VII. Faragher v. City of

Boca Raton, 524 U.S. 775, 141 L.Ed.2d 662, 118 S.Ct. 2275 (1998); Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 141 L.Ed.2d 633, 118 S.Ct. 2257 (1998).

In Faragher and Ellerth, the Court used identical language to set forth that standard:

An employer is subject to vicarious liability to a victimized employee for an

actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee. When no tangible employment

action is taken, a defending employer may raise an affirmative defense to liability or

damages. . . . The defense comprises two necessary elements: (a) that the employer

exercised reasonable care to prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the employer or to avoid

harm otherwise. Faragher, supra, 118 S.Ct. at 2292 – 2293; Burlington, supra, 118

S.Ct. at 2261.

The crux of this holding is that an employer’s efforts at prevention and correction of sexual

harassment will be its main (and oftentimes only) practical and legal defenses to allegations of

Title VII sexual harassment by supervisory employees.

After Faragher and Ellerth, the following points are now clear:

a. Employers without well-disseminated sexual harassment policies and complaint

procedures will be automatically or “vicariously” liable for harassing conduct by supervisors.

Thus, every employer should have a policy prohibiting sexual harassment that complies in full

with these two decisions, as well as the Illinois Human Rights Act. Moreover, this policy must be

disseminated to all employees, employees and supervisors need to be trained regarding

harassment, and the policy must be actively enforced.

b. Employers will be vicariously liable for sexual harassment by supervisors, regardless of

the existence of a sexual harassment policy, if the harassment results in a “tangible job action.”

Such action includes a significant change in employment status, such as firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.

c. Employers with disseminated sexual harassment policies and complaint procedures have

an affirmative defense to claims of sexual harassment under Title VII that do not result in the

harassed employee suffering tangible job detriment. The employer bears the burden of proof on

the affirmative defense. Compare Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir. 2005)

(explaining that mere existence of sexual harassment policy and training do not, standing alone,

prove employer met first prong of Ellerth affirmative defense), with McPherson v. City of

Waukegan, 379 F.3d 430 (7th Cir. 2004) (city entitled to summary judgment on employee’s claim

of supervisory sexual harassment because it acted promptly once it was notified of harassment

and employee did not suffer adverse employment action).

d. Employers are liable for sexual harassment by non-supervisors (coworkers, customers,

vendors, and independent contractors) based on a negligence standard that the employer “knew or

should have known” of the harassment.

In Pennsylvania State Police v. Suders, 542 U.S. 129, 159 L.Ed.2d 204, 124 S.Ct. 2342

(2004), the Supreme Court further clarified Ellerth and Farragher law by holding that the

affirmative defense is available with respect to constructive discharge claims, in the absence of an

official company act precipitating the constructive discharge. Although not explicitly stated by

the Court, it appears that employers will be vicariously liable for all harassing conduct by the

highest level managers, regardless of whether the employer has a disseminated sexual harassment

policy and complaint procedure, the conduct resulted in tangible job detriment, or the employee

complained of the conduct.

(3) [5.21] Equal Pay Act of 1963

The Equal Pay Act itself sets forth what a plaintiff must prove and the employer’s possible

defenses. An EPA plaintiff must show that he or she is being paid less than members of the

opposite sex for equal work on jobs requiring (a) equal skill, (b) equal effort, (c) equal

responsibility, and (d) performance under similar working conditions. The employer can either

rebut the plaintiff’s case or demonstrate that the differential pay levels are based on (a) a seniority

system, (b) a merit system, (c) a system that measures earnings by quantity or quality of

production, or (d) any factor other than sex. 29 U.S.C. §206(d)(1).

(4) [5.22] ADA

The Americans with Disabilities Act explicitly adopts the procedures of Title VII. In terms of

alleging a prima facie case, direct, disparate treatment, and disparate impact theories all appear

available. 42 U.S.C. §12112; Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir.

1997) (holding that disparate impact theory is applicable to ADA). Although the ADA does not

specifically address how the burden of proof in a case will be allocated, most circuits have now

adopted the McDonnell Douglas (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d

668, 93 S.Ct. 1817 (1973)) burden of proof allocation, at least in disparate treatment cases. See,

e.g., DeLuca v. Winer Industries, Inc., 53 F.3d 793 (7th Cir. 1995) (assuming application of

McDonnell Douglas allocation is proper); Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996);

Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995). When the claim of discrimination

is not “disparate treatment” but failure to make reasonable accommodations, the Seventh Circuit

has found the McDonnell Douglas burden-shifting method of proof “unnecessary and

inappropriate.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 – 1284 (7th

Cir. 1996).

Employers can defend an ADA action by claiming that the employee poses a “direct threat”

to the health or safety of others or to the employee himself or herself. Chevron USA, Inc. v.

Echazabal, 536 U.S. 73, 153 L.Ed.2d 82, 122 S.Ct. 2045 (2002); 29 C.F.R. §1630.15(b)(2).

Direct threat considerations are whether (a) there is a significant risk of substantial harm; (b) the

risk can be eliminated or reduced by a reasonable accommodation; (c) the assessment of risk is

based on an individualized assessment of the employee’s present ability to perform essential job

functions; and (d) the assessment is based on the most current medical knowledge available. 29

C.F.R. §1630.2(r). There is conflict in the circuit courts as to who has the burden of proving

“direct threat.” Compare Branham v. Snow, 392 F.3d 896 (7th Cir. 2004) (holding that because it

is affirmative defense, burden of proving “direct threat” falls on employer), with Waddell v.

Valley Forge Dental Associates, Inc., 276 F.3d 1275 (11th Cir. 2001) (burden of proof on

plaintiff to prove he was not direct threat).

(5) [5.23] Rehabilitation Act

In order to allege a prima facie case of disparate treatment handicap discrimination under

§504 of the Rehabilitation Act the plaintiff may allege that

a. he or she is a “handicapped individual” as defined by the Rehabilitation Act;

b. he or she is otherwise qualified for the position sought;

c. he or she was excluded from the position sought by reason of the handicap; and

d. the position sought was part of a program or activity receiving federal financial

assistance. 29 U.S.C. §794; Doe v. New York University, 666 F.2d 761, 774 – 775 (2d

Cir. 1981); Holly v. City of Naperville, 603 F.Supp. 220 (N.D.Ill. 1985), aff’d, 861 F.2d

723 (7th Cir. 1988).

When the employer admittedly acted based on the plaintiff’s handicap, it may rebut the prima

facie case by presenting credible evidence that the job qualifications that made the handicapped

plaintiff unqualified are job related. The plaintiff then bears the ultimate burden of proving he or

she could perform the job. Doe, supra, 666 F.2d at 776 – 777. Additionally, the plaintiff may

allege that he or she could have performed the work with reasonable accommodation. The

employer can then respond by showing accommodation is impossible or that it would constitute

an “undue hardship.” There is still some confusion as to which party has the burden of persuasion

regarding reasonable accommodation. See the discussion in Overton v. Reilly, 977 F.2d 1190 (7th

Cir. 1992) (declining to reach burden of proof issue).

The Seventh Circuit has concluded that both the employer and employee bear responsibility

for determining the necessary accommodation because the Americans with Disabilities Act

regulations “envision an interactive process that requires participation by both parties.” Beck v.

University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). Cf. Barth v. Gelb,

2 F.3d 1180 (D.C.Cir. 1993) (plaintiff bears burden of both production and persuasion on issue of

reasonable accommodation), cert. denied, 114 S.Ct. 1538 (1994); Borkowski v. Valley Central

School District, 63 F.3d 131 (2d Cir. 1995) (burden of production placed on plaintiff; burden of

persuasion placed on defendant).

Regarding the ADA, however, the Supreme Court in U.S. Airways v. Barnett, 535 U.S. 391,

152 L.Ed.2d 589, 122 S.Ct. 1516 (2002), approved the court’s ruling that, to defeat an employer’s

motion for summary judgment, an employee need only show that the proposed accommodation

seems reasonable on its face. See, e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir.

2001) (plaintiff meets burden on reasonableness by showing that, “at least on the face of things,”

accommodation will be feasible for employer); Borkowski v. Valley Central School District, 63

F.3d 131 (2d Cir. 1995) (plaintiff satisfies “burden of production” by showing “plausible

accommodation”). It is then up to the defendant to show circumstances evidencing undue

hardship. See Reed, 244 F.3d at 258 (“undue hardship inquiry focuses on the hardships imposed

. . . ‘in the context of the particular [employer’s] operations’ ”); Borkowski, 63 F.3d at 138 (after

plaintiff makes initial showing, burden falls on employer to show that particular accommodation

“would cause it to suffer an undue hardship”).

d. [5.24] Right to Jury Trial

Provided part of the remedy being sought involves legal relief such as damages, plaintiffs are

generally entitled to a jury trial under Title VII, the Age Discrimination in Employment Act, the

Equal Pay Act, the Americans with Disabilities Act, and §504 of the Rehabilitation Act (29

U.S.C. §794).

e. [5.25] Remedies

Generally, Title VII and the Americans with Disabilities Act now provide courts with the

discretion to award backpay, reinstatement, compensatory damages, limited punitive damages,

attorneys’ and expert witnesses’ fees, and equitable relief — including injunctions to end

discriminatory practices. 42 U.S.C. §§1981a, 2000e-5(g), 12117. Punitive damages, however, are

not available in suits against governments and their political subdivisions. 42 U.S.C. §1981a. The

Civil Rights Act of 1991 places caps on the amount of compensatory (and punitive damages for

private sector employers) available to a plaintiff, depending on the size of the business or agency.

42 U.S.C. §1981a(a)(1). However, the statute provides that the complaining party may recover

such damages in addition to any relief authorized by §706(g) of the Civil Rights Act of 1964. The

Supreme Court has interpreted this language to mean that front pay, not an element of

compensatory damages, is not subject to the damages cap. Pollard v. E.I. duPont de Nemours &

Co., 532 U.S. 843, 150 L.Ed.2d 62, 121 S.Ct. 1946 (2001).

Backpay and reinstatement are available for claims under §504 of the Rehabilitation Act. 29

U.S.C. §794; Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 79 L.Ed.2d 568, 104 S.Ct. 1248

(1984). In Barnes v. Gorman, 536 U.S. 181, 153 L.Ed.2d 230, 122 S.Ct. 2097 (2002), the U.S.

Supreme Court resolved a court split and found that punitive damages are not a potential remedy

for plaintiffs who bring suit for violations of §202 of the ADA, which prohibits discrimination

against the disabled by public entities, and §504 of the Rehabilitation Act. In reaching that

decision the Court indicated that recipients of federal funding subject to §504 generally were on

notice only to those remedies specifically provided for by the relevant legislation and, of course,

those remedies traditionally available in suits for breach of contract such as compensatory

damages and injunctive relief. Attorneys’ fees are available.

The Age Discrimination in Employment Act and the Equal Pay Act allow plaintiffs to

recover backpay and, if warranted, liquidated damages for willful violations. 29 U.S.C. §§260,

626(b). Violations are willful when they result from intentional conduct or from reckless

disregard of the consequences. Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir. 1980). In

ADEA cases, the Supreme Court has held that a violation is willful when “the employer knew or

showed reckless disregard for the matter of whether its conduct was prohibited.” Hazen Paper

Co. v. Biggins, 507 U.S. 604, 123 L.Ed.2d 338, 113 S.Ct. 1701, 1708 (1993); Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 83 L.Ed.2d 523, 105 S.Ct. 613, 624 (1985).

Of course, equitable relief (like reinstatement) also is available under the ADEA and the

EPA, as are reasonable attorneys’ fees. 29 U.S.C. §216(b); 29 C.F.R. §1620.33. In terms of

punitive damages, however, courts generally have held that punitive damages are not available

under the ADEA. Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir.), cert. denied, 103 S.Ct.

453 (1982). Similarly, punitive damages have been held to be unavailable in EPA cases, with one

exception: punitive damages may be available under the retaliation provisions of the EPA. Soto v.

Adams Elevator Equipment Co., 941 F.2d 543 (7th Cir. 1991).

C. Illinois Human Rights Act

1. [5.26] Prohibited Discrimination

The Illinois Human Rights Act, 775 ILCS 5/1-101, et seq., makes it unlawful for employers

“to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of

employment, selection for training or apprenticeship, discharge, discipline, tenure or terms,

privileges or conditions of employment on the basis of unlawful discrimination or citizenship

status.” IHRA §2-102(A). “ ‘Unlawful discrimination’ means discrimination against a person

because of his or her race, color, religion, national origin, ancestry, age, sex, marital status,

handicap, military status, sexual orientation, or unfavorable discharge from military service.”

IHRA §1-103(Q). The IHRA also prohibits immigration-related practices similar to those

prohibited by the IRCA and inquiries into expunged or sealed criminal records as well as arrest

records. IHRA §2-103(A). However, public employers may examine conviction information

properly obtained from the state. IHRA §§2-102(G), 2-103. Both public and private employers

are barred from imposing a restriction that has the effect of prohibiting the speaking of a language

by an employee that is unrelated to the employee’s job duties. IHRA §2-102(A-5). In addition,

sexual harassment is specifically prohibited. IHRA §2-102(D).

The IHRA prohibits public employers from refusing to permit an employee who takes time

off in order to practice religious beliefs to make up the work “during hours other than such

employee’s regular working hours, consistent with the operational needs of the employer and in

order to compensate for work time lost for such religious reasons.” IHRA §2-102(E). The

employee must be paid at the rate he or she would have received, but the employer does have the

right to require up to five days’ notice before the employee’s intended absence.

Effective August 16, 2004, P.A. 93-0941 amended the IHRA to include reservists and

National Guard members in its protection against discrimination on the basis of military status.

775 ILCS 5/1-103(J-1).

Also, effective January 1, 2006, in P.A. 93-1078, the Illinois legislature amended the IHRA

to include “sexual orientation” among its protected categories for employment purposes. IHRA

§2-102(A). The law covers discrimination based on both actual and perceived sexual orientation.

It bars discrimination in the workplace, housing, public accommodations, and access to financial

credit. “Sexual orientation” is defined as including “actual or perceived heterosexuality,

homosexuality, bisexuality, or gender identity.” However, sexual orientation expressly does not

include physical or sexual attraction to a minor by an adult.

As discussed in §5.10 above, Illinois has adopted age-based hiring and retirement exemptions

for law enforcement officers that parallel those of the Age Discrimination in Employment Act.

2. [5.27] Special IHRA Rules for Parties to Public Contracts

The Illinois Human Rights Act has special rules for “parties to public contracts.” What is

meant by “parties to public contracts” is unclear. Officials from the Illinois Department of Human

Rights have in the past taken the position that these provisions apply to the recipients of public

contracts rather than the contracting agencies themselves. Nevertheless, the officials also note that

local governments often are the recipients of “public contracts,” which the IDHR broadly defines

to include grants and other forms of financial assistance. In other words any municipality or other

governmental entity planning on receiving state grants or financial assistance or being the

recipient of other public contracts should comply with these rules.

Parties to a public contract must (a) refrain from unlawful discrimination and undertake

affirmative action to assure equality of employment opportunity to eliminate the effects of past

discrimination, (b) comply with IDHR regulations concerning equal employment opportunities

and affirmative action, and (c) provide information and assistance as requested by the IDHR.

Finally, every party to a public contract must possess a written sexual harassment policy

containing specific information required by IHRA §2-105. The IHRA requires that a sexual

harassment policy contain, at a minimum, the following information: (a) a statement explaining

that sexual harassment is illegal; (b) the definition of sexual harassment under state law; (c) a

description of sexual harassment, utilizing examples; (d) the employer’s internal complaint

process, including penalties; (e) the legal recourse, investigative, and complaint process available

through the IDHR and the Illinois Human Rights Commission (HRC); (f) the directions on how

to contact the IDHR and the HRC; and (g) a statement of protection against retaliation as

provided by IHRA §6-101. Any sexual harassment policy lacking this information technically

does not meet the IHRA’s requirements for obtaining public contracts. (The IHRA specifically

imposes similar requirements on state agencies, as well as additional requirements such as

specific posting and distribution requirements, a requirement that the harassment policy not

exceed “the 6th grade literacy level,” a requirement that agencies provide sexual harassment

training, and a requirement that state agencies provide 30 days’ notice of layoffs.)

3. Procedures and Burdens of Proof Under IHRA

a. [5.28] Pattern and Practice Cases

Effective August 24, 2004, P.A. 93-1017 allows the Illinois Attorney General to bring pattern

and practice lawsuits under the Illinois Human Rights Act. See 775 ILCS 5/10-104. The Attorney

General has had the authority to do this for housing discrimination suits, and P.A. 93-1017 now

extends the authority to include suits for employment discrimination, public accommodations,

and financial credit. These enforcement actions can be brought directly in circuit court, without

first filing a charge of discrimination, and the statute of limitations on such actions is two years.

b. [5.29] Procedure Before Department of Human Rights

The procedure developed for investigating and resolving human rights complaints under the

Illinois Department of Human Rights is similar to that under the Equal Employment Opportunity

Commission. Persons claiming discrimination must file a charge with the IDHR within 180 days

after a violation allegedly occurred. Illinois Human Rights Act §7A-102(A). The IDHR serves a

copy of the charge on the employer, who must file a verified (sworn) response to the allegations.

IHRA §7A-102(B). The complainant has a right to reply to the response. The IDHR will then

investigate the charge and hold a fact-finding conference with the parties.

Similar to the EEOC, the IDHR must determine whether substantial evidence of a violation

exists. If it finds that no substantial evidence exists, the charge is dismissed. The complainant,

however, has 30 days to appeal the dismissal to the Illinois Human Rights Commission. If it finds

substantial evidence, however, the IDHR will attempt first to resolve the violation through

conciliation. IHRA §7A-102. If conciliation fails, the IDHR may file a complaint with the HRC.

NOTE: Certain 1996 amendments to the IHRA, which modified the manner in which appeals of

claims dismissed by the IDHR are handled, have been challenged on constitutional due process

grounds. On November 15, 1999, the Seventh Circuit upheld the issuance of a preliminary

injunction requiring the IDHR to return to using its pre-1996 appeal procedures. Cooper v.

Salazar, 196 F.3d 809 (7th Cir. 1999). The three 1996 changes at issue are (1) having the IDHR’s

Chief Legal Counsel rather than the HRC conduct the initial review of dismissals for lack of

substantial evidence; (2) having credibility determinations made by the IDHR during the informal

investigation process rather than by an administrative law judge at a formal HRC hearing; and (3)

denying claimants access to the full investigation file and witness statements until the IDHR’s

counsel has rendered a final decision at the initial level of review. With regard to the initial

challenged issue, for which the plaintiffs in Cooper did not seek a preliminary injunction, several

Illinois courts have upheld having the chief legal counsel rather than the HRC review

discrimination claim dismissals. See Willis v. Illinois Department of Human Rights, 307

Ill.App.3d 317, 718 N.E.2d 240, 240 Ill.Dec. 759 (4th Dist. 1999); Anderson v. Modern Metal

Products, 305 Ill.App.3d 91, 711 N.E.2d 464, 238 Ill.Dec. 361 (2d Dist. 1999); Folbert v.

Department of Human Rights, 303 Ill.App.3d 13, 707 N.E.2d 590, 236 Ill.Dec. 463 (1st Dist.

1999).

c. [5.30] Time Limits on Filing a Complaint with HRC

Theoretically, the Illinois Department of Human Rights must decide whether to issue a

complaint or dismiss the charge within 365 days (formerly 300 days) of its being filed. Illinois

Human Rights Act §7A-102(G). If no decision has been made, the complainant has 30 days from

the end of that 365-day period to file a complaint with the Illinois Human Rights Commission —

unless the IDHR reaches a decision first. See Wallace v. Human Rights Commission, 261

Ill.App.3d 564, 633 N.E.2d 851, 199 Ill.Dec. 55 (1st Dist. 1994) (employee’s HRC complaint

untimely even though filed during 30-day window period following expiration of 30-day IDHR

complaint period because IDHR’s dismissal of claim 316 days after it was filed occurred before

employee’s HRC complaint). Previously, the HRC and the courts had held that the IDHR’s 365-

day limit on deciding to file a complaint was not mandatory. Therefore, even if the complainant

waived the right to sue in the 30-day window period, the IDHR could still file a complaint. On-

Line Financial Services, Inc. v. Illinois Department of Human Rights, 228 Ill.App.3d 99, 592

N.E.2d 509, 170 Ill.Dec. 73 (1st Dist. 1992); Wildwood Industries v. Illinois Human Rights

Commission, 220 Ill.App.3d 12, 580 N.E.2d 172, 162 Ill.Dec. 546 (4th Dist. 1991). Under the

IHRA as amended, however, the IDHR must cease its investigation and dismiss the charge if (1)

the aggrieved party files a complaint in the 30-day window period 365 days after the charge was

filed or (2) the time period for filing a complaint has expired. P.A. 89-370, §5.

d. [5.31] Complaints Before HRC

Unlike federal discrimination cases, human rights complaints are filed with an administrative

agency, the Illinois Human Rights Commission, rather than the courts. The procedures —

complaint, response, discovery, dispositive motions, trial, etc. — parallel those of a court. Illinois

Human Rights Act §8A-102. The complaint is heard by a hearing officer who, after a hearing and

the filing of post-hearing briefs, issues a recommended order and decision.

Either party may file exceptions to the hearing officer’s decision with the HRC. A threemember

HRC panel will then decide whether to adopt, modify, or reverse the decision. IHRA

§8A-103. The HRC, however, must adopt the hearing officer’s findings of fact if they are not

contrary to the manifest weight of the evidence. Either party may then move for a hearing before

the full HRC, which will be granted only upon a clear demonstration that the matter raises legal

issues of significant impact or that three-member panel decisions are conflicting. In an effort to

speed the final resolution of complaints, the IHRA was amended to provide the parties the option

of agreeing to an alternative hearing procedure in which discovery is limited, the parties agree on

the hearing officer, and the decision of the hearing officer selected is final and unappealable

(except in cases of fraud or duress). IHRA §8A-102.5. The HRC also encourages the parties to

pursue mediation or arbitration through the Center for Employment Dispute Resolution as an

alternative to traditional HRC procedures.

e. [5.32] Burden of Proof

As in federal discrimination cases, at all times the complainant has the burden of proving

discrimination either by direct evidence or by alleging a prima facie case of disparate treatment or

impact. Zaderaka v. Illinois Human Rights Commission, 131 Ill.2d 172, 545 N.E.2d 684, 137

Ill.Dec. 31 (1989). For example, once a prima facie case of disparate treatment discrimination

based on McDonnell Douglas (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d

668, 93 S.Ct. 1817 (1973)) criteria has been established, the employer must articulate a legitimate

reason for its actions, which will shift the burden of production back to the complainant to prove

pretext. Zaderaka, supra. Disparate impact cases also parallel federal cases. Similarly, cases

alleging sex-based pay discrimination are analyzed under tests similar to that of federal Equal Pay

Act cases. McCullar v. Human Rights Commission, 158 Ill.App.3d 1011, 511 N.E.2d 1375, 111

Ill.Dec. 80 (4th Dist. 1987); In re Sedlack & Suburban Bank of Bartlett, 48 Ill.H.R.C.Rep. 367,

377 (1989).

For handicap discrimination cases, a complainant must allege that (1) he or she is

handicapped within the definition of the Illinois Human Rights Act, (2) the handicap is unrelated

to his or her ability to perform the functions of the job, and (3) an adverse job action related to the

handicap was taken against him or her. Habinka v. Human Rights Commission, 192 Ill.App.3d

343, 548 N.E.2d 702, 720, 139 Ill.Dec. 317 (1st Dist. 1989). Additionally, the regulations indicate

that employers have an affirmative duty to reasonably accommodate handicapped individuals

once they have asked for accommodation or if a potential accommodation is obvious. 56

Ill.Admin. Code §§2500.40(c), 2500.40(d). In a refusal-to-accommodate case, the burden will be

on the employer to show that (1) the person would still be unqualified with the accommodation,

(2) accommodation would be prohibitively expensive or would unduly disrupt the conduct of the

business, or (3) another exception applies (such as the employer is not required to hire two

employees to do the job of one). 56 Ill.Admin. Code §2500.40(d).

f. [5.33] Appeals to Courts

A party may apply for and obtain judicial review of a final Illinois Human Rights

Commission order provided the party files a petition with the proper appellate court within 35

days of the order. The court, however, must sustain findings of fact unless they are contrary to the

manifest weight of the evidence. Illinois Human Rights Act §8-111.

g. [5.34] Remedies

The Illinois Human Rights Commission possesses broad remedial powers. Upon finding a

violation, the HRC may “[t]ake such action as may be necessary to make the individual

complainant whole, including, but not limited to” awarding actual damages, backpay,

reinstatement or hiring, front pay, interest on damages, and attorneys’ fees. Illinois Human Rights

Act §8A-104(J).

4. [5.35] Relationship Between State and Federal Discrimination Statutes and

Procedures

The Equal Employment Opportunity Commission has a work-sharing provision with the

Illinois Department of Human Rights by which charges filed with the IDHR will be cross-filed

with the EEOC but investigated by the IDHR. Agency determinations that have been reviewed by

a state court may be res judicata with respect to federal claims that were or could have been raised

during the state proceedings. Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L.Ed.2d

262, 102 S.Ct. 1883 (1982). Unreviewed decisions, however, are not entitled to preclusive effect

in federal court actions under Title VII or the Age Discrimination in Employment Act. Astoria

Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 115 L.Ed.2d 96, 111 S.Ct. 2166 (1991).

Under most conditions, factual determinations of the Illinois Human Rights Commission are

entitled to the same preclusive effect they would receive in state court. University of Tennessee v.

Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220, 3226 (1986).

D. Other Discrimination Acts

1. [5.36] Religious Freedom Restoration Act

The Religious Freedom Restoration Act, 775 ILCS 35/1, et seq., provides that a state or local

government may not substantially burden a person’s exercise of religion, even if the burden

results from a rule of general applicability, unless it demonstrates that application of the burden to

the person (a) is in furtherance of the compelling government interest and (b) is the least

restrictive means of furthering that compelling government interest.

2. [5.37] Illinois Civil Rights Act of 2003

The Illinois Civil Rights Act of 2003, 740 ILCS 23/1, et seq., prohibits units of state, county

or local government from (1) excluding a person from participation in, denying a person the

benefits of, or subjecting a person to discrimination under any program or activity on the grounds

of that person’s race, color, or national origin; or (2) utilizing criteria or methods of

administration that have the effect of subjecting individuals to discrimination because of their

race, color, or national origin. A party aggrieved by conduct in violation of the Illinois Civil

Rights Act may bring suit in state court against the unit of government. Penalties for intentional

violations of the Act include actual and punitive damages, as well as attorneys’ fees and costs.

When the criteria and methods of administration have “the effect” of subjecting individuals to

discrimination, a violation of §5(a)(2) of the Act, the unit of government is liable for actual

damages as well as attorneys’ fees and costs. Though the Act does not expressly reference

employment, plaintiffs seeking direct access to state court and the possibility for damages not

otherwise available in employment discrimination cases may argue that a court should read it

broadly enough to consider employment or employment benefits as a “program or activity”

covered by the Act.

3. [5.38] Illinois Equal Pay Act

The Illinois Equal Pay Act of 2003 (Illinois EPA), 820 ILCS 112/1, et seq., expands the

federal Equal Pay Act to public and private employers with four or more employees. The Illinois

EPA prohibits such employers from paying different wages to employees of the opposite sex for

the same or substantially similar work on jobs that require the same skill, effort, and

responsibility solely on the basis of the employees’ genders. Wage differences between male and

female employees for the same work on the basis of seniority, merit, or another factor other than

gender are allowed. Employers are not required to pay workers performing the same job in

different counties the same wages. The Illinois EPA also contains an anti-retaliation provision.

Within three years after the employee discovers an underpayment allegedly based on sex, either

the employee or the Illinois Department of Labor can sue the employer for violation of the Illinois

EPA. Employers found guilty of pay discrimination under the Illinois EPA will be required to pay

the wage difference to the affected employee and to pay the employee’s legal costs and could face

a fine of up to $2,500 per violation. An employee prevailing under the anti-retaliation provisions

can recover lost benefits, front pay, backpay, and liquidated damages.

4. [5.39] Local Ordinances

Several Illinois municipalities have adopted local ordinances prohibiting various types of

discrimination. Often, these acts are much broader than either state or federal law. Section 7-108

of the Illinois Human Rights Act specifically permits local ordinances to be broader in scope than

state law and makes provisions for cases involving concurrent jurisdiction.

5. [5.40] Other Acts

The list of antidiscrimination laws provided in §§5.36 – 5.39 above is by no means exclusive.

For example, the Illinois Public Labor Relations Act prohibits discrimination based on the

employee’s exercise of rights guaranteed by that Act (to organize, bargain collectively, etc.).

Also, other federal and state laws provide protections for returning veterans, disabled veterans,

persons engaging in political activities, persons filing workers’ compensation claims, etc. Several

of these laws are discussed in §§5.41 – 5.52 below. However, these laws are also not allinclusive.

IV. CONSTITUTIONAL RIGHTS

A. [5.41] Introduction and Scope

Unlike most private sector employees, public employees often have federal and state

constitutional rights protecting them against various employer actions — from being tested for

drugs to being discharged without procedural due process. The potential applications of

constitutional protections against various employer actions are too broad and complex for a

thorough analysis in this chapter. Instead, certain issues that often affect public employers are

addressed: an employee’s procedural “due process” protections and selected privacy issues. State

constitutional issues are not addressed because, for the most part, they parallel federal

constitutional rights.

B. [5.42] Fourteenth Amendment Right to Due Process

Constitutional due process issues often come into play when an employer disciplines or

discharges an employee. Increasingly, employees bring due process claims for other employer

actions as well. As provided by the Fourteenth Amendment, §1, of the United States Constitution:

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Employers who deprive employees of a “property interest” in their employment or interfere in

some type of “liberty interest” must provide proper procedural protections.

1. [5.43] What Constitutes a Property Interest?

Public employment can constitute a “property interest” subject to constitutional protections

when, through statute, ordinance, contract, or employer promises, an employee has a reasonable

expectation of continued employment or some other benefit of which he or she now claims a

deprivation. If an employee can demonstrate the existence of a property interest and that he or she

was deprived of that interest, the employee will have a claim, provided that the employer failed to

provide “due process.” In many respects, due process claims are similar to breach of contract

claims.

Three U.S. Supreme Court cases illustrate how and when a property interest in employment is

created. In Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694, 2698 – 2699

(1972), a teacher who learned his tenth one-year employment contract would not be renewed

alleged that the college, by custom, by practice, and through policy statements encouraging

faculty to feel they had permanent tenure, created a property interest in continued employment

that it deprived him of without due process. Finding the teacher was entitled to prove his claim of

a property deprivation without due process, the Court stated that a protectable property interest

could be created by a contract and that such a contract could even be an implied contract created

by the employer’s words and conduct. 92 S.Ct. at 2698 – 2700. Compare this to the Court’s

decision on the same day in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d

548, 92 S.Ct. 2701, 2709 (1972), finding that an employee whose express one-year contract was

not renewed had “absolutely no interest in re-employment for the next year” when the contract

had no renewal provisions and no state law or university policy created any legitimate expectation

in continued employment.

In Board of Education of Paris Union School District No. 95 v. Vail, 466 U.S. 377, 80

L.Ed.2d 377, 104 S.Ct. 2144 (1984), an equally divided Court upheld a Seventh Circuit finding

that a school that enticed a coach to leave his job of ten years and move to the district to take a

one-year position with “assurances” of a one-year extension deprived the coach of a property

interest without due process of law when it summarily refused to grant the extension. The

Seventh Circuit had found that the coach relied on the school’s promises and had a legitimate

expectation of continued employment. Vail v. Board of Education of Paris Union School District

No. 95, 706 F.2d 1435, 1440 (7th Cir. 1983). The Supreme Court agreed despite Seventh Circuit

Judge Posner’s claims that contract rights are not property within the meaning of the Fourteenth

Amendment.

Illinois courts have heard a vast assortment of property deprivation claims involving various

ways a property interest could be created. Although public employees have no presumptive

property interest in their positions, courts have found such interests can be created by state

constitutions, state statutes, municipal ordinances, employment contracts, policy manuals, or

employer statements. See, e.g., Hudson v. Chicago, 374 F.3d 554 (7th Cir. 2004) (nonprobationary

Chicago police officers have property interest in continued employment); Domiano

v. Village of River Grove, 904 F.2d 1142 (7th Cir. 1990) (reappointed fire chief had one-year

property interest in employment based on village ordinance); Misek v. City of Chicago, 783 F.2d

98 (7th Cir. 1986) (civil service law’s “cause” limitations on discharge created property interest

in continued employment); Nowak v. City of Calumet City, 648 F.Supp. 1557 (N.D.Ill. 1986)

(police department’s just cause discharge rules created protectable interest); Petersen v. Board of

Regents of Regency University System, 623 F.Supp. 235 (N.D.Ill. 1985) (college practice plus

collective bargaining agreement created property interest).

Despite the laundry list of acts that could result in the creation of a property interest in

employment, it is important to remember that such interests are created only if the acts actually

create a reasonable, legitimate expectation, for example, in continued employment. Unilateral,

unreasonable expectations of an employee are insufficient. See, e.g., Hohmeier v. Leyden

Community High Schools District 212, 954 F.2d 461 (7th Cir. 1992) (school board’s secret,

nonbinding termination policy for supervisors did not create property interest in employment for

employees); Santella v. City of Chicago, 936 F.2d 328 (7th Cir. 1991) (no mutually agreed-to

entitlement to job classification found when city official making such assurances lacked authority

to do so as specifically stated in city personnel rules); Lee v. County of Cook, 862 F.2d 139 (7th

Cir. 1988) (written progressive discipline system and oral assurance held not specific enough to

create expectation of just-cause dismissal). Moreover, procedural entitlements alone have not

been held to be a protectable interest and, in any event, do not create a right to just-cause

dismissals. See, e.g., Campbell v. City of Champaign, 940 F.2d 1111 (7th Cir. 1991) (discharge

without being afforded employee handbook’s progressive discipline procedures held not denial of

protected interest); Ratajack v. Board of Fire & Police Commissioners of City of Calumet City,

729 F.Supp. 603, 605 – 607 (N.D.Ill. 1990) (no property interest in place on eligibility list). See

also Moore v. Muncie Police & Fire Merit Commission, 312 F.3d 322 (7th Cir. 2002) (plaintiff’s

unsubstantiated claim of mutually explicit understanding with fire commission regarding future

employment as firefighter did not create property interest in future employment).

Although the majority of due process deprivation cases involve employee discharges,

employees have brought claims alleging other property deprivations — occasionally with success.

For example, Seventh Circuit district courts have found that a suspension deprives an employee

of due process when the employee has a property interest in continued employment. Golbeck v.

City of Chicago, 782 F.Supp. 381 (N.D.Ill. 1992) (three-day suspension of police captain without

due process held deprivation because suspension was not de minimis); Jones v. Doria, 767

F.Supp. 1432 (N.D.Ill. 1991) (temporary suspension). In Listenbee v. City of Milwaukee, 976

F.2d 348, 353 – 354 (7th Cir. 1992), however, the court held that a suspension did not deprive an

employee of a property interest since she possessed an interest in “continued” employment rather

than “continuous” employment. In Jones v. City of Gary, 57 F.3d 1435 (7th Cir. 1995), the court

distinguished the analysis in Listenbee by noting that it was limited to the specific Wisconsin

statute provision involved and the circumstances of the plaintiff’s suspension. The court observed

that the statute in Listenbee provided that a civil service employee could be suspended, for cause,

for up to 15 days without a hearing. The plaintiff in Listenbee was suspended for 10 days and was

therefore not entitled to a hearing. In contrast, the statute in Jones required just cause for any

suspension and specifically granted a firefighter the right to a hearing. Thus, it appears that a

suspension can deprive an employee of a property interest, depending on the circumstances.

Employees also have had mixed success alleging property rights in various disability and

other employment benefits cases. See, e.g., Schroeder v. City of Chicago, 927 F.2d 957 (7th Cir.

1991) (firefighters’ disability statute held not to create legally enforceable property right on

entitlement to timely payments); Cholewin v. City of Evanston, 899 F.2d 687 (7th Cir. 1990)

(under Public Employee Disability Act, 5 ILCS 345/0.01, et seq., police officer injured in line of

duty acquires property interest in receiving full pay for as long as officer is injured, up to one

year); Caauwe v. Police Pension Board of Village of Midlothian, 216 Ill.App.3d 313, 576 N.E.2d

1078, 160 Ill.Dec. 124 (1st Dist. 1991) (pensions or annuity benefits of employees not property

rights entitled to due process protection until they vest); Saffold v. City of Chicago, 775 F.Supp.

1126 (N.D.Ill. 1991) (forfeiture of vacation time; court dismissed on grounds plaintiff failed to

establish municipal liability under 42 U.S.C. §1983); Altman v. Hurst, 734 F.2d 1240 (7th Cir.)

(no property interest in non-suspension punishment; even assuming property interest in vacation

time, proper process given), cert. denied, 105 S.Ct. 385 (1984); Brown v. Brienen, 722 F.2d 360

(7th Cir. 1983) (refusal to permit taking of compensatory time decided on grounds process was

proper even if property right existed).

It is important to note, however, that job applicants generally have no legitimate expectation

of employment sufficient to create a property interest (Dziewior v. City of Marengo, 715 F.Supp.

1416 (N.D.Ill. 1989)), and most public employment laws, policies, and ordinances expressly

permit employers to discharge probationary employees for any reason (Davis v. City of Chicago,

841 F.2d 186 (7th Cir. 1988); Fontano v. City of Chicago, 820 F.2d 213 (7th Cir. 1987)).

2. [5.44] What Constitutes a Liberty Interest?

Employers also may inadvertently deprive employees of a constitutionally protected “liberty

interest” without providing due process of law. Liberty interests include First Amendment rights

such as political expression, speech, or association as well as numerous “privacy rights.” Some of

these subjects are addressed in sections devoted exclusively to them. See §§5.46 – 5.52 below.

The major liberty interests discussed in this section are the liberty interest to contract and to

engage in “any of the common occupations of life,” of which one may be deprived by an injury to

one’s reputation. This issue often arises during employee dismissals.

Although the Supreme Court has held that an individual’s interest in his or her reputation

alone is not a constitutionally protected “liberty interest” (Paul v. Davis, 424 U.S. 693, 47

L.Ed.2d 405, 96 S.Ct. 1155 (1976)), an injury to one’s reputation may result in the deprivation of

one’s liberty interest to engage in contracts or work in his or her profession. The employer’s

reputation-damaging comments, however, must be stigmatizing:

The State, in declining to rehire the respondent, did not make any charge

against him that might seriously damage his standing and associations in his

community. It did not base the nonrenewal of his [employment] contract on a

charge, for example, that he had been guilty of dishonesty, or immorality. Had it

done so, this would be a different case. For “where a person’s good name,

reputation, honor, or integrity is at stake because of what the government is doing to

him, notice and an opportunity to be heard are essential.” [Citation omitted.] Board

of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701, 2707

(1972).

Codd v. Velger, 429 U.S. 624, 51 L.Ed.2d 92, 97 S.Ct. 882 (1977) (although liberty claim was

dismissed because employee did not challenge truth of employer’s statements, Court discussed

“stigma”).

In order to demonstrate an unconstitutional impairment of a liberty interest due to damage to

one’s reputation, an employee generally must demonstrate that

a. the employee was stigmatized by untrue statements;

b. the stigma was a result of a tangible change in status (such as a discharge);

c. the employer made the charges public;

d. the employee suffered a tangible loss of other employment opportunities as a result of

their public disclosure; and

e. the employee was deprived of a liberty interest without “due process,” i.e., usually a

meaningful hearing to permit the employee to clear his or her name (discussed in §5.45

below). Johnson v. Martin, 943 F.2d 15 (7th Cir. 1991).

See also Wells v. Doland, 711 F.2d 670, 676 (5th Cir. 1983) (not listing tangible loss requirement

as element). If the employee cannot prove the first four elements, due process is not even

required.

For example, if what an employer says about an employee is true, no matter how damaging

the statements are, no liberty interest has been damaged. Codd, supra, 97 S.Ct. at 883 – 884.

Also, the published information must be sufficiently stigmatizing, i.e., the remarks must be so

stigmatizing as to make the employee effectively unemployable in his or her line of work or

otherwise bar the employee from an entire class of opportunities. Yatvin v. Madison Metropolitan

School District, 840 F.2d 412, 417 (7th Cir. 1988) (statement that employee lacks experience is

not stigmatizing); Dziewior v. City of Marengo, 715 F.Supp. 1416 (N.D.Ill. 1989) (discussing

stigma). Thus, employees able to find alternative employment will have difficulty alleging the

deprivation of a liberty interest. Johnson, supra, 943 F.2d at 16 – 17. In fact, the Seventh Circuit

requires that an employee demonstrate that he has suffered a tangible loss of other job

opportunities due to the published information.

Moreover, courts have held that the stigmatizing publication of information must come in the

context of the unfavorable employment decision. Thus, the following comments have been

considered insufficient to support a constitutional claim: (a) comments made in an unfavorable

reference for a former employee (Siegert v. Gilley, 500 U.S. 226, 114 L.Ed.2d 277, 111 S.Ct.

1789 (1991)); (b) comments made after a discharge (as opposed to in the course of discharging

the employee) (Laureano-Agosto v. Garcia-Caraballo, 731 F.2d 101, 104 (1st Cir. 1984)); (c)

comments first published during a post-discharge hearing (Lentsch v. Marshall, 741 F.2d 301,

304 (10th Cir. 1984)); (d) comments made after the employee had filed suit (Shlay v.

Montgomery, 802 F.2d 918 (7th Cir. 1986)); and (e) comments made during a lawsuit two years

after the discharge (Hadley v. County of DuPage, 715 F.2d 1238 (7th Cir. 1983), cert. denied, 104

S.Ct. 1000 (1984)).

Last and perhaps most important, the employer must have published the stigmatizing

information. See, e.g., Ratliff v. City of Milwaukee, 795 F.2d 612, 626 (7th Cir. 1986) (failure to

prove sufficient publication to reach future employers). Besides the actual publication or

disclosure of stigmatizing information, some courts have found that the public disclosure

requirement can be satisfied if there is a “likelihood” of public disclosure, such as if stigmatizing

information is placed in a personnel file that could eventually be made public. See, e.g., Brandt v.

Board of Cooperative Educational Services, Third Supervisory District, 820 F.2d 41, 43 – 45 (2d

Cir. 1987) (public disclosure requirement met when information was placed in employee’s

personnel file). The Seventh Circuit, however, has rejected this theory. The mere existence of

damaging information in an employee’s personnel file, “a time bomb waiting to explode,” cannot

give rise to a due process challenge until it is actually disclosed or “detonates.” Johnson, supra,

943 F.2d at 17 (no violation when damaging information in personnel file had not been

disclosed); Clark v. Maurer, 824 F.2d 565, 566 (7th Cir. 1987) (no publication when names of

employees were not even in press release announcing discharge and stigmatizing information in

personnel file had yet to be disclosed); Ceko v. Martin, 753 F.Supp. 1418 (N.D.Ill. 1990)

(personnel files not made available to prospective employers). The Personnel Record Review Act,

820 ILCS 40/0.01, et seq., which places notice requirements on employers disclosing files,

probably does not sufficiently dispose of this issue. Cf. Wefel v. Rockwood R-6 School District,

779 F.Supp. 468 (E.D.Mo. 1991) (no publication when state law prohibits disclosure of personnel

files).

3. [5.45] What Process Is Due?

Assuming that a dismissed or otherwise injured employee can demonstrate that the employer

deprived him or her of a liberty or property interest, it must also be shown that the deprivation

was without “due process.” Procedurally (for there also may be “substantive” due process issues),

what process is due will depend on the type of deprivation involved.

Currently, the Supreme Court uses a balancing test to determine what procedures an

employer must follow to avoid a due process violation. Mathews v. Eldridge, 424 U.S. 319, 47

L.Ed.2d 18, 96 S.Ct. 893 (1976). Courts must balance

a. the strength of the private interest that would be affected by the official action (the more

potential damage caused, the more procedural safeguards are necessary);

b. the risk of an erroneous deprivation of such interest through the procedures used and the

probable value, if any, of additional or substitute procedural safeguards; and

c. the government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would

entail.

See, e.g., Mathews, supra, 96 S.Ct. at 902 – 903 (holding that disability benefits could be

terminated without prior evidentiary hearing).

What procedure is due for any particular act, however, varies. It could involve anything from

simple notice to a full hearing. For example, in Cleveland Board of Education v. Loudermill, 470

U.S. 532, 84 L.Ed.2d 494, 105 S.Ct. 1487, 1489 (1985), the Court determined that “some kind of

a hearing” was required before terminating a tenured teacher. The “hearing,” however, need

include only evidence of the charges against her and an opportunity for her side of the story to be

presented. 105 S.Ct. at 1495 – 1497; Riggens v. Board of Regents of University of Nebraska, 790

F.2d 707 (8th Cir. 1986). However, the employee must receive more notice and “hearing” than a

brief telephone call before termination. Domiano v. Village of River Grove, 904 F.2d 1142 (7th

Cir. 1990); Ryan v. Illinois Department of Children & Family Services, 185 F.3d 751 (7th Cir.

1999) (adequate notice provided when plaintiff received notification letter nine days before

hearing and received charges and substantial amount of supporting material three days before

hearing; court also held that notice need not detail all reasons for termination, just enough to

provide sufficient explanation of why employee is being fired). However, the employee also must

receive a more complete post-discharge hearing involving an opportunity for the discharged

employee to confront accusers, to present testimony before an impartial tribunal, etc. See, e.g.,

Swank v. Smart, 898 F.2d 1247 (7th Cir.) (may fire police officer based on short, Loudermill

pretermination type hearing only provided that employee is offered full hearing afterward), cert.

denied, 111 S.Ct. 147 (1990).

For non-dischargeable actions, what process is “due” depends on various factors. Of course,

minor actions that may arguably involve “property” rights, such as acts involving vacation days

and compensatory time off, may be taken without providing the employee with a pre-act hearing.

Altman v. Hurst, 734 F.2d 1240 (7th Cir.) (no pre-deprivation hearing required before switch of

vacation time), cert. denied, 105 S.Ct. 385 (1984); Brown v. Brienen, 722 F.2d 360 (7th Cir.

1983) (no pre-deprivation hearing required before employer’s refusal to permit taking of

compensatory time); Saffold v. City of Chicago, 775 F.Supp. 1126 (N.D.Ill. 1991) (dicta

indicating no pre-deprivation hearing required before forfeiture of vacation time).

In suspension cases prior to 1997, courts generally, but not always, held that a pre-suspension

Loudermill hearing was not necessary if a post-suspension hearing was provided. Jones v. City of

Gary, Indiana, 57 F.3d 1435 (7th Cir. 1995) (no deprivation of property interests when postsuspension,

instead of pre-suspension, hearing was provided); Ceko v. Martin, 753 F.Supp. 1418

(N.D.Ill. 1990) (no pre-deprivation hearing required in implementing unpaid medical leave for

mentally unfit employee); Scott v. Illinois State Police Merit Board, 222 Ill.App.3d 496, 584

N.E.2d 199, 165 Ill.Dec. 20 (1st Dist. 1991) (no notice and hearing required for police officer’s

three-day suspension when officer had method to appeal decision to Police Merit Board).

In 1997, the Supreme Court addressed the issue in Gilbert v. Homar, 520 U.S. 924, 138

L.Ed.2d 120, 117 S.Ct. 1807 (1997). In Gilbert, the Court addressed the need for a hearing for a

tenured university police officer who was suspended without pay after the state police had

arrested him for several drug-related crimes. Under the particular facts of the case, in which the

state police had already verified the arrest and drug charges against the officer, and after

balancing the interests of the university and the employee, the Court found that the university’s

interest in maintaining public confidence in its police force outweighed the police officer’s

interest in an uninterrupted salary.

Courts have since looked at the Supreme Court’s analysis in Gilbert when deciding whether a

pre-suspension hearing is warranted. In Mustafa v. Clark County School District, 157 F.3d 1169

(9th Cir. 1998), for example, the court held that a teacher did not have a due process right to a

suspension-without-pay hearing even though there was no independent investigation by a third

party to substantiate the charge against the teacher. See also Duncan v. State of Wisconsin

Department of Heath & Family Services, 166 F.3d 930 (7th Cir. 1999) (citing Gilbert, suspension

with pay pursuant to Wisconsin law did not result in deprivation of property sufficient to trigger

due process protection); Crim v. Board of Education of Cairo School District No. 1, 147 F.3d 535

(7th Cir. 1998) (plaintiff suffered no economic harm from suspension with pay and full benefits

and thus was not entitled to Fourteenth Amendment protection). Whether an employee is entitled

to a pre-suspension Loudermill hearing will depend on how the facts compare to Gilbert.

In liberty “reputation” cases, no name-clearing hearing is necessarily required before

publishing the stigmatizing information. Rankin v. Independent School District No. I-3, Noble

County, Oklahoma, 876 F.2d 838 (10th Cir. 1989), cert. denied, 111 S.Ct. 786 (1991);

Chilingirian v. Boris, 882 F.2d 200 (6th Cir. 1989). Once the statements are publicized, however,

the employer must give the employee an opportunity to appear and attempt to clear his or her

name in a hearing. It is wise, however, to hold some sort of pretermination Loudermill hearing

anyway since the employee may have property interests at stake as well.

Generally, employers subject to civil service provisions such as under Division 1 of Article

10 of the Illinois Municipal Code need not worry about due process violations provided they

strictly follow civil service disciplinary procedures. Be aware, however, that if the employee has

a protectable interest, employers must make sure constitutional due process is followed — neither

the state nor employers may limit procedural protections for the deprivation of a protectable

interest. Loudermill, supra, 105 S.Ct. at 1491 – 1493.

C. [5.46] Freedom of Expression

Freedom of expression issues may arise in a number of situations: whistle-blowing, engaging

in political activities, participating in religious activities, or associating with persons considered

inappropriate. Two major lines of free speech cases involve employees who speak out against

employers and employees disciplined or discharged for their political loyalties.

1. [5.47] Right To Speak Freely of Matters of Public Concern

Public employers may not discharge or discipline an employee for exercising the right to free

speech. Pickering v. Board of Education of Township High School District 205, Will County, 391

U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968) (teacher’s letter to newspaper attacking school

board’s handling of proposed bond issue held to be protected free speech). Not all speech is

protected, however, and not all protected speech is unpunishable. The courts apply a two-step test

in order to determine whether an employee’s First Amendment free speech rights have been

violated:

a. Does the speech involve a matter of “public concern”?

b. If so, does the employee’s interest in speaking publicly outweigh the employer’s interest

in promoting the efficiency of the public services it performs through its employees?

See, e.g., Rankin v. McPherson, 483 U.S. 378, 97 L.Ed.2d 315, 107 S.Ct. 2891, 2896 – 2898

(1987); Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708, 103 S.Ct. 1684, 1686 (1983);

Pickering, supra. Additionally, the employee must demonstrate that the protected speech was a

motivating factor in the employer’s disciplinary action, and the employer may rebut the charge by

showing it would have reached the same decision in the absence of the protected speech. Mount

Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 50 L.Ed.2d 471, 97

S.Ct. 568, 575 – 576 (1977) (setting forth burdens of proof).

Whether an employee’s speech constitutes an issue of public concern depends on the context,

the form, and the content of the statement and whether the speech touches on matters of political,

social, or other community concerns. Connick, supra, 103 S.Ct. at 1689 – 1691. For example, in

Connick, the Supreme Court upheld the discharge of an assistant district attorney who was

terminated for passing around a questionnaire to fellow workers evaluating their supervisor’s

leadership skills and office practices. With one exception, for which the Court then applied the

balancing step of the test, the Court found the questions did not fall under the rubric of “public

concern” since they appeared to be an effort by the employee to gather support and evidence in

her personal dispute over her transfer and had little public import. 103 S.Ct. at 1689 – 1691. See

also Berg v. Hunter, 854 F.2d 238 (7th Cir. 1988) (following Connick in finding that some but

not all of employee’s allegations touched on matters of public concern), cert. denied, 109 S.Ct.

1314 (1989). The Supreme Court has held, in a plurality opinion, that courts should apply the

Connick test to the facts as the employer reasonably found them to be. In other words, a public

employer who reasonably believes a third-party report that an employee engaged in

constitutionally unprotected speech may punish the employee in reliance on that report, even if it

turns out the remarks were protected. The plurality limited this holding, however, by indicating

that the employer must exercise the same care that a reasonable employer would before acting on

a report of unprotected speech (i.e., the employer must reasonably investigate the report). Waters

v. Churchill, 511 U.S. 661, 128 L.Ed.2d 686, 114 S.Ct. 1878 (1994).

The motive behind the speech is examined also, but motive alone is not dispositive of the

issue. Berg, supra, 854 F.2d at 242 – 243 (motive alone not dispositive); Breuer v. Hart, 909 F.2d

1035 (7th Cir. 1990) (fact employee was motivated by self-interest strongly suggests speech

involved private dispute, but that alone is insufficient to exempt speech from protection). For

example, a police officer’s news interview in which he included both personal complaints and

issues of public concern was still protected when the complaints were of a general, public nature.

Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990); Kokkinis v. Ivkovich, 185 F.3d 840 (7th

Cir. 1999) (police officer who discussed fellow officer’s claim of sex discrimination on local

television newscast did not make protected remarks because point of plaintiff’s speech was to

further his own goal of expressing displeasure with police chief’s policies). Information that the

public would not likely be interested in, however, is not a matter of public concern. See, e.g.,

Barnes v. Small, 840 F.2d 972 (D.C.Cir. 1988) (letters concerning employee’s misbehavior in

office is not matter of public concern); Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004) (employee’s

letters that aired personal “beef” with the union and the school district were not matters of public

concern, and even if portions of the letters could be said to address matters of public concern, on

balance, the disruptiveness of the speech to the workplace outweighed any value the speech might

have had.). See also City of San Diego, California v. Roe, 543 U.S. 77. 160 L.Ed.2d 410, 125

S.Ct. 521 (2004) (police officer did not enjoy a constitutional right to sell sexually explicit tapes

of himself on eBay when officer had linked his wares to his employment; exploitation of

employer’s image for personal gain not matter of public concern).

Although sometimes difficult to establish, courts in the following cases found employees’

speech to be of significant public concern to warrant protection under the First Amendment:

Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc) (holding that speech about

sexual harassment is of public concern); Dishnow v. School District of Rib Lake, 77 F.3d 194 (7th

Cir. 1996) (holding that commentary in newspaper articles and opposition to removal of book

from school library was of sufficient public concern to be protected by First Amendment);

Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997) (police officer’s complaint to internal officials

and media concerning way department handled leads was matter of public concern). See also

Wainscott v. Henry, 315 F.3d 844 (7th Cir. 2003) (holding that city employee’s criticism of city

administration’s efficiency and effectiveness was of sufficient public concern to be protected by

First Amendment, despite personal animosity between employee and mayor); Cunningham v.

Village of Mount Prospect, No. 02 C 4196, 2002 U.S. Dist. LEXIS 22772 (N.D. Ill. March 1,

2002) (firefighter’s speech during involvement in wage negotiations as union representative was

protected by First Amendment); Sullivan v. Ramirez, 360 F.3d 692 (7th Cir. 2004) (two

employees’ personal notations on calendars indicating time other employees worked for purposes

of tracking potential abuse was speech that qualified as a matter of public concern).

In June 2006, the U.S. Supreme Court clarified that a public employee’s speech is not

protected by the First Amendment if made pursuant to the employee’s official job duties and

responsibilities. Garcetti v. Ceballos, ___ U.S. ___, 164 L.Ed.2d 689, 126 S.Ct. 1951 (2006).

Writing for a five-member majority, Justice Kennedy explained that “[r]estricting speech that

owes its existence to a public employee’s professional responsibilities does not infringe any

liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has commissioned or created.” 126 S.Ct. at 1960.

Even if the employee can demonstrate that a matter of public concern existed, however,

courts still must apply the second part of the test: balancing the interests of the employee with

those of the employer in promoting the efficiency of the public services it performs. Factors

considered in determining whether the speech impaired the efficiency of government services can

include whether the speech impeded the employee’s ability to perform the job; the importance of

a close working relationship among all employees; the time, place, and manner in which the

speech was delivered; and the context in which the underlying dispute arose. Rankin, supra, 107

S.Ct. at 2899 – 2900; Domiano v. Village of River Grove, 904 F.2d 1142 (7th Cir. 1990)

(although fire chief’s disagreement over ordinance was protected, his refusal to follow it was

not); Pollard v. City of Chicago, 643 F.Supp. 1244 (N.D.Ill. 1986) (employee complaints of

discrimination found to outweigh employer’s interest in promoting efficiency). For example, in

Rankin, supra, the Court held as protected a statement made by a clerical employee in a

constable’s office. The comment, made in response to the assassination attempt on President

Reagan, expressed a hope that the assassins would try again and be successful. 107 S.Ct. at 2895.

The Court ordered the employee reinstated because it could find no evidence that the comments

interfered with the efficient functioning of the office or that the comment had discredited the

office in the eyes of the public. 107 S.Ct. at 2897 –2901. In fact, the employee had made the

statement in private to a coworker, and the employer had admitted that the possibility that the

statement could have interfered with the functioning of the constable’s office was not considered

in the discharge. 107 S.Ct. at 2899 – 2900. See also Sullivan, supra (note taking, although it

addressed a matter of public concern, was not constitutionally protected because the state’s

interest in promoting the efficient performance of public services outweighed the plaintiffs’

interests as citizens in speaking on the issue of possible time abuse); Gazarkiewicz v. Town of

Kingsford Heights, Indiana, 359 F.3d 933 (7th Cir. 2004) (demonstrating that in certain

circumstances, employee may publicly criticize immediate supervisor and be protected by First

Amendment, notwithstanding that public employer may have policy governing manner in which

employees should voice concerns).

2. [5.48] Rights To Engage in Political Partisanship or To Express Political Opinions

Public employers generally may not discriminate in employment on the basis of an

employee’s political beliefs, affiliation, or activities. State laws, however, do regulate to some

extent which political activities are permissible. See §§5.129, 5.130 below.

The Supreme Court, however, has not held an employee’s First Amendment right to be all

encompassing. In Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96 S.Ct. 2673 (1976), the Court

held that although employees generally may not be discriminated against based solely on their

affiliations, patronage dismissals are constitutionally permissible in the limited situations in

which an employer can demonstrate that party affiliation is an appropriate requirement for the

effective performance of the public office involved. Branti v. Finkel, 445 U.S. 507, 63 L.Ed.2d

574, 100 S.Ct. 1287, 1293 – 1295 (1980) (assistant public defender could not be terminated for

political allegiance). The Court accepts such actions because the government has a legitimate

interest in ensuring “political loyalty” to the extent that representative government would be

undercut by disloyal employee activities. Elrod, supra, 96 S.Ct. at 2684 – 2685.

Elrod applies equally to disciplinary practices such as promotion, transfer, and even refusal to

hire. Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L.Ed.2d 52, 110 S.Ct. 2729 (1990)

(holding Elrod applies to promotion, transfer, recall, and hiring decisions based on party

affiliation). Moreover, political harassment, provided it is not trivial, can violate an employee’s

First Amendment rights. Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989) (upholding

verdict against employee’s supervisors for political harassment).

If an employee can demonstrate that a discharge was motivated in part by his or her engaging

in a constitutionally protected activity, the employer bears the burden of demonstrating that

political loyalty or patronage is an appropriate requirement for the effective performance of the

employee’s position. Elrod, supra, 96 S.Ct. at 2687; Tomczak v. City of Chicago, 765 F.2d 633,

640 (7th Cir.), cert. denied, 106 S.Ct. 313 (1985). Among other criteria, the court will look at the

nature and number of responsibilities of the position in question, the types of decisions made in

the position, and the room for principled disagreement in areas of decision-making. 765 F.2d at

640 – 641. In Ryan v. Illinois Department of Children & Family Services, 185 F.3d 751, 759 (7th

Cir. 1999), the court stated that a policy-making employee is one who authorizes, either directly

or indirectly, meaningful input into government decision-making on issues in which there is room

for principled disagreement on goals or their implementation. The court also held that the fact that

an employee’s views are ignored does not change their status. See Feeney v. Shipley, 164 F.3d

311 (6th Cir. 1999) (traffic safety supervisor found to be within policy-making exception). But

see Lickiss v. Drexler, 141 F.3d 1220 (7th Cir. 1998) (deputy sheriff not within exception), cert.

denied, 119 S.Ct. 513 (1998).

Although each case must be decided on its particular facts, generally the vast majority of

offices that fall within the realm of legitimate patronage are either “policy-making” or

“confidential” positions. See, e.g., Tomczak, supra, 765 F.2d at 640 (second highest position in

Chicago’s water department held exempt from prohibition against patronage dismissals);

Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285, 288 (7th Cir.) (dicta indicating sheriff’s

confidential secretary would be exempt from First Amendment protection), cert. denied, 105

S.Ct. 2360 (1985); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307 (7th

Cir.) (second highest park district position), cert. denied, 104 S.Ct. 279 (1983); Diamond v.

Chulay, 811 F.Supp. 1321 (N.D.Ill. 1993) (superintendent of public works). But see Meeks v.

Grimes, 779 F.2d 417 (7th Cir. 1985) (court bailiff positions protected by First Amendment);

Rodez v. Village of Maywood, 641 F.Supp. 331 (N.D.Ill. 1986) (police chief).

In O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 135 L.Ed.2d 874, 116 S.Ct.

2353 (1996), the Supreme Court extended the protections generally afforded to public employees

for expression of political opinions to independent contractors. In O’Hare, a private towing

service brought a civil rights action (42 U.S.C. §1983) against a municipality challenging its

removal from the city’s rotation list of available towing service contractors because of the

contractor’s political actions. In finding that the O’Hare plaintiff asserted a proper First

Amendment violation, the Supreme Court granted independent contractors protection against

being economically disadvantaged for refusing to support a specific political party or its

candidates.

D. [5.49] Selected Privacy Issues

Many common private employer actions may raise constitutional privacy rights issues if

performed by a public employer: drug-testing, searches, preemployment inquiries, polygraph

exams, releasing employee information, inquiries into personal activities outside the workplace,

etc. Only the first three issues are addressed briefly in §§5.50 – 5.52 below.

1. [5.50] Substance Abuse Testing

Drug and alcohol tests of public employees constitute a search and seizure within the

meaning of the Fourth Amendment, which prohibits the government from making unreasonable

searches and seizures. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103

L.Ed.2d 685, 109 S.Ct. 1384 (1989). Thus, in order to be constitutional, an employer’s drug or

alcohol testing program must be “reasonable” under the Fourth Amendment. Remember,

however, that a substance abuse program must also comply with the Americans with Disabilities

Act and the Illinois Human Rights Act, and such a program may constitute a mandatory subject

of bargaining vis-à-vis an employer’s organized employees.

In 1989, the U.S. Supreme Court decided a second case involving a leading public

employer’s drug testing. In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 103

L.Ed.2d 639, 109 S.Ct. 1402 (1989), the Court upheld regulations permitting the testing of

railroad employees after an accident or when the employer had a reasonable suspicion that an

employee had used drugs. In so holding, the Court cited the railroad industry’s paramount interest

in safety as well as a compelling government interest in determining the cause of railway

accidents. 109 S.Ct. at 1420 – 1421. In Von Raab, the Court upheld the testing of employees

about to be transferred to positions involving the interdiction of drugs or positions that required

the carrying of a firearm. The Court found that the government had a compelling interest in

keeping the drug interdiction unit of the Customs Service drug free and a compelling interest in

public safety with regard to employees who carry firearms. 109 S.Ct. at 1392 – 1394.

Both Skinner and Von Raab applied a balancing test to determine whether the drug testing

was reasonable under the Fourth Amendment. What is reasonable, of course, depends on all of

the circumstances surrounding the search or seizure and the nature of the search or seizure itself.

Skinner, supra, 109 S.Ct. at 1414 – 1415. The Court balanced the individual’s privacy

expectations against the government’s interests. Id.; Von Raab, supra, 109 S.Ct. at 1390 – 1391.

Courts applying this test to public employer substance abuse programs have looked at factors

such as (a) the government’s interest in providing a safe workplace (Skinner, supra, 109 S.Ct. at

1414 – 1415), (b) the employees’ access to sensitive information or any national security interests

involving the employees to be tested (Von Raab, supra, 109 S.Ct. at 1396 – 1398), (c) the overall

invasiveness of the test (Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991) (state regulation of

racetrack jockeys)), (d) whether the test is part of a routine or annual medical examination

(Wrightsell v. City of Chicago, 678 F.Supp. 727 (N.D.Ill. 1988) (routine medical exam for

employees returning from extended leave)), and (e) whether the employees should have a reduced

expectation of privacy due to the nature of their occupation (Skinner, supra, 109 S.Ct. at 1418 –

1419).

The key issue in any balancing test, however, is the basis on which the test is given. For

example, drug testing based on well-founded individualized suspicion is generally considered

reasonable under the Fourth Amendment. Of course, employers may still violate an employee’s

rights if they order a test based on a reasonable suspicion that later cannot be substantiated. See,

e.g., Wrightsell, supra (city had reasonable suspicion to test police officer for drug use based on

his girlfriend’s reporting that he used drugs). Post-accident testing, at least when the accident is

serious, is also considered reasonable on the basis of public safety concerns. Skinner, supra, 109

S.Ct. at 1419 – 1420. But see Connelly v. Newman, 753 F.Supp. 293 (N.D.Cal. 1990) (U.S. Office

of Personnel Management’s post-accident drug-testing plan failed to satisfy constitutional

standards because employees did not pose sufficient threat to public safety and accident threshold

level of $1000 in property damage was too low).

Random testing programs and across-the-board programs, however, are more constitutionally

suspect. Employers often defend such programs on the grounds of a regulated industry or

administrative search exception to the probable cause and warrant requirements of the Fourth

Amendment. See, e.g., Petersen v. City of Mesa, 207 Ariz. 35, 83 P.3d 35 (2004) (random testing

found unconstitutional because firefighter’s privacy interests outweighed city’s need for random,

suspicionless drug testing); UAW, Local 6000 v. Winters, 385 F.3d 1003 (6th Cir. 2004) (finding,

on balance, state’s needs outweighed employees’ privacy rights and unpredictability of testing

helped achieve intended result: to deter and prevent drug usage and to protect public safety and

health); Policeman’s Benevolent Association of New Jersey, Local 318 v. Township of

Washington, 850 F.2d 133 (3d Cir. 1988) (random drug testing of police officers held

permissible), cert. denied, 109 S.Ct. 1637 (1989). Cases involving random and across-the-board

drug tests include Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d 807

(3d Cir. 1991) (compulsory testing of maintenance employees unjustified), cert. denied, 112 S.Ct.

2281 (1992); Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989) (testing of correctional

employees who come into contact with prisoners held valid); Dimeo, supra (random testing of

racetrack jockeys held reasonable due to state interests in safety and racing revenue); American

Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir. 1989) (upholding

random testing of air traffic controllers, aircraft mechanics, and aviation and railway inspectors

because of public safety concerns), cert. denied, 110 S.Ct. 1960 (1990); Aubrey v. School Board

of Lafayette Parish, 148 F.3d 559 (5th Cir. 1998) (suspicionless testing of elementary school

janitor upheld).

Also note that one court, relying on Cleveland Board of Education v. Loudermill, 470 U.S.

532, 84 L.Ed.2d 494, 105 S.Ct. 1487 (1985), has held that employees who test positive must have

an opportunity to rebut the charge and challenge the validity of the test results before being

disciplined. Fraternal Order of Police, Lodge No. 5 v. Tucker, 868 F.2d 74 (3d Cir. 1989).

2. [5.51] Searches and Seizures

Workplace searches in the public sector are subject to the Fourth Amendment, which

prohibits the government from making unreasonable searches and seizures. U.S.CONST. amend.

IV. Searches of employee offices, desks, or files may be permissible when (a) the employee has

no reasonable expectation of privacy or (b) the employer has reasonable grounds for initiating the

search.

The leading case on workplace privacy in the public sector is O’Conner v. Ortega, 480 U.S.

709, 94 L.Ed.2d 714, 107 S.Ct. 1492 (1987). In O’Conner, a hospital concerned about possible

improprieties involving its executive director searched his office, desk, and files. 107 S.Ct. at

1495. Some of the evidence found was later used to impeach the credibility of a doctor who

testified on the executive director’s behalf. Id. In a plurality decision, the Court reversed a lower

court’s finding that the search automatically violated the Fourth Amendment and remanded the

case for further proceedings to determine whether the search was reasonable. 107 S.Ct. at 1496.

Although the Court found that public employees have privacy rights in the workplace, four

Justices found that such rights depend on the reasonable expectations of privacy in light of the

“operational realities of the workplace”:

Public employees’ expectations of privacy in their offices, desks, and file cabinets,

like similar expectations of employees in the private sector, may be reduced by

virtue of actual office practices and procedures, or by legitimate regulation. 107

S.Ct. at 1497.

Thus, while an employee may hold an expectation of privacy in a locked briefcase carried to

work, that same expectation may not apply to desks or file cabinets. 107 S.Ct. at 1496 – 1497.

For example, if the work environment is characterized by frequent invasions into employees’

desks to locate files or documents, an employee may have no reasonable expectation of privacy.

107 S.Ct. at 1497 – 1498. Similarly, employers with published policies for searching work areas

that are disseminated to employees may negate an expectation of privacy. Chicago Fire Fighters

Union, Local 2 v. City of Chicago, 717 F.Supp. 1314 (N.D.Ill. 1989) (posted notice that lockers

are subject to unannounced, warrantless searches reduces employee’s expectation of privacy).

The four dissenting Justices, together with concurring Justice Scalia, questioned the

plurality’s use of a reasonableness test for privacy expectations to determine whether Fourth

Amendment protections are even raised. The dissent was especially concerned with the plurality’s

comments that the openness of an employee’s office may remove the expectation of privacy.

O’Conner, supra, 107 S.Ct. at 1504, 1506 – 1508. To that extent, relying on the plurality opinion

to institute a search of an “open” office may be unwise.

Whether an employee has a reasonable expectation of privacy will depend on the specific

facts of each case. In Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997), for example, a state

child protective investigator brought a 42 U.S.C. §1983 action in connection with a warrantless

search conducted pursuant to an anonymous tip that she kept child pornography in her file

cabinet. The court held that the search did not violate her Fourth Amendment rights because,

although she had purchased the searched storage unit and filing cabinet herself and she had

exclusive control over them by lock and key, there was no reasonable expectation of privacy

because most of the contents were work-related items. The court noted that the items were part of

“the ‘workplace,’ not part of Gossmeyer’s personal domain.” 128 F.3d at 490. In addition, the

court held that the search was reasonable in scope and justified at its inception.

Even if an employee has a reasonable expectation of privacy, however, an employer always

may initiate a search if it has “reasonable grounds for suspecting that the search will turn up

evidence that the employee is guilty of work-related misconduct, or that the search is necessary

for a noninvestigatory work-related purpose.” O’Connor, supra, 107 S.Ct. at 1502. The search

also must be reasonably tailored to its purpose: “The search will be permissible in its scope when

‘the measures adopted are reasonably related to the objectives of the search and not excessively

intrusive in light of . . . the nature of the [misconduct].’ ” [Citation omitted.] Id.

3. [5.52] Preemployment Inquiries

Preemployment inquiries into an employee’s background or lifestyle may interfere with the

employee’s constitutional right to privacy. Depending on the questions asked, an employer may

violate an employee’s “confidentiality” interest in not disclosing personal matters or an

“autonomy” interest in making fundamental decisions. The nature of the privacy interest involved

will affect how carefully a court determines the constitutionality of the question.

When confidentiality interests in disclosing personal matters are at issue, the courts apply a

flexible balancing approach to determine whether the inquiry is proper. Fraternal Order of

Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987) (balancing nature

of intrusion to employee police officers versus state’s need for information to find proper

questions regarding employee’s medical, financial, and behavioral background). This standard

incorporates several factors: the type of information requested, the potential for injury if the

information is involuntarily released, the safeguards preventing disclosures, the importance of the

information to the employer, and whether a statute or public policy addresses the issue. Id. Courts

also consider whether historically the disclosure of the information has been required and whether

the applicant knew that fact. 812 F.2d at 113 – 114.

Persons have challenged several types of inquiries on confidentiality grounds with varying

degrees of success. For example, courts have held that arrest and conviction records are not

protected constitutionally from disclosure. Cf. Paul v. Davis, 424 U.S. 693, 47 L.Ed.2d 405, 96

S.Ct. 1155 (1976). Note, however, that statutory limitations do exist. See §5.26 above. Although

medical records are entitled to constitutional privacy protections (Borucki v. Ryan, 827 F.2d 836,

845 (1st Cir. 1987)), an employer’s need to know an applicant’s medical history because it will

likely affect job performance often will outweigh the applicant’s privacy rights (Philadelphia,

supra, 812 F.2d at 114 (police officers); Spencer v. Toussaint, 408 F.Supp. 1067 (E.D.Mich.

1976) (mental illness inquiry of bus driver applicants permissible in order to assure safety of

public)). Note, however, that employers are now limited by the Americans with Disabilities Act,

which bans certain preemployment inquiries and tests. See §§5.61, 5.62 below.

Inquiries into an applicant’s financial condition also raise confidentiality issues, but courts

have held that some interests in obtaining such information outweigh an employee’s privacy

rights. For example, employers may request financial information of police officer candidates due

to the public’s interest in avoiding potential corruption. Philadelphia, supra, 812 F.2d at 116.

Similarly, one court upheld a Florida law requiring elected officials to disclose financial

information because the public’s interest in improving the electoral process outweighed

confidentiality concerns. Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), cert. denied, 99 S.Ct.

1047 (1979). Note, however, that certain background investigations are now covered by the Fair

Credit Reporting Act (FCRA), 15 U.S.C. §1681, et seq. See §5.64 below.

Employees theoretically may invoke their “autonomy interests” over inquiries involving their

marital status, plans for children, or other personal relationships likely to implicate an applicant’s

privacy interest in autonomy. Although it is unclear, to justify such questions an employer would

probably have to show that the information requested constitutes the least intrusive means of

promoting a compelling state interest. Many of these questions should be avoided anyway to

prevent a possible appearance that the employer discriminates. See §5.62 below.

One more common autonomy interest issue is whether a public employer may ask an

applicant whether he or she is married to any of its employees. This inquiry has withstood

constitutional challenges in cases in which the employer asked the question in order to evaluate

whether the applicant’s employment would compromise legitimate employer concerns in

business, safety, security, or morale. For example, in Keckeisen v. Independent School District

612, 509 F.2d 1062 (8th Cir.), cert. denied, 96 S.Ct. 57 (1975), the court upheld a school’s policy

prohibiting the employment of married couples in administrator-teacher relationships because the

policy served to avoid potential conflicts of interest.

Illinois prohibits discrimination on the basis of marital status. The Illinois Supreme Court, in

Boaden v. Department of Law Enforcement, 171 Ill.2d 230, 664 N.E.2d 61, 215 Ill.Dec. 664

(1996), overruled lower court precedent and held that while the Illinois Human Rights Act

prohibits discrimination based on one’s marital status, it does not prohibit discrimination based on

the identity of one’s spouse. In so finding, the court upheld an employer’s policy forbidding

spouses from working on the same shift. Id. Thus, inquiring whether an applicant is married to a

fellow employee would appear not to violate the Illinois Human Rights Act.

V. HIRING PROCESS

A. [5.53] Civil Service Procedures

All positions in the classified service of municipalities that are subject to Division 1 of Article

10 of the Illinois Municipal Code must be filled through a public, competitive examination

process open to all U.S. citizens “with specified limitations as to residence, age, health, habits and

moral character.” Code §10-1-7(a). Of course, the qualification criteria — age, health, etc. —

must also comply with antidiscrimination statutes. The process is as follows.

1. [5.54] Commission

The commission is charged with controlling the examination process. Illinois Municipal Code

§10-1-7. It does not, however, have the authority to appoint candidates for positions. Butts v. Civil

Service Commission of City of Aurora, 108 Ill.App.2d 258, 246 N.E.2d 853, 856 (2d Dist. 1969).

Instead, the commission is responsible for developing and conducting competitive examinations,

evaluating the candidates based on the examinations, and certifying the results to the appointing

party. Code §10-1-7.

The commission may designate persons in or out of the municipality’s employ to be the

actual examiners who conduct the examinations and report back to the commission. If the

examiners are already employees, however, they may not receive extra compensation for their

services. Alternatively, the commissioners may decide to act as examiners themselves. Examiners

cannot all be from the same political party. However, the political affiliations of persons who

assist the examiners in nondiscretionary roles are irrelevant. People ex rel. Clark v. Hurley, 343

Ill.App. 182, 98 N.E.2d 596 (1st Dist. 1951).

2. [5.55] Vacancy Notice and Examination Fees

A notice of time, place, general scope, and fees (if any) for each civil service examination

must be published for two weeks before an exam in a newspaper of general circulation published

in (or circulated in if none is published) the municipality. Illinois Municipal Code §10-1-11. The

commission also must post an examination notice in its office during the same period.

Division 1 permits municipalities to charge an application fee to defray the costs of the

examination process. Code §10-1-9 lists the maximum fees allowable based on each position’s

minimum salary.

3. [5.56] Examination

Civil service examinations are to be practical in nature and must relate to matters that will

fairly test the relative capacity of job applicants to perform the duties of the positions sought.

Illinois Municipal Code §10-1-7(f). Division 1 of Article 10 of the Code permits examinations of

physical qualifications and health and manual skills, but physical exams will be waived for

applicants who were injured while working as temporary employees in the applied-for position.

The Americans with Disabilities Act, however, now prohibits pre-offer medical exams or

inquiries into a person’s disability status. See §§5.61, 5.62 below. Additionally, employment tests

such as physical agility tests must be given to all applicants and may not tend to screen out

persons with disabilities unless such tests are related to the position in question, are consistent

with a business necessity, and are of a nature that makes reasonable accommodation of the

disability impossible.

Attempts to give certain candidates a competitive advantage (such as drawing the

examination questions from a supervisory manual available only to certain applicants) will void

the results. McElroy v. Cahill, 113 Ill.App.2d 254, 252 N.E.2d 80 (1st Dist. 1969) (examination

held void when over 50 percent of questions were drawn from employer manual not available to

all candidates). In addition, examinations may not screen for political or religious opinions or

affiliations, nor may they screen out persons who have been convicted of a misdemeanor or who

have been arrested for any cause but not convicted (with exceptions for police officers; see

Chapter 6).

4. [5.57] Eligibility List

After the examinations are completed, the commission places the names of those candidates

meeting the minimum qualification requirements on a register, or eligibility list, for each grade or

class of positions in the civil service. Illinois Municipal Code §10-1-12. Applicants are ranked on

the register in order of their score regardless of the date they took the examination. In other

words, persons who were already on the eligibility list do not “float” to the top by virtue of the

amount of time spent on the list; they are placed according to the scores of all eligible candidates.

The eligibility list must be posted within 60 days after the examination, and it must show the

final grades of the candidates. The commission need not, however, maintain the list until all

eligible persons are appointed; also, lists may be taken down after two years. Code §10-1-14. See

also United States v. City of Chicago, 567 F.2d 730 (7th Cir. 1977), cert. denied, 98 S.Ct. 2832

(1978).

5. [5.58] Veteran’s Preference

Within ten days of the posting of the eligibility list, applicants who are eligible for military

credit must claim it in writing or else it will be deemed waived. Division 1 of Article 10 of the

Illinois Municipal Code requires municipalities to add five points to the final score of certain

veterans who served during wartime. Code §10-1-16. To receive preference points, the veteran

first must be minimally qualified. Veterans who are found ineligible during the examination

process will not be given points in order to make them eligible. Second, the veteran must have

served for a period of at least one year and must have been honorably discharged or currently be

on inactive or reserve duty, but those convicted by court-martial for disobeying orders to perform

military service on the grounds of alleged religious or conscientious objections to war are not

eligible for preference points. Code §10-1-16.

6. [5.59] Appointments

When a vacancy occurs, the head of the department in which the vacancy will be filled

notifies the commission of each open position. The commission then certifies to the department

head the name and address of the candidate with the highest standing on the eligibility list for that

position. Illinois Municipal Code §10-1-14. In positions for which selection by competition is

impracticable, the commission may develop rules to choose a candidate by lot, but former

employees removed due to lack of work must be given preference based on years of service. The

appointing officer (department head) must fill the vacancy with the person certified to him or her

by the commission.

Offers of employment will be subject to a final physical examination. According to §1 of the

Medical Examination of Employees Act, 820 ILCS 235/0.01, et seq., the employer probably must

pay for the exam. See §5.116 below. According to Division 1, Article 10 of the Code, candidates

whose physical or mental conditions are less than the commission’s minimum standards for the

position will be returned to the eligibility roster. Code §10-1-8. If a candidate is certified out to a

second position and again fails a medical exam, the candidate will not be appointed and will be

removed from the eligibility list.

7. [5.60] Probation

Those newly hired may be placed on probation for up to six months (nine for police in a city

of more than 500,000 residents), excluding time spent in training schools and seminars. Illinois

Municipal Code §10-1-14. During this time, a new employee may be dismissed by the head of the

department with the commission’s consent for any reason provided the discharge is in writing and

lists the commission’s reason for discharge.

Effective July 2005, P.A. 094-0135 amended the Code to allow firefighters who are required

to obtain their paramedic certification to have their probationary period extended beyond the

regular one-year period, during which time the sole reason that a firefighter may be discharged

without a hearing is failure to meet the requirements for paramedic certification. Previously, there

was no statutory limitation on probationary periods for firefighters who were required to be

paramedics. Code §10-1-7.

B. [5.61] Limitations on Prehire Medical Examinations

Both state and federal law limit an employer’s use of prehire medical exams. Also,

constitutional privacy right concerns may be raised. See §5.41 – 5.52 above. Illinois Human

Rights Commission regulations permit the physical and psychological testing of all applicants

who have been found otherwise qualified for selection for the purpose of determining whether the

applicants are capable of performing acceptably in the vacant position. 56 Ill.Admin. Code

§2500.60. Applicants also may be tested in order to ascertain what accommodation is necessary

for them to perform.

Contrary to the HRC regulations, however, under the Americans with Disabilities Act,

preemployment medical examinations may be used only after a conditional offer of employment

has been extended. See Leonel v. American Airlines, Inc., 400 F.3d 702 (9th Cir. 2005). All new

employees must be tested equally (i.e., no disparate treatment), and the information obtained must

be treated as a confidential medical record and kept in a file separate from other personnel

records. 42 U.S.C. §12112(d)(3). All medical information on any employee must be kept

confidential subject to a few exceptions: supervisors may be informed regarding necessary work

restrictions or accommodations; first aid personnel may be informed if the disability might

require emergency treatment; and government investigators may have access to such information.

Id.; 29 C.F.R. §1630.14. Drug tests, however, may be required before an employment offer is

made. The results of medical and drug tests also must be used only in accordance with the ADA.

Based on the Appendix to the ADA regulations, medical exams apparently may test to find

whether the person meets both physical and psychological criteria. 29 C.F.R. Part 1630, App.

Note, however, that if a certain medical criterion tends to screen out persons with disabilities, the

criterion must be job related and consistent with a business necessity.

Pre-offer physical agility tests are permitted, but as with other tests, they must not screen out

persons with disabilities unless the employer can demonstrate that reasonable accommodation is

not possible and that the test is job related and consistent with a business necessity.

C. [5.62] Prohibited Questions on Employment Applications and During Job Interviews

Many “traditional” employment inquiries are now either illegal or can be so damaging in an

employment discrimination case that they should be avoided. Some may also raise constitutional

privacy right issues. See §§5.41 – 5.52 above. Under the Americans with Disabilities Act and the

Right to Privacy in the Workplace Act, 820 ILCS 55/1, et seq., for example, during the pre-offer

stage, employers may not inquire whether an applicant has a disability or ask the applicant about

his or her workers’ compensation history. 29 C.F.R. Part 1630, App.; 820 ILCS 55/10. Other

prohibited inquiries include

1. asking applicants to list medical impairments or check off the impairments they have

from a list;

2. asking how applicants became disabled or what the medical prognosis is; and

3. asking how often applicants will require leave for treatment. 29 C.F.R. Part 1630, App.

Employers may ask questions, however, that relate to the applicant’s ability to perform jobrelated

functions provided these questions are not phrased in terms of a disability. For example,

an employer may state attendance requirements and inquire how the applicant can meet them. An

employer also may request on an application form that individuals who will need reasonable

accommodation in order to take an entrance exam inform the employer within a specified time

period. 29 C.F.R. §1630.14(a).

Many other inquiries are prohibited. For example, employers may not

1. require applicants to disclose their national origin or ancestry unless it is a bona fide

occupational qualification (56 Ill.Admin. Code §5220.500);

2. inquire as to citizenship when it would have the purpose or effect of discriminating

against applicants (id.);

3. list a preference for a specific sex on a job announcement or application unless it is a

bona fide qualification (56 Ill.Admin. Code §§5210.20, 5210.40; 29 C.F.R. §1604.5);

4. inquire as to arrest records (conviction inquiries are permissible);

5. place advertisements, such as “young,” “recent college graduate,” etc., that tend to deter

older applicants, unless youth is a bona fide employment qualification; or

6. set height and weight requirements or require applicants to possess a certain level of

education or pass an English language proficiency test when such requirements tend to

screen out women or minorities — unless they are job related (Equal Employment

Opportunities Commission Guide to Pre-Employment Inquiries, 8A F.E.P. Manual

(BNA) §443:65).

Other preemployment inquiries are discouraged because they are used frequently to discriminate.

For example, questions about marital status, future childbearing plans, and the number of children

a female applicant has often have been used to discriminate and also may raise constitutional

privacy right issues. Asking on an application about organizations to which an applicant belongs

without having the applicant exclude names that may give away the his or her protected status

also may be troublesome.

Even questions regarding an applicant’s age or date of birth will be scrutinized closely by the

EEOC if age discrimination claims are filed. Needless to say, there are many other potentially

suspicious questions and inquiries. As a general rule, inquiries should be job related and asked in

an objective manner. For a more detailed discussion, see Steven C. Kahn et al., LEGAL GUIDE

TO HUMAN RESOURCES (2006), and DISABILITY LAW TODAY: AN ACCESSIBLE

GUIDE FOR ILLINOIS PRACTITIONERS, Ch. 3 (IICLE, 2006).

D. [5.63] Use of Lie Detector Tests

Illinois regulates the use of lie detectors by requiring that lie detector examiners obtain a state

license in accordance with the Detection of Deception Examiners Act, 225 ILCS 430/0.01, et seq.

This Act prohibits examiners from inquiring into the following areas during preemployment or

periodic employment examinations unless the area is directly related to employment:

(1) Religious beliefs or affiliations;

(2) Beliefs or opinions regarding racial matters;

(3) Political beliefs or affiliations;

(4) Beliefs, affiliations or lawful activities regarding unions or labor organizations;

(5) Sexual preferences or activity. 225 ILCS 430/14.1.

Even when the Act does not apply, the use of lie detectors may raise constitutional issues

involving privacy rights and searches and seizures. Moreover, in Illinois, public employees may

not be punished for refusing to submit to such exams, and exam results are inadmissible in

disciplinary proceedings. Kaske v. City of Rockford, 96 Ill.2d 298, 450 N.E.2d 314, 70 Ill.Dec.

841, cert. denied, 104 S.Ct. 391 (1983).

Note also that the federal Employee Polygraph Protection Act of 1988, 29 U.S.C. §2001, et

seq., which basically prohibits private employers from suggesting that employees take a

polygraph, using the results of an exam, or discriminating against employees who do not take

such exams, does not apply to public employees. 29 U.S.C. §§2002, 2006.

E. [5.64] Fair Credit Reporting Act Requirements

The Fair Credit Reporting Act imposes limitations on the use of consumer credit reports from

consumer reporting agencies (CRAs) in making employment decisions. The FCRA defines

“CRA” to include any person or legal entity, including governmental entities, that for monetary

purposes or on a cooperative nonprofit basis, regularly engage in assembling or evaluating

consumer credit information or other information on consumers for the purposes of furnishing

consumer reports to third parties utilizing interstate commerce. 15 U.S.C. §1681a(f). The term

“consumer” is defined to include job applicants and employees.

The FCRA distinguishes between two types of reports. “Consumer Reports” are written, oral,

or other communications of a consumer reporting agency that bear on a consumer’s

creditworthiness, credit standing, credit capacity, character, general reputation, personal

characteristics, or mode of living that are used (or expected to be used) as a factor in establishing

eligibility for employment purposes. 15 U.S.C. §1681a(d). This is the type of report regarding an

applicant’s or employee’s credit history that is typically obtained by an employer. “Investigative

consumer reports” are consumer reports (or a part thereof) in which information on a consumer’s

character, general reputation, personal characteristics, or mode of living is obtained through

personal interviews with neighbors, friends, or associates of the consumer. 15 U.S.C. §1681a(e).

Employers using consumer reports for employment purposes must

1. make clear and conspicuous written disclosure to an applicant or employee before the

report is obtained that a consumer report may be obtained (The disclosure must be in a

separate document; it cannot be contained, for example, in an employment application.);

2. obtain the written authorization of the applicant or employee prior to requesting the

report; and

3. certify to the CRA that

a. the employer has distributed the required written disclosure and received the required

written authorization;

b. the information being obtained will not be used in violation of any federal or state

equal employment opportunity law or regulations; and

c. if any adverse action is to be taken based on the consumer report, a copy of the report

and a summary of the consumer’s rights will be provided to the applicant or

employee (The FCRA requires CRAs to provide a copy of the summary with each

consumer report obtained for employment purposes.). 15 U.S.C. §1681b.

For investigative consumer reports, an employer must disclose to the applicant or employee that

an investigative consumer report may be obtained. The employer must send, by mail or delivery,

the disclosure in writing not later than three days after the report has first been requested from the

CRA. The disclosure must include the summary of the consumer rights described above and a

statement informing the applicant or employee of the right to request additional disclosures

regarding the nature and scope of the investigation. 15 U.S.C. §1681d.

If a request for additional disclosure is made within a reasonable time by the applicant or

employee, the employer must make a complete disclosure of the nature and the scope of the

investigation that was requested. The disclosure must be in writing and mailed or delivered to the

applicant or employee no later than five days after the date on which the request was received or

the report was first requested, whichever is later in time.

Before taking any adverse actions against an applicant or employee based on such a report,

the employer must provide a copy of the report to the applicant or employee as well as the

summary of the applicant’s or employee’s rights. 15 U.S.C. §1681b(b)(3). An employer also must

provide the employee with of the name, address, and telephone number of the CRA providing the

report; a statement that the CRA did not make the adverse decision and is not able to explain why

the decision was made; a statement of the applicant’s or employee’s right to obtain a free copy of

the consumer report form from the CRA if requested within 60 days; and a statement of the

applicant’s or employee’s right to dispute with the CRA the accuracy or completeness of any

information contained in a consumer report. If information is obtained from an affiliate of a CRA

(by common ownership or control), the employer must notify the applicant or employee of the

adverse action and that he or she has 60 days to request a disclosure of the information.

Employers have 30 days to provide the disclosure.

The Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. §1601, et seq., includes

provisions loosening restrictions on third-party investigations of alleged employee wrongdoing

and tightening restrictions on the reporting of medical information to employers. The law

reauthorizes the Fair Credit Reporting Act.

F. [5.65] Immigration Reform and Control Act Requirements

Besides its previously mentioned antidiscrimination provisions, the Immigration Reform and

Control Act makes it unlawful for a person knowingly to hire an illegal alien or to hire anyone

without complying with the IRCA’s employment verification requirements. 8 U.S.C. §1324a. If

found guilty of “knowingly” hiring illegal aliens, employers face three increasing levels of civil

fines: $250 to $2,000 per each unauthorized alien for a first violation; $2,000 to $5,000 per alien

for the second violation; and $3,000 to $10,000 per alien for later violations. 8 U.S.C.

§1324a(e)(4). Employers found guilty of engaging in a “pattern or practice” (regular, repeated,

and intentional) of “knowingly” hiring illegal aliens are subject to additional criminal penalties of

up to $3,000 per unauthorized alien employed and/or six months in prison. 8 U.S.C. §1324a(f)(1).

Employers also must inspect and verify documentation that will establish both the identity

and employment authorization of every new employee. The employer and employee must

complete and sign a Form I-9. 8 U.S.C. §1324a(b). Form I-9 delineates two methods for

documenting an employee’s identity and employment authorization. First, the employee may

produce a single document, such as a U.S. passport, selected from the form’s List A, which

satisfies both the identity and work authorization requirements. If a List A document cannot be

produced, an employee must then produce one document each from Lists B and C. The employee

must show the employer the actual documents — photocopies are not adequate. Employers,

however, cannot specify or prefer that an applicant submit specific documents like a “green card.”

An employer must accept any documents listed as acceptable on the Form I-9.

Both the employer and employee must sign the respective “attestation” portions of Form I-9.

The employer, by signing, attests that it reviewed the proffered documentation and that it appears

“genuine.” The employee attests that he or she is authorized to work and is not an illegal alien.

The IRCA requires employers to retain the completed, signed I-9 forms for three years after

the date of hire or one year after termination, whichever is later. 8 U.S.C. §1324a(b)(3). Also, it is

important to keep track of the date an alien employee’s work authorization expires. An employee

whose work authorization expires must reverify the authorization or else have his or her

employment terminated.

By complying with the IRCA, an employer automatically establishes a first-line defense (that

is, a rebuttable presumption) that he or she did not “knowingly” hire or continue to employ an

illegal alien. 8 U.S.C. §1324a(a)(3). Failure to comply may raise the opposite presumption. Also,

failing to complete and retain a Form I-9 will result in fines of up to $1,000 per each incomplete

form. 8 U.S.C. §1324a(e)(5).

VI. [5.66] WAGE AND HOUR LAWS

Like any other employer, public employers are generally subject to both state wage and hour

laws and, after the Supreme Court’s decision in Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528, 83 L.Ed.2d 1016, 105 S.Ct. 1005 (1985), federal wage and hour laws.

Discussed briefly below are the Fair Labor Standards Act and applicable state laws. For a good

overview of federal wage and hour laws, see Joseph E. Kalet, PRIMER ON WAGE & HOUR

LAWS (2d ed. 1990).

A. Fair Labor Standards Act of 1938

1. [5.67] Coverage

The Fair Labor Standards Act regulates minimum wages, overtime, equal pay, age

discrimination, family and medical leave, and child labor for all employees and employers

covered by the FLSA. This is one of many acts that requires employers to display in a prominent

place a poster explaining an employee’s rights under the act. Originally, the FLSA did not cover

state and local governmental employers. Gradually, however, Congress expanded the scope of the

FLSA until, after further amendments in 1974, it applied to state and local governmental

employers. Although the Supreme Court had originally upheld an expansion of the FLSA to

encompass public hospitals and schools (Maryland v. Wirtz, 392 U.S. 183, 20 L.Ed.2d 1020, 88

S.Ct. 2017 (1968)), the Court reversed itself after the 1974 amendments by finding the extension

of the FLSA to public employers unconstitutional because it interfered with a state’s freedom to

structure its “traditional governmental functions.” National League of Cities v. Usery, 426 U.S.

833, 49 L.Ed.2d 245, 96 S.Ct. 2465 (1976). Less than ten years later, the Supreme Court again

changed its position. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83

L.Ed.2d 1016, 105 S.Ct. 1005 (1985), it found the FLSA could apply to state and local

government employees. By definition, public employers are enterprises “engaged in commerce or

the production of goods for commerce” and are therefore covered by the FLSA. 29 U.S.C.

§§203(r), 203(s), 203(x).

Some employees, however, are exempt from certain provisions of the FLSA. For example,

“executive, administrative, or professional” employees are exempt from the FLSA’s minimum

wage and overtime provisions. 29 U.S.C. §213(a). Also, persons who are not employees, such as

independent contractors, volunteers, prison laborers, certain apprentices, and “trainees” are not

considered employees. The Department of Labor (DOL) and the courts, however, apply very

strict tests for determining whether an employee is exempt or not even an employee. These strict

tests apply equally to public and private sector employees. For example, the Supreme Court

upheld the Secretary of Labor’s “salary basis” test for determining whether an employee is an

executive, administrative, or professional employee in a public employer setting despite claims

that this “private sector” oriented test was too restrictive for public employers. Auer v. Robbins,

519 U.S. 452, 137 L.Ed.2d 79, 117 S.Ct. 905 (1997). See §§5.68 – 5.71 for a discussion of areas

that the FLSA regulates for employees who are covered by the Act.

On August 23, 2004, new regulations defining which employees are exempt from overtime

under the Fair Labor Standards Act became effective. Given fears that FLSA regulations were not

employee-friendly, Illinois passed revisions to the Minimum Wage Law, 820 ILCS 105/1, et seq.,

to codify the old regulations for employees in the state. See §5.74 below. Thus, where the state

and federal laws now conflict, an employer must defer to the provision that provides employees

with the greater benefit.

a. [5.68] Minimum Wages

Basically, public employers must pay their employees at least the current minimum wage as

established by Equal Pay Act §206(a)(1). Under the Fair Labor Standards Act, wages, however,

may include the reasonable cost to the employer of furnishing its employees’ board, lodging, or

other facilities (if they are customarily furnished and are not excluded under a union contract). 29

U.S.C. §203(m). Also, employers may consider the wages to “tipped” employees such as waiters

to be increased by up to 50 percent of the minimum wage rate provided the employee (1) keeps

the tips, (2) has been informed about the pay system, and (3) actually earns at the least that

amount in tips.

NOTE: Illinois’ state minimum wage is above the current federal minimums. Public employers

will have to comply with the higher state law requirements. See §5.74 below.

b. [5.69] Equal Pay Act, ADEA, and FMLA

The Equal Pay Act, the Age Discrimination in Employment Act, and the Family and Medical

Leave Act are actually part of the Fair Labor Standards Act. The ADEA and the EPA are

discussed in §§5.10 and 5.13 above; the FMLA is addressed in §5.136 below.

c. [5.70] Overtime

Except as otherwise provided in the Fair Labor Standards Act, employers may not employ

their nonexempt employees for longer than 40 hours in a workweek without paying them at least

one and one-half times their regular rate of pay for the “overtime.” 29 U.S.C. §207(a). Two of the

several exceptions to this requirement may apply to certain enumerated municipal employees.

First, public employers are permitted to establish a work period of up to 28 days (rather than the

normal 7) for computing overtime for fire protection and law enforcement employees. 29 U.S.C.

§207(k). For example, if scheduled to work 28-day periods, firefighters will not qualify for

overtime until they work over 212 hours (53-hour weeks), and police officers must first work 171

hours (43-hour weeks). 29 C.F.R. §553.230. For shorter periods, the same number of hours per

week also applies. The regulations list in detail what time is considered “compensable hours of

work” (comp time) for the purposes of computing overtime. 29 C.F.R. §553.221.

The second overtime exception useful to public employers is the FLSA’s comp time

provision. Provided there is some prior agreement between a public employer and the union (or

the employees themselves if they are unorganized), a public employer may provide employees

with comp time instead of overtime, provided (1) comp time is earned at a rate of one and onehalf

hours for each hour of overtime worked; (2) employees engaged in public safety activities,

emergency response activities, or seasonal activities must be paid cash overtime for overtime

worked after they have accrued 480 hours of comp time (320 actual overtime hours plus one

half); (3) all other employees must be paid cash overtime after accruing 240 hours (160 actual

overtime hours); and (4) employees wishing to use their comp time are allowed to do so within a

reasonable period after making the request “if the use of the compensatory time does not unduly

disrupt the operations of the public agency.” 29 U.S.C. §207(o).

The Supreme Court, in Christensen v. Harris County, 529 U.S. 576, 146 L.Ed.2d 621, 120

S.Ct. 1655 (2000), clarified an ongoing dispute regarding whether, absent a preexisting

agreement, an employer may force an employee who has accrued comp time to take it. One

circuit court of appeals had held that comp time was an employee’s property, and thus the

employee had the right to bank the time for future use at a time of his choosing. Two other

circuits had disagreed with that position. The Supreme Court held that nothing in the FLSA or its

regulations prohibits an employer from compelling the use of comp time. Thus, an employer may,

absent an agreement otherwise, require an employee to take comp time off. (Municipalities

wishing to do so, however, may be restricted by collective bargaining agreements with their

employees. A municipality should check its contract and with its legal counsel before forcing an

employee to take comp time.)

The court, in Beck v. City of Cleveland, 390 F.3d 912 (6th Cir. 2004), cert. denied, 125 S.Ct.

2930 (2005), found that the City of Cleveland, Ohio violated the FLSA when it refused to let

more than 1300 police officers take comp time off because doing so would require Cleveland to

pay overtime to substitute officers. Under the Department of Labor’s regulations interpreting the

FLSA, municipalities must grant comp time requests “within a reasonable period . . . if the use of

compensatory time does not unduly disrupt [ ] operations.” 29 U.S.C. §207(o)(5). In its decision,

the Sixth Circuit ruled that Cleveland did not establish that the cost of allowing the officers to

take comp time would “unduly disrupt operations.” The court reasoned that Cleveland’s alleged

disruption went to the fiscal impact of comp time — not to the disruption of operations.

The Seventh Circuit has yet to rule on this issue. However, one of the Seventh Circuit’s

district courts has ruled that municipalities must grant comp time even if doing so means that it

must pay substitutes overtime. Debraska v. City of Milwaukee, 131 F.Supp.2d 1032, 1037

(E.D.Wis. 2000). Under the current state of the law, municipalities in Illinois face considerable

risk if they refuse to grant comp time requests on the basis that doing so would require them to

pay overtime to substitute employees.

d. [5.71] Child Labor

The Fair Labor Standards Act bans “oppressive child labor” and the shipment in commerce of

goods produced in an establishment employing children in such labor. 29 U.S.C. §212. Basically,

employers engage in “oppressive child labor” when they hire children younger than 16 years of

age. 29 U.S.C. §203(l). For jobs deemed hazardous by the Department of Labor, employees must

be at least 18 years old. Employers may, however, hire 14- and 15-year-olds to some positions

subject to DOL restrictions and requirements on the hours worked, type of job, etc. 29 U.S.C.

§§212, 214.

2. [5.72] Record-Keeping Requirements

All employers subject to the Fair Labor Standards Act must make, keep, and preserve records

of their employees, wages, hours worked, and other conditions of employment. 29 U.S.C.

§211(c); 29 C.F.R. Part 516. Department of Labor regulations also require employers to make

these records available to the DOL when requested. 29 C.F.R. §516.8.

Record-keeping is vitally important in case the employer is ever charged with violating the

FLSA. Courts do not look kindly on an employer disputing an employee’s claim of the hours

worked when the employer has inadequate, incomplete, or nonexistent records. Brock v. Seto, 790

F.2d 1446 (9th Cir. 1986) (when employer kept no records, employees were entitled to back

wages based on reasonable inferences from their testimony), cert. denied, 109 S.Ct. 864 (1989).

Employers should retain their records for at least six years.

3. [5.73] Enforcement and Penalties

Employers are prohibited from violating the Fair Labor Standards Act or discharging or

otherwise discriminating against employees who file claims or testify in FLSA proceedings. 29

U.S.C. §215(a). Both the Department of Labor and individual employees have the right to file suit

in federal or state court over FLSA violations. An employee’s right to sue, however, is terminated

upon the filing of a complaint by the DOL to order employers to comply and pay money due and

owing employees. 29 U.S.C. §216(b). Lawsuits alleging FLSA violations, however, must be filed

within two years after the cause of action accrued or within three years if the action arose out of a

willful violation. 29 U.S.C. §255(a).

The Supreme Court, however, has since limited the ability of individuals to sue states for

FLSA violations. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 134 L.Ed.2d 252, 116

S.Ct. 1114 (1996), the Supreme Court, by a five-four decision, held that Congress cannot

abrogate a state’s Eleventh Amendment immunity when acting pursuant to its Article I commerce

clause power. Thus, private damages lawsuits against states, pursuant to federal legislation passed

under Congress’s commerce clause, are barred from federal and state courts. Alden v. Maine, 527

U.S. 706, 144 L.Ed.2d 636, 119 S.Ct. 2240 (1999) (extending prohibition to suits brought in state

court to enforce such federal legislation). States are still obligated to comply with the FLSA,

however, and the DOL can take action to enforce these laws against states. Local governmental

agencies, including municipalities, are still subject to suit by individuals to the extent the federal

statutes, such as the FLSA, authorize them. However, as explained in §5.18 above, Illinois has

waived its sovereign immunity vis-à-vis the FLSA, such that it can now be sued by state

employees in federal and state courts for FLSA violations. See 45 ILCS 5/1.5.

Employers in violation of the FLSA will be found liable for any unpaid overtime/minimum

wages plus an equal amount of liquidated damages. 29 U.S.C. §216(b). Employers who

discriminate against employees who institute complaints or testify, in addition to paying makewhole

backpay and liquidated damages, will be required to correct the discrimination

(reinstatement, promotion, etc.). Courts, however, can deny liquidated damages when the

employer can demonstrate that it acted in “good faith,” i.e., that the employer acted in conformity

with a DOL regulation, ruling, or administrative order and relied on it in good faith. 29 U.S.C.

§259(a); 29 C.F.R. §§790.13 – 790.19.

B. [5.74] Minimum Wage Law

The Illinois Minimum Wage Law parallels the Fair Labor Standards Act in many respects.

However, the state’s minimum wage for employees 18 years of age or older is $6.50 per hour

since January 1, 2005. Further, employees under the age of 18 cannot be paid less than 50 cents

below the minimum wage. Unlike the FLSA, which allows employers to count tips for up to 50

percent of the minimum wage requirement (29 U.S.C. §203(m)), the Illinois law provides that tips

can be counted for up to only 40 percent of the minimum wage (820 ILCS 105/4(c)). Employers

must be aware that minimum compliance with the FLSA does not ensure compliance with Illinois

law.

The Illinois Minimum Wage Law was amended in 2004 in response to fears over changes in

FLSA regulations. In particular, the Illinois Minimum Wage Law maintains the old FLSA

regulations defining executive, administrative, and professional employees, but adopts the

FLSA’s new regulatory minimum salaries. 820 ILCS 105/4a(2)(E). Second, public sector

employers must now comply with the Law’s overtime provisions. While the Law includes some

of the exemptions in the FLSA applicable to public sector employees, it inexplicably leaves out

others. For example, while the amendments track the FLSA with regard to compensatory time as

provided in §207(o) (dealing with comp time for public sector employees) and §207(k)

(providing direction on overtime compensation for fire protection and law enforcement

employees), the amendment does not include the “special detail” work exemption for fire

protection and law enforcement employees nor the “occasional or sporadic employment”

exemption contained in §207(p) of the FLSA.

Third, the Law fails to include exemptions for employees who do seasonal work in

recreational or amusement establishments. Many park districts and municipalities operate

seasonal swimming pools, golf courses, and other recreational facilities that were exempted under

the FLSA. Under the Illinois law, employees of these establishments are no longer exempt from

overtime eligibility, except for a limited exemption for organized camp employees.

The following are among the Law’s other requirements:

1. Employers must post a summary of the Law’s provisions. 820 ILCS 105/9.

2. Records of employees, their pay, and hours worked must be kept three years. 820 ILCS

105/8.

3. An equal pay requirement similar to that of the Equal Pay Act exists but is applicable for

disparities based on sex or “mental or physical handicap.” 820 ILCS 105/4(b).

The Law permits both the Illinois Department of Labor (IDOL) and aggrieved employees to

enforce the Law. Employees have three years after a violation to bring suit. 820 ILCS 105/12.

Employers liable to employees in civil court will be assessed backpay or underpay owed, an

additional 20 percent of the wages owed as a penalty payable to the IDOL, 2 percent interest each

month for every month during which underpayments remained unpaid, costs, and attorneys’ fees.

The IDOL may have the employee’s claim assigned to it and sue on the employee’s behalf for the

same remedies.

When the IDOL sues on its own for violations of the minimum wage or overtime provisions,

it may seek the amount owed, punitive damages equal to the amount owed, and attorneys’ fees.

820 ILCS 105/12(b). Currently, it appears that the IDOL is not subject to any statute of

limitations period for filing suit on its own since the Minimum Wage Law’s three-year limitations

period is listed only in the section addressing employee and employee-assigned suits. See People

ex rel. Martin v. Smith, 205 Ill.App.3d 553, 563 N.E.2d 1170, 151 Ill.Dec. 64 (4th Dist. 1990) (no

statute of limitations for claims brought by IDOL); People ex rel. Martin v. Schwartz Oil Field

Services, Inc., 203 Ill.App.3d 903, 561 N.E.2d 201, 148 Ill.Dec. 895 (5th Dist. 1990) (no

limitations period). But see Amigleo v. Bernardi, 175 Ill.App.3d 449, 529 N.E.2d 1020, 124

Ill.Dec. 903 (1st Dist. 1988) (dicta indicating three-year limitations period applies).

Employers who violate the Law or discriminate against employees exercising their rights

under the Law will be found guilty of a misdemeanor. 820 ILCS 105/11.

C. [5.75] Illinois Equal Pay Act

The Illinois Equal Pay Act expands the federal Equal Pay Act to public and private employers

with four or more employees. The Act is addressed in §5.38 above.

D. [5.76] Illinois Equal Wage Act

Section 1 of the Illinois Equal Wage Act, 820 ILCS 110/1, et seq., prohibits employers of six

or more persons “engaged in the manufacture of any article” from paying unequal wages for

equal work. Like the Illinois Equal Pay Act and the Illinois Minimum Wage Law, the Equal

Wage Act does not prohibit differences based on seniority, experience, training, skill, duties

performed, or any other reasonable classification except sex. Violators face fines of up to $100.

Passed during World War II, this law most likely does not apply to municipal employers and in

any event has been superseded by the Illinois Human Rights Act (see §§5.26 – 5.35 above) and

Illinois Equal Pay Act (see §5.38 above), which do apply to public employers.

E. [5.77] Illinois Wage Payment and Collection Act

The Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq., applies to all

employers — including public employers. Basically, the Act dictates how employees are to be

paid, what deductions are proper, to what notice employees are entitled, the effect of earned

vacation time, and what penalties there are for violations.

1. [5.78] Wages

For the purposes of the Wage Payment and Collection Act, an employer’s collective

bargaining duties or other legal obligations to contribute to an employee benefit, trust, or fund on

the basis of a certain amount per period of time are treated as wages subject to the provisions of

the Act. 820 ILCS 115/2, 115/8. To the extent the Act addresses contributions to benefit plans as

wages, however, the courts have held the Act is preempted by the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C §1001, et seq. Arnold v. Babcock & Wilcox Co., 123

Ill.2d 67, 525 N.E.2d 59, 121 Ill.Dec. 253 (1988) (ERISA preempted suit for severance benefits);

Baker v. Caravan Moving Corp., 561 F.Supp. 337 (N.D.Ill. 1983). ERISA does not apply,

however, to public employees.

Similarly, the National Labor Relations Act (NLRA), 29 U.S.C. §151, et seq., has been held

to preempt the Wage Payment and Collection Act in certain situations. See, e.g., National

Metalcrafters, Division of Keystone Consolidated Industries v. McNeil, 784 F.2d 817 (7th Cir.

1986) (NLRA preempted suit to force employer to pay vacation benefits to striking workers).

Although the NLRA does not apply to public employers, the Illinois Public Labor Relations Act

does. It expressly states that its provisions “or any collective bargaining agreement negotiated

there under” shall prevail over any conflicting rule or law relating to wages, hours, and conditions

of employment. 5 ILCS 315/15.

2. [5.79] Pay Periods and Time Limits for Payment

At least semimonthly, employers must pay employees in cash, by check, or electronically all

wages earned during the semimonthly pay period. The one exception under §4 of the Illinois

Wage Payment and Collection Act is that executive, administrative, and professional employees

(as defined by the Fair Labor Standards Act) may be paid monthly. Wages earned by an

employee during a semimonthly or biweekly pay period must be paid not later than 13 days after

the end of the pay period in which the wages were earned. If the pay period is weekly, the

employee must be paid not later than seven days after the end of the period; if the pay period is

daily, payment must be within 24 hours. Executive, administrative, and professional employees

on monthly pay periods must be paid on or before 21 days after the end of the month in which the

wages were earned. The time-of-payment provisions, however, may be modified by a collective

bargaining agreement.

3. [5.80] Separation Pay and Unused Vacation Time

Under §5 of the Illinois Wage Payment and Collection Act, employers shall pay final, full

compensation to terminated employees at the time of separation if possible but no later than the

next regularly scheduled payday. Employers also must comply with requests to have final

paychecks mailed to the employee. Unless a collective bargaining agreement provides otherwise,

whenever an employer through a contract or by policy provides for paid vacations and the

terminated employee has vacation time coming, the employee is entitled to be paid at the final

wage rate for all unused vacation time. This is true even if the employee’s contract states vacation

benefits are not “earned” until the end of the fiscal year. The employee will still be entitled to a

pro rata share. Mueller Co. v. Department of Labor, 187 Ill.App.3d 519, 543 N.E.2d 518, 135

Ill.Dec. 135 (4th Dist. 1989); Golden Bear Family Restaurants, Inc. v. Murray, 144 Ill.App.3d

616, 494 N.E.2d 581, 98 Ill.Dec. 459 (1st Dist. 1986).

4. [5.81] Wage Deductions

Under the Illinois Wage Payment and Collection Act employers are permitted to deduct from

employee wages only when the deductions are made (a) as required by law; (b) to the benefit of

the employee; (c) in response to a valid wage assignment or wage deduction order; (d) with the

express written consent of the employee, given freely at the time the deduction is taken; or (e) by

a municipality with a population of 500,000 or more, a community college district in a city with a

population of 500,000 or more, the Chicago Park District, the Metropolitan Transit Authority, or

the Chicago School Reform Board of Trustees to pay a debt provided that the amount deducted

from any one salary or wage payment not exceed 25 percent of the net amount of the payment

and provided that the municipality certifies that the employee has been afforded an opportunity

for a hearing to dispute the debt that is due and owing the municipality. 820 ILCS 115/9. If there

is a dispute over the legitimacy of the deduction, the employer still may withhold it provided the

employer informs the Illinois Department of Labor in writing on the date the wages are due of (a)

the amount withheld and (b) the reason for withholding. The IDOL will then investigate and

render a decision.

The IDOL’s regulations fully discuss deductions. For example, when an employer has

mistakenly overpaid an employee or there is a wage dispute between them otherwise, the

employer may withhold the amount it believes is due subject to several restrictions. If discovered

immediately and the employee agrees an overpayment occurred, the entire sum may be deducted

from the employee’s next paycheck. 56 Ill.Admin. Code §300.900. If the overpayment is not

discovered until after another payday has passed, the parties must agree to a repayment schedule.

If the employee refuses or disputes the overpayment, the employer first must notify IDOL of the

dispute by the date payment is due, explaining whom it affects, the amount being withheld, and

why. 56 Ill.Admin. Code §300.930. The employer then may deduct the disputed overpayment but

must not deduct more than 15 percent of an employee’s gross wages per paycheck. The IDOL

then gives the employee a chance to object; if the employee objects, the IDOL will investigate

and render a decision.

5. [5.82] Notice Requirements

Under §10 of the Illinois Wage Payment and Collection Act, employers must inform

employees at the time of hiring their rate of pay and the time and place of payment; preferably,

this should be done in writing and acknowledged by both parties. Employers also must notify

employees of any changes in pay or the time and place of payment before the changes are made.

Employers must keep records of employees and wages paid as well as provide employees with

itemized pay stubs indicating wages earned and deducted in each pay period. Finally, employers

must post in a prominent place at each regular place of business notices of the regular paydays

and times and places of payment and a Department of Labor summary of the Wage Payment and

Collection Act’s provisions.

6. [5.83] Enforcement and Remedies

The Illinois Department of Labor is responsible for enforcing the Wage Payment and

Collection Act. It is responsible for investigating and trying to resolve equitably any pay

controversies between employers and employees. 820 ILCS 115/11. If that fails, the IDOL is

authorized to prosecute actions on behalf of those who cannot sue for themselves. Employees also

have the right to sue on their own behalf. Although the Act is silent as to a statute of limitations

period, apparently employees have to file suit within the state’s general limitations period of five

years. The IDOL, however, is immune from such a limitation and may therefore file a civil suit at

any time. People ex rel. Martin v. Lipkowitz, 225 Ill.App.3d 980, 589 N.E.2d 182, 168 Ill.Dec. 68

(3d Dist. 1992) (IDOL not subject to five-year limitations period). Cf. Clark v. Western Union

Telegraph Co., 141 Ill.App.3d 174, 490 N.E.2d 36, 95 Ill.Dec. 563 (1st Dist. 1986) (indicating

limitations period applies to IDOL but is subject to tolling).

Employers and their officers and agents who willfully refuse to pay wages due under the Act

or otherwise falsely deny the validity of claims may be convicted of a Class C misdemeanor.

Employers who fail to pay wages within 15 days after being ordered by the IDOL or a court will

be penalized one percent of the amount due per day of delay up to an amount equal to twice the

amount of unpaid wages due. 820 ILCS 115/14. Finally, employers who knowingly discriminate

against employees who have complained to them or the IDOL about wages due under the Act or

who have instituted or testified in a proceeding under the Act will be found guilty of a Class C

misdemeanor.

F. [5.84] Wages of Women and Minors Act

The Wages of Women and Minors Act, 820 ILCS 125/0.01, et seq., is another law intended to

prevent employers from paying minors under age 18 or women at oppressive and unreasonable

wages. 820 ILCS 125/2. An “oppressive and unreasonable wage” is defined as “a wage which is

both less than the fair and reasonable value of the services rendered and less than sufficient to

meet the minimum cost of living necessary for health.” 820 ILCS 125/1. The Illinois Department

of Labor has the authority under the Act — and the duty if petitioned by 50 residents in a county

in which women or minors are employed in any occupation — to investigate the wages paid to

determine if substantial numbers of women or minors are receiving oppressive or unreasonable

wages. 820 ILCS 125/4.

NOTE: The Act defines “occupation” as an “industry, trade or business or branch thereof or class

of work therein in which women or minors are gainfully employed.” 820 ILCS 125/1. Although

yet to be decided, it is highly unlikely that “occupation” encompasses public employees and

employers.

If the IDOL believes oppressive and unreasonable wages are being paid, it must appoint a

wage board consisting of two employer representatives, two employee representatives, and one

disinterested public representative (who acts as the chair) to investigate the situation fully. 820

ILCS 125/5.1. The board has the power to order the production of records as well as take

depositions and other sworn testimony. Within 60 days of being organized, the wage board will

issue its recommendations as to the minimum fair wage standards for women or minors in the

industry or occupation it was appointed to investigate. A “fair wage” is one “fairly and reasonably

commensurate with the value of the services or class of service rendered.” 820 ILCS 125/1.

The IDOL may tentatively accept the board’s finding or reject it and remand it to the board or

constitute a new board. If the IDOL accepts the recommendation, the board publishes it and holds

a public hearing before rendering a final decision. 820 ILCS 125/6, 125/10. If the IDOL approves

the recommendations, they are published in the form of a non-mandatory, “directory” order. If

employers fail to pay the “directory” fair wages, the IDOL will publish their names in an Illinois

newspaper or newpapers (or in some other appropriate manner) as violators of the fair wage

order. 820 ILCS 125/9.

If after the directory order has been in effect for nine months employers continue to disobey

it, the IDOL may make the directory order a mandatory regulation. Employers and their officers

and agents who disobey mandatory wage minimums may be found guilty of a Class B

misdemeanor. 820 ILCS 125/15. Employees (or the IDOL if the employee assigns the claim) also

may sue to recover underpaid wages plus costs and attorneys’ fees. 820 ILCS 125/16.

As with many of these laws, employers are prohibited from discriminating against employees

who exercise their rights under the Act or who participate in Act proceedings. Violators will be

found guilty of a petty offense. Employers also must keep records of hours worked and wages

paid or else be found guilty of a petty offense. 820 ILCS 125/15. Finally, employers must post

directory and mandatory fair wage orders in every room in which minors or women are

employed. 820 ILCS 125/14.

G. Prevailing Wage Act

1. [5.85] Purpose and Relevance

The Prevailing Wage Act (PWA), 820 ILCS 130/0.01, et seq., is designed to set minimum

general prevailing wages for all work performed by laborers, workers, and mechanics employed

in any public works by any public body (which includes municipalities) and to anyone under

contracts for public works. 820 ILCS 130/1, 130/2. The term “public works” is defined as “all

fixed works constructed for public use by any public body, other than work done directly by any

public utility company, whether or not done under public supervision or directions, or paid for

wholly or in part out of public funds.” 820 ILCS 130/2.

Of course, all municipalities must follow the PWA when contracting for public works.

Additionally, at some point a court could attempt to apply the Act to public employees engaged in

public works. The Illinois Supreme Court first rejected this proposition in 1953 on the grounds

that public employees were not covered in the Act’s title; therefore, it could not apply to them.

Bradley v. Casey, 415 Ill. 576, 114 N.E.2d 681 (1953). After legislative amendments made the

Act applicable to work “by any public body,” the court agreed it applied to public employees but,

nevertheless, found that the Act lumped public employees and private employees together for

purposes of determining prevailing wages, which was irrational because the two groups received

vastly differing fringe benefits and job security. City of Monmouth v. Lorenz, 30 Ill.2d 60, 195

N.E.2d 661 (1963).

Since then, the legislature has amended the PWA to include benefits in the term “wages,” but

the Attorney General has indicated that public employees still are not covered. Op. Att’y Gen.

(Ill.) No. 84-013. The inclusion of benefits in the term “wages,” however, has led to claims that

the Employee Retirement Income Security Act now preempts that portion of the PWA.

Construction & General Laborers’ District Counsel of Chicago & Vicinity v. James McHugh

Construction Co., 230 Ill.App.3d 939, 596 N.E.2d 19, 172 Ill.Dec. 740 (1st Dist. 1992) (PWA

preempted by Employee Retirement Income Security Act as far as plaintiffs seeking to recover

unpaid pension contributions in form of “fringe benefits”). Although it likely does not apply to

public employees, the PWA still must be followed by contractors.

2. [5.86] Prevailing Wages

The Prevailing Wage Act requires that “not less than the general prevailing rate of hourly

wages for work of a similar character on public works in the locality in which the work is

performed, and not less than the general prevailing rate of hourly wages for legal holiday and

overtime work, shall be paid to all laborers, workers and mechanics employed by or on behalf of

any public body engaged in the construction of public works.” 820 ILCS 130/3. The public body

undertaking the public works (or the Illinois Department of Labor if the public body requests) is

responsible for determining what the prevailing wage rate is for each job classification needed.

820 ILCS 130/4. The wage rate and overtime and holiday rates must be noted in the ordinance

and in any call for bids for the contract and must be followed by contractors awarded the contract.

All contracts must specify that laborers, workers, and mechanics performing work under the

contract must be paid not less than the prevailing wage. All contractor bonds also must guarantee

faithful performance of the prevailing wage clause. If for some reason the municipality or the

IDOL cannot ascertain the prevailing wage, it must note this fact in its resolution, notice for bids,

etc. 820 ILCS 130/8.

In addition, each June municipalities and the IDOL are required to investigate and ascertain

the prevailing wage rates. If the municipality does not, its prevailing wage rate will be determined

by the IDOL. 820 ILCS 130/9. The entity that determines the wages must, after filing its

determination with the proper authority, publish the wage rates in a newspaper and send copies of

the rates to persons who request them. Persons affected by the rates have 15 days after the

publishing to object. The municipality (or the IDOL) must then hold a hearing to determine the

appropriateness of the rates. Its decision may be appealed to the courts.

3. [5.87] Record-Keeping Requirements

Under the Prevailing Wage Act, contractors and subcontractors or the officer of the public

body in charge of the project must keep or cause to be kept records listing the names,

occupations, and actual hourly wages paid to each laborer, worker, and mechanic employed by

them on the public works project. 820 ILCS 130/5. These records must be available at all

reasonable hours for inspection by the Illinois Department of Labor and the public body awarding

the contract.

In addition, any contractor or subcontractor working on a prevailing wage project must

submit a certified payroll to the public body in charge of the project on a monthly basis. Failure to

do so or the filing of a false payroll record is a Class B misdemeanor. 820 ILCS 130/5.

4. [5.88] Enforcement

No public works project may be instituted unless it is in compliance with §11 of the

Prevailing Wage Act. The Illinois Department of Labor may obtain an injunction against the

awarding or performance of any contract when the prevailing wage prerequisites have not been

met. Additionally, such contracts will be considered void as against public policy, and the

contractor will be able to recover only for the material and labor already supplied to the public

body. There are also certain restrictions on performing a contract when objections have been

made to the prevailing wage rate.

Laborers, mechanics, and workers who are paid less than the prevailing wage under a public

works contract may sue for the difference plus costs and attorneys’ fees. The defendant contractor

also will be liable to the IDOL for a fee equal to 20 percent of the underpayments and will owe

the laborers, workers, and mechanics bringing suit punitive damages equal to “2 [percent] of the

amount of any such penalty to the State for underpayments for each month following the date of

payment during which such underpayments remain unpaid.” 820 ILCS 130/11. The IDOL also

has the right to bring suit or to take an assignment of wage claims from the employees and then

sue. These actions for underpayments will be treated as suits for wages.

Officers and agents of public bodies who willfully violate the Prevailing Wage Act and

subcontractors who neglect to keep accurate records or deny access to such records may be found

guilty of a Class A misdemeanor. 820 ILCS 130/6. For second and subsequent violations, a

contractor or subcontractor who pays less than the prevailing wage is liable to the IDOL for 50

percent of the underpayment and is liable to the worker for punitive damages based on the

amount of time the penalty remains unpaid. Contractors who fail to comply with the Act at least

two times within five years will have their names published in the Illinois Register as having

disregarded their legal obligations to employees under the Act. 820 ILCS 130/11a. Also, such a

contractor or subcontractor shall be barred from entering into public contracts for four years.

H. [5.89] Eight Hour Work Day Act; One Day Rest in Seven Act

Section 1 of the Eight Hour Work Day Act, 820 ILCS 145/0.01, et seq., states that eight hours

of work during the daylight hours shall constitute a legal day’s work “in all mechanical trades,

arts and employments, and other cases of labor and service by the day,” provided there is no

contract or agreement to the contrary.

The One Day Rest in Seven Act, 820 ILCS 140/1, et seq., which probably does not apply to

public employers, requires employers to provide every employee with at least 24 consecutive

hours of rest in every calendar week. 820 ILCS 140/2. There are several exceptions for part-time

employees working no more than 20 hours per week for the employer; employees needed in

emergencies requiring their experienced skills; professional, executive, and administrative

employees under the Fair Labor Standards Act; and employees in certain industries. Each Sunday

employers are required to post a schedule listing employee rest days. 820 ILCS 140/4. Employers

also are required to provide meal periods of at least 20 minutes beginning no later than five hours

after the start of work for employees scheduled to work at least seven and one-half hours. 820

ILCS 140/3. The One Day Rest in Seven Act has record-keeping requirements, provisions

allowing employers to apply to the Illinois Department of Labor for exceptions, and a penalty

provision making One Day Rest in Seven Act violations a petty offense subject to fines of no

more than $100 per offense. 820 ILCS 140/5, 140/6, 140/7, 140/8.

I. [5.90] Employee Medical Contribution Act

Under the provisions of the Employee Medical Contribution Act, 820 ILCS 150/1, et seq., an

employee who has agreed to have an employer deduct from wages payments for any medical

service plan has the right to continue participation in the plan for up to six consecutive months in

the event the employee is not earning enough to cover the money normally deducted, provided

the employee (1) pays the employer in cash the amount usually deducted (unless the employer

agrees to cover it on the employee’s behalf); (2) retains recall rights with the employer; and (3)

does not accept any employment elsewhere. Employers who violate the Act may be found guilty

of a petty offense. In most, if not all, circumstances in which the Act may apply, the Consolidated

Omnibus Budget Reconciliation Act of 1985 (COBRA), Pub.L. No. 99-272, 100 Stat. 82 (1986),

now provides greater benefits. See §§5.171 – 5.176 below.

J. [5.91] Employee Benefit Contribution Act

As required by the Employee Benefit Contribution Act, 820 ILCS 160/0.01, et seq., an

employer who (1) has agreed in writing to make payments into a welfare, vacation, health,

pension, profit-sharing, or other such plan; (2) intentionally fails to make the promised payments

within 30 days after they are due; and (3) has been given 30 days’ written notice of default by the

plan’s representative will be found guilty of a business offense. For subsequent offenses, the

employer will be found guilty of a Class B misdemeanor. These penalties are in addition to any

civil liability for failing to make the payments. 820 ILCS 160/1.

Additionally, an employer has an obligation to notify its employees when it stops making

payments when the failure to make payments may result in the loss of insurance coverage. 820

ILCS 160/2. This allows the employees a chance to make other arrangements. Notification may

be made by posting a notice in a conspicuous place. The failure to provide timely notification is a

Class B misdemeanor if it results in the loss of opportunities to replace the insurance coverage

and causes damage to employees.

K. [5.92] Personal Service Wage Refund Act

The Personal Service Wage Refund Act, 820 ILCS 165/1, et seq., which applies to any group

of persons employing union members paid a set wage according to a collective bargaining

agreement, prohibits employers from attempting or inducing the employees “to pay back, return,

donate, contribute or give any part or all” of their wages to the employer or its agents as a refund,

gift, or donation. 820 ILCS 165/2. The only exceptions are for deductions made for social

security, unemployment compensation, union dues, savings plans, social clubs, and any pension

or health insurance plans. Violators will be found guilty of a petty offense for each individual

employee involved in the violation. 820 ILCS 165/4. How the Act may apply if it conflicts with a

collective bargaining agreement is unclear in light of provisions in the Illinois Public Labor

Relations Act declaring that collective bargaining agreements take precedence. 5 ILCS 315/15.

L. [5.93] Earned Income Tax Credit Information Act

An “employer,” defined as anyone subject to providing unemployment insurance to its

employees, is required by the Earned Income Tax Credit Information Act, 820 ILCS 170/1, et

seq., to notify all “employees” (defined as those covered by unemployment insurance) who may

qualify for a tax credit that they may be eligible for a federal earned income tax credit and may

either apply for their credit on their tax returns or receive the credit in advance during the year.

820 ILCS 170/10, 170/15. The employer may meet the notice requirements by mailing any notice

available from the Internal Revenue Service for this purpose (for example, the Notice of a

Possible Federal Tax Refund Due to the Earned Income Credit) or a notice created by the

employer that is substantially the same as the IRS notice or a sample notice listed in the Act. 820

ILCS 170/15, 170/20. The notices must be mailed within one week before or after the employer

provides employees with their Form W-2. 820 ILCS 170/15.

VII. WORKERS’ COMPENSATION, OCCUPATIONAL DISEASE,

DISABILITY, AND DEATH BENEFITS

A. [5.94] Workers’ Compensation Act

The Workers’ Compensation Act (WCA), 820 ILCS 305/1, et seq., is designed to provide a

method for the fair compensation of employees, their dependents, or their survivors for accidental

injuries or death suffered during the course of a person’s employment. In doing so, however, an

employer’s liability for accidental on-the-job injuries is limited to that provided for in the WCA.

All public employers are subject to the WCA, as are general contractors and subcontractors.

WCA §§3, 4. All public employees are covered with the exception of members of police or fire

departments in cities with populations exceeding 200,000. WCA §1(b). Fire department members

in such cities, however, are still eligible under the WCA for compensation for disfiguring burns.

WCA §8(c).

Public Act 94-0277, effective July, 2005, dramatically changed the workers’ compensation

system to reduce costs for businesses, increase benefits for workers, and fight fraud. This was the

first major overhaul of the Illinois workers’ compensation system in nearly 20 years. Among the

changes, the new law increases the minimum benefit for a worker killed on the job from $400,000

for 20 years of payments to the greater amount of $500,000 or 25 years of payments. It also

increases burial benefits for fatally injured workers from $4,200 to $8,000 and provides more

benefits for low-wage workers.

1. [5.95] Employee Benefits Under WCA

An employee injured in a work-related accident is required by the Workers’ Compensation

Act to notify (orally or in writing) the employer as soon as possible but not later than 45 days

after the accident — or within 90 days after the employee suspects having received an overdose

of radiation. The notice should include the time, date, and place of the accident. Defective or

inaccurate notice, however, is not a bar to benefits unless the employer was unduly prejudiced.

820 ILCS 305/6. Injured employees are entitled to various types of benefits. For example, the

employer (or insurer) must pay for all medical treatment, rehabilitation, institutional care,

artificial limbs, eyeglasses, and other treatment and devices “reasonably required to cure or

relieve from the effects of the accidental injury.” 820 ILCS 305/8(a). In addition, the employer is

required to compensate an injured employee for lost income if the employee is unable to work for

more than three working days. 820 ILCS 305/8(b). The WCA sets forth a compensation rate of

two thirds of the employee’s average weekly wage but also sets minimum and maximum limits

on the rate. Employees who have suffered a permanent total disability, a permanent

disfigurement, or a permanent partial injury such as the loss of a limb are entitled to specific

compensatory amounts. The amount awarded equals 60 percent of an employee’s weekly pay

(provided it is within state minimum and maximum limits) multiplied by the number of weeks of

compensation to which the employee is entitled based on the type and extent of the injury. 820

ILCS 305/8, 305/10. Finally, survivors of employees who are killed in accidents also receive

benefits. 820 ILCS 305/10.

2. [5.96] Employer Obligations

Employers are required by the Workers’ Compensation Act to either be self-insured or carry

workers’ compensation insurance with an insurer licensed to issue such insurance in Illinois. 820

ILCS 305/4. Self-insurers must demonstrate to the Illinois Workers’ Compensation Commission

(IWCC) their financial ability to pay claims or else they will be required to furnish security,

indemnity, or a bond guaranteeing the payment of claims. Subject to certain limitations and

regulations, employers with similar risk characteristics may elect to pool their liabilities for the

purpose of qualifying as group self-insurers. 820 ILCS 305/4(a).

The minimum civil penalty for failure by an employer, service or adjustment company, or

insurance carrier to comply with the self-insurance provisions of the Act is the sum of $10,000.

820 ILCS 305/4(d). The IWCC “may assess the civil penalty personally and individually against

the corporate officers and directors of a corporate employer, the partners of an employer

partnership, and the members of an employer limited liability company, after a finding of a

knowing and willful refusal or failure” (id.) to comply with these provisions. Liability for failure

of the employer to comply with the self-insurance provisions shall be assessed against the named

employer first, and if the named employer fails or refuses to pay the penalty to the IWCC within

30 days after the final order of the IWCC, then the named corporate officers, directors, partners,

or members who have been found to have knowingly and willfully refused or failed to comply are

liable for the unpaid penalty or any unpaid portion of the penalty.

All employers are subject to strict posting, recording, and notice requirements. Employers

must post printed notices containing information about employee rights under the WCA in

conspicuous places as designated by the IWCC. Additionally, employers must post a notice

indicating whether they are self-insured or insured and, if insured, listing the name and address of

the carrier, the policy number, and the effective and termination dates. 820 ILCS 305/6.

Employers must keep accurate records of all work-related deaths, injuries, and illnesses other

than minor injuries that do not involve medical treatment, loss of consciousness, restriction of

work or motion, or a job transfer. Injuries resulting in death or the loss of more than three

scheduled workdays must be reported and filed with the IWCC within specified time limits. If the

injury results in a permanent disability, a more formal report must be completed.

3. [5.97] Administering Claims

Under §6(d) of the Workers’ Compensation Act, employees or their survivors have three

years from the date of the accident to file a claim with the Illinois Workers’ Compensation

Commission when no compensation has been paid (except medical bills), or two years from the

date the last payment of compensation was made, whichever is later. For radiation and asbestos

injuries, however, employees may file any time within 25 years after the last day the employee

was employed in a radiation or asbestos environment. If the radiation injury or asbestos injury

results in death within the 25-year limitations period, claims must be filed within the later of three

years after the date of death or within two years after the date of the last payment of

compensation.

When the parties themselves fail to reach an agreement, the IWCC appoints an arbitrator to

investigate and hold a hearing to decide the disputed issues. 820 ILCS 305/19(a). After the

arbitrator files the decision with the IWCC, it becomes final unless one or both of the parties file

a petition for review listing exceptions to the arbitrator’s findings within 30 days of receiving the

decision. Additionally, the objecting party must, within 35 days of the decision, file an agreed

statement of the facts appearing on the arbitration hearing or the transcript of evidence of the

hearing. 820 ILCS 305/19(b). No new evidence may be presented, but the parties may request

oral arguments before a panel of three commissioners (or all available commissioners if seven

commissioners so decide). The IWCC will review the arbitrator’s award and file its decision

within the later of 60 days after the parties have filed their briefs or after oral argument. 820 ILCS

305/19(e).

Except in cases of claims against the state, parties objecting to the IWCC’s decision may file

suit in circuit court for a judicial review of the decision. The court may confirm, set aside, or

remand the decision. Appeals from the circuit court’s decision may be made to a special fivejudge

panel of the appellate court. 820 ILCS 305/19(f). The appellate court’s decision is

practically final; petitions for leave to appeal to the Illinois Supreme Court may not be made

without the support of at least one appellate court justice who heard the case.

4. [5.98] Nondiscrimination Provisions

Under the Workers’ Compensation Act, employers are prohibited from failing to comply with

the WCA or failing to pay money owed. Most importantly, however, the WCA makes it unlawful

for any employer to interfere with, restrain, or coerce employees in the exercise of their rights or

to discriminate against them for exercising their rights. 820 ILCS 305/4(h). Violation of any

provision of the WCA constitutes a petty offense.

B. [5.99] Workers’ Occupational Diseases Act

The Workers’ Occupational Diseases Act, 820 ILCS 310/1, et seq., basically parallels the

Workers’ Compensation Act in purpose and application except that it covers employee injuries

and deaths resulting from occupational diseases. An “occupational disease” is a disease arising

out of and in the course of employment or that has become aggravated and rendered disabling as

a result of exposure during employment. 820 ILCS 310/1(d). Public employers are subject to the

Occupational Diseases Act, as are public employees, with the exception of fire department

employees (not police officers) in cities with over 500,000 inhabitants (as opposed to 200,000

under the WCA).

Except for that difference and some minor differences in the Act’s limitations periods and

benefit computations, the Occupational Diseases Act is almost identical to the WCA. The

Occupational Diseases Act is administered by the IWCC according to its powers under the WCA.

820 ILCS 310/13.

C. [5.100] Line of Duty Compensation Act

The Line of Duty Compensation Act, 820 ILCS 315/1, et seq., provides compensation to the

designated beneficiary of an employee who is killed in the line of duty. Note that these payments

come from the state, not the employer. Section 3(b) of the Act provides:

The amount of compensation, except for an Armed Forces member, shall be

$10,000 if the death in the line of duty occurred prior to January 1, 1974; $20,000 if

such death occurred after December 31, 1973 and before July 1, 1983; $50,000 if

such death occurred on or after July 1, 1983 and before January 1, 1996; $100,000 if

the death occurred on or after January 1, 1996 and before May 18, 2001; $118,000 if

the death occurred on or after May 18, 2001 and before July 1, 2002; and $259,038

if the death occurred on or after July 1, 2002 and before January 1, 2003. For an

Armed Forces member killed in the line of duty (i) at any time before January 1,

2005, the compensation is $259,038 plus amounts equal to the increases for 2003 and

2004 determined under subsection (c) and (ii) on or after January 1, 2005, the

compensation is the amount determined under item (i) plus the applicable increases

for 2005 and thereafter determined under subsection (c).

There are provisions for distributing the sum to be paid under the Act if no beneficiary has been

named. In no event, however, will compensation be paid unless a claim is filed within one year of

the employee’s death. 820 ILCS 315/4. This compensation is in addition to and not exclusive of

any pension rights, death benefits, or other compensation otherwise payable by law. 820 ILCS

315/5. In addition, a burial benefit of up to $10,000 shall be payable to the surviving spouse or

estate of a law enforcement officer or firefighter who is killed in the line of duty. 820 ILCS

315/3.5.

D. [5.101] Federally Provided Public Safety Officers Death and Disability Benefits

The federal government, by statute, provides death and permanent and total disability benefits

of more than $250,000 to public safety officers (including firefighters and police officers) injured

or killed in the line of duty. The level of these benefits shall be adjusted “to reflect the annual

percentage change in the Consumer Price Index for All Urban Consumers.” 42 U.S.C. §§3796(a),

3796(h). Benefits will not be paid if the death was caused by intentional misconduct of the

employee, if the employee was voluntarily intoxicated at the time, or if the employee was

performing his or her duties in a grossly negligent manner. Moreover, benefits will not be paid to

any individual who substantially contributed to the employee’s death or who is employed in a

capacity other than a civilian capacity. 42 U.S.C. §3796a.

Federal regulations define “line of duty” as follows:

(1) Any action which an officer whose primary function is crime control or

reduction, enforcement of the criminal law, or suppression of fires is obligated or

authorized by rule, regulations, condition of employment or service, or law to

perform, including those social, ceremonial, or athletic functions to which the officer

is assigned, or for which the officer is compensated, by the public agency he serves.

For other officers, “line of duty” means any action the officer is so obligated or

authorized to perform in the course of controlling or reducing crime, enforcing the

criminal law, or suppressing fires; and

(2) Any action which an officially recognized or designated public employee

member of a rescue squad or ambulance crew is obligated or authorized by rule,

regulation, condition of employment or service, or law to perform. 28 C.F.R.

§32.2(c).

“Permanent and total disability” means a medically determinable catastrophic, line-of-duty injury

that permanently prevents a public officer from performing any gainful work. 28 C.F.R. §32.2(h).

“Catastrophic injury” means consequences of an injury that permanently prevent an individual

from performing any gainful work. 28 C.F.R. §32.2(f).

E. [5.102] Public Employee Disability Act

The Public Employee Disability Act, 5 ILCS 345/0.01, et seq., requires municipalities and

most other public employers to continue to pay in full for up to one year any full-time law

enforcement officer or firefighter who is unable to perform his or her duties due to an injury

suffered in the line of duty. 5 ILCS 345/1(b). The employer must pay the employee on the same

basis on which he or she was paid before the injury, with no deduction in sick leave credits,

compensatory time for overtime accumulations or vacation, or service credits in a public

employee pension fund during the time the employee is unable to work, but not longer than one

year.

At any time during the period an employee is paid under the Act, the employing public entity

may order (at the expense of that entity) physical or medical exams to determine the degree of

disability. 5 ILCS 345/1(c). The Act is silent, however, as to how an employer must consider an

employee to be unable to work and what constitutes a line-of-duty injury. For example, one court,

interpreting the Act broadly, found a police officer eligible for line-of-duty injury benefits after

finding his severe muscle contraction headaches were caused by the stress from his interpersonal

relationship with his police chief. Swanson v. Village of Lake in the Hills, 233 Ill.App.3d 58, 598

N.E.2d 430, 174 Ill.Dec. 233 (2d Dist. 1992). On the other hand, in Furguiele v. Village of

Bensenville, No. 96 MR 0891 (18th Cir. Nov. 25, 1998), a court held that “line of duty” must

mean something more than simply that an employee is eligible for workers’ compensation

benefits. Instead, the injury must have been sustained in the context of the duties of a firefighter

over and above the duties of an ordinary employee, namely having the direct purpose of saving

the life or property of another person. More recently, the Illinois First District Appellate Court

ruled that the phrase “line of duty” found in the Public Employee Disability Act is equivalent to

the standard that is used for finding employee eligibility for workers’ compensation benefits. See

Mabie v. Village of Schaumburg, ___ Ill.App.3d ___, 847 N.E.2d 796, 301 Ill.Dec. 786 (1st Dist.

2006).

Employers may establish their own procedures for evaluating whether an on-duty injury is

disabling, but the procedures should comply with procedural due process requirements. Cholewin

v. City of Evanston, Illinois, 716 F.Supp. 369 (N.D.Ill. 1989) (city held free to evaluate claim

through any procedure that afforded officer adequate notice and opportunity to be heard), aff’d,

899 F.2d 687 (7th Cir. 1990). In Cholewin, the court held that an employer who denied an

employee disability pay provided due process by sending the employee two separate written

notices of evidence contradicting his claim and giving him sufficient time to respond. See §5.45

above for a discussion of what “process” may be due.

During the employee’s disability period, the employee may not be employed in any other

manner, with or without monetary compensation. 5 ILCS 345/1(d). Violators forfeit their

compensation under the Act from the date the violation begins. Additionally, any salary

compensation due the employee from workers’ compensation or other insurance provided by the

employer reverts to the employer during the time the employee is paid under the Act. Cholewin,

supra; City of Jacksonville v. Coop, 176 Ill.App.3d 527, 531 N.E.2d 157, 126 Ill.Dec. 24 (4th

Dist. 1988). Moreover, an employee currently receiving benefits under the Act is not entitled to

disability benefits for which he or she would qualify under the Illinois Pension Code, 40 ILCS

5/1-101, et seq. See §§5.190, 5.201 below.

The Illinois Fourth District Appellate Court has clarified a long-running debate regarding

how long an employee’s one-year benefit period actually runs. In Albee v. City of Bloomington,

No. 4-05-0923, 2006 Ill.App. LEXIS 492 (4th Dist. June 2, 2006), the court rejected the

employer’s contention that the benefit period runs for only 12 straight months from the date of

injury. Rather, the court interpreted the one-year benefit period as excluding those intervening

time periods when the employee may have returned to work. Thus, for example, an employee

who remains off of work for eight months due to a line-of-duty injury and then returns to work

for four months would still be entitled to four additional months of pay continuation if by chance

the employee’s injury required him or her to take additional leave, even if 12 months had elapsed

since the date of the original injury.

F. [5.103] Public Safety Employee Benefits Act

The Public Safety Employee Benefits Act (PSEBA), 820 ILCS 320/1, et seq., provides that

when a police officer, correction officer, correctional probation officer, or firefighter suffers a

“catastrophic injury” or is killed in the line of duty, the employer is obligated to pay health

insurance premiums under the employer’s health insurance plan for the officer or firefighter and

for his or her spouse and dependent children. In the event of the officer’s or firefighter’s

subsequent death, the employer’s obligation continues to the spouse until he or she remarries. The

employer’s obligation to a dependent child remains until the child reaches the age of maturity or

until the end of the calendar year in which the child attains the age of 25 if the child’s dependency

continues or if the child is a full-time or part-time student and remains dependent for support. 820

ILCS 320/10(a). “Firefighter” under the PSEBA includes a licensed emergency medical

technician (EMT) who is a sworn member of a public fire department. 820 ILCS 320/3.

To be eligible for insurance coverage, the “catastrophic injury” or death “must have occurred

as the result of the officer’s response to fresh pursuit, the officer or firefighter’s response to what

is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the

investigations of a criminal act.” 820 ILCS 320/10(b). “Catastrophic injury” is undefined in the

Act. While employers would prefer to give the term its normal meaning (and/or the meaning

given in the federal regulations implementing 42 U.S.C. §3796 (see §5.101 above)), the Illinois

Supreme Court has ruled that any public safety officer who receives a line-of-duty disability

pension has sustained a “catastrophic injury” under the PSEBA. Krohe v. City of Bloomington,

204 Ill.2d 392, 789 N.E.2d 1211, 273 Ill.Dec. 779 (2003).

Health insurance benefits payable from other sources shall reduce benefits payable under the

PSEBA. Any person who willfully and knowingly makes, or causes to be made, or assists or

conspires with another to make any false, fraudulent, or misleading oral or written statements to

obtain health insurance coverage under the PSEBA is guilty of a Class A misdemeanor and must

reimburse the employer for all benefits paid due to the fraud or other illegal activity. 820 ILCS

320/10(a)(2), 10(a)(3). The PSEBA also provides that if a firefighter or law enforcement,

correctional, or correctional probation officer is accidentally killed or unlawfully and

intentionally killed as specified in the Act on or after July 1, 1980, the state will waive certain

educational expenses that the children of the deceased incur while obtaining a vocationaltechnical

certificate or an undergraduate education at a state-supported institution. The total

amount waived shall be an amount equal to the cost of 120 credit hours, and the benefits continue

for a child who is a student in good standing at his or her respective institution until the child’s

25th birthday. 820 ILCS 320/15.

VIII. SAFETY AND HEALTH LAWS

A. [5.104] Occupational Safety and Health Act of 1970

The Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §651, et seq., was

created to provide “safe and healthful” working conditions, and specifically excludes public

employers from its provisions. 29 U.S.C. §652(5). OSHA does not apply to public entities such as

states and municipalities. For private sector employers, OSHA has provisions permitting the

Department of Labor to approve state plans for assuming the responsibility for enforcing safety

and health standards provided (1) the plan is at least as effective as OSHA standards and

enforcement procedures and (2) the plan applies to the state’s public employers. 29 U.S.C.

§667(c). Illinois has yet to submit a plan for private sector employer enforcement that has been

approved by the DOL.

B. Health and Safety Act

1. [5.105] Applicability

The Health and Safety Act, 820 ILCS 225/.01, et seq., applies to all employers in Illinois,

including public employers, except federal employers. 820 ILCS 225/2. Except in limited

circumstances, §4.1 of the Health and Safety Act provides that most regulations and standards

promulgated by the federal Occupational Safety and Health Act must also be adopted and

enforced by the Illinois Department of Labor. Thus, the IDOL will typically require

municipalities to comply with the OSHA regulations and standards, even though those standards

technically apply only to private sector employers.

2. [5.106] Safety and Health Standards

An employer, under the Health and Safety Act, has the duty to provide reasonable protection

to the lives, health, and safety of employees and to furnish each of its employees with equipment

and a place of employment free from recognized hazards that are likely to cause death or serious

physical harm. 820 ILCS 225/3(a). Employers must comply with all occupational health and

safety standards promulgated under the Act. By statute, all Occupational Safety and Health Act

standards automatically become state standards 60 days after their effective date unless the

Director of the Illinois Department of Labor has promulgated a rule “at least as effective in

providing safe and healthful employment and places of employment as a federal standard.” 820

ILCS 225/4.1(b). The Director of the IDOL has the authority to make, modify, or repeal any rule

subject to the “at least as effective” limitation and provided the Director follows certain

procedural requirements such as holding a public hearing. The Director also may, in certain

instances, grant an employer a temporary variance from a new health and safety rule when the

employer is unable to comply by the effective date. 820 ILCS 225/4.2.

3. [5.107] Notice and Record-Keeping Requirements

The Health and Safety Act requires employers to furnish their employees with information

regarding hazards in the workplace, including information about suitable precautions, relevant

symptoms, and emergency treatment. 820 ILCS 225/3(d). Employers also are required to post

Illinois Department of Labor notices informing employees of the protections and obligations

provided for in the Act in a conspicuous place. 56 Ill.Admin. Code §350.130.

Employers are required to maintain accurate records and report work-related deaths, nonfatal

occupational illnesses, and every nonfatal injury that involves one of the following: loss of

consciousness, restriction of work or motion, transfer to another job, or medical treatment other

than routine first aid. 820 ILCS 225/4; 56 Ill.Admin. Code §350.220. Fatal accidents or accidents

resulting in the hospitalization of five or more employees must be reported to the IDOL as soon

as possible but not later than the next working day after the accident. Records must be kept for at

least five years, and employers must make these records available to the IDOL and, upon request,

employees, former employees, and employee representatives. 56 Ill.Admin. Code §§350.260 –

350.270. By February 1 of each year, employers also must post an annual summary of all

occupational injuries and illnesses that occurred in the workplace. 56 Ill.Admin. Code §350.250.

4. [5.108] Enforcement

The Illinois Department of Labor is responsible for implementing, administering, and

enforcing the Health and Safety Act. In addition to its rule-making powers, the IDOL has the

power under the Safety Inspection and Education Act, 820 ILCS 220/0.01, et seq., to inspect

workplaces during working hours and at other reasonable times to ensure compliance with safety

regulations and if necessary seek a warrant for entry in order to do so. 820 ILCS 220/2(b)(2). Its

goal is to abate outstanding violations and assure the safety of workers. It may institute an

inspection on its own or at the written request of employees or representatives of employees who

believe that a violation of health or safety standards exists. 820 ILCS 220/2.1(a). It also may

question employers and employees, inspect records, and order the production of other evidence it

deems necessary to determine whether a violation exists. 820 ILCS 220/2(b)(3).

If upon inspection the IDOL believes an employer has violated the Act or a standard

promulgated under it, it will issue a citation describing the violation and ordering it to be

corrected within a certain time. 820 ILCS 220/2.3(a)(1). The employer must post the citation at

the place at which the violation occurred. 820 ILCS 220/2.3(a)(3). The IDOL also may fine the

employer in addition to issuing a citation although to date it has not found it necessary to levy

penalties against public employers to maintain compliance. In cases of serious violations, when a

substantial probability of death or serious physical harm exists (unless the employer could not

have reasonably been aware of it) the employer will be fined. Fines can range up to $1,000 per

violation or up to $10,000 for employers who willfully or repeatedly violate the regulations. 820

ILCS 220/2.3(b)(1)(E). Employers failing to correct a violation may be fined up to $1,000 for

each day the violation continues. The IDOL may file a complaint in circuit court to stop

violations if it believes the working conditions present an “imminent danger” that can reasonably

be expected to cause death or serious physical harm. 820 ILCS 220/2(b)(7)(B).

Employers found in violation of the Act may request in writing a hearing before the director

of the IDOL to appeal the citation, the penalty, or the period for complying with an order.

Employees and employee representatives also have the right to appeal on the grounds that the

time period for complying with the citation is unreasonably long. After the hearing, the Director

will enter a final decision affirming, modifying, or vacating the citation. Parties wishing to appeal

this final decision may file suit in circuit court within 35 days of the entry of the order. 820 ILCS

220/2.4.

5. [5.109] Nondiscrimination Provisions

Employers are prohibited from discharging or discriminating against an employee who files a

complaint, testifies, or otherwise exercises his or her rights under the Health and Safety Act. 820

ILCS 220/2.2. Employees who have been discriminated against must file a complaint with the

Illinois Department of Labor within 30 days after the violation. If the IDOL determines that a

violation occurred, it will file suit in circuit court within 120 days of the receipt of the complaint

to seek appropriate relief, including reinstatement and backpay. 820 ILCS 220/2.2(b).

C. Toxic Substances Disclosure to Employees Act

1. [5.110] Purpose and Scope

The Toxic Substances Disclosure to Employees Act (TSDEA), 820 ILCS 255/1, et seq., was

enacted to ensure that employees are given information concerning the nature of the toxic

substances they work with and are fully informed of their known and suspected health hazards.

820 ILCS 255/2. “Toxic substance” means any substance that is determined to be hazardous by

the Occupational Safety and Health Act under 29 C.F.R. §1910.1200. 820 ILCS 255/3(m). The

TSDEA applies to all employers (including state and local government employers) that have 20

or more employees or 5 or more full-time employees in the state. 820 ILCS 255/3(f).

2. Employer Obligations

a. [5.111] Record-Keeping Requirements

Under the Toxic Substances Disclosure to Employees Act, employers are required to obtain

“material safety data sheets for each toxic substance used, produced or stored in the workplace to

which employees may be exposed.” 820 ILCS 255/9(a). A “material safety data sheet” is a

“document describing the properties and methods of safe handling and use of a substance.” 820

ILCS 255/3(j). Employers must annually provide the Illinois Department of Labor with a list of

all the substances for which it has material safety data sheets. 820 ILCS 255/5. Employers must

maintain copies of the material safety data sheets for at least ten years after the substance is no

longer used, produced, or stored. 820 ILCS 255/9(c).

Employers must supply within ten days upon written request a material safety data sheet to

employees, their doctors or employee representatives, or the IDOL. 820 ILCS 255/9(d). An

employer who does not possess a requested sheet must

(1) request a material safety data sheet in writing from the seller of the toxic

substance within 10 days; (2) if the seller fails to provide the employer with a

material safety data sheet within 30 days, file a complaint within 10 days . . . against

the seller . . . (3) mail a copy of the written request and the filed complaint to the

seller and the filed complaint to the employee . . . within 10 days of filing the

complaint. An employer shall mail the material safety data sheet to the requesting

party within 10 days following receipt by the employer from the seller of the

material safety data sheet. Id.

Additionally, §2 of the Safety Inspection and Education Act, 820 ILCS 220/2, authorizes the

IDOL to issue regulations requiring employers to maintain accurate records of employee

exposure to potentially harmful or toxic materials. Employees and their representatives are

entitled to observe such monitoring and have access to employer records. Employees also are

entitled access to records indicating their own exposure to toxic materials and prompt information

of any exposure in excess of IDOL safety standards. Although these requirements are not part of

the TSDEA per se, they do apply directly to employee disclosure rights.

b. [5.112] Posting and Labeling Requirements

Employers must post an Illinois Department of Labor poster explaining employee rights

under the Toxic Substances Disclosure to Employees Act at the location where notices to

employees are usually posted. 820 ILCS 255/7. Employers must label each container of a toxic

substance with the chemical name and appropriate hazard warnings. Similar labels or placards

must be placed on “fixed containers,” such as pipes or tanks. 820 ILCS 255/8. There are some

exceptions for (1) containers already labeled with the necessary information; (2) containers with

products subject to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §136, et

seq., labeling requirements; and (3) small containers (intended for the employee’s immediate use)

into which toxic substances are transferred by an employee from labeled containers.

c. [5.113] Training Requirements and Fire Safety

Section 16 of the Toxic Substances Disclosure to Employees Act requires employers to

provide all employees with an education and training program regarding all toxic substances to

which the employee is routinely exposed in the course of employment. An employer will be able

to demonstrate prima facie evidence of meeting its training requirements if, before an employee is

assigned to work where he or she will be routinely exposed to a toxic substance and at least

annually thereafter, the employer provides the employee with (1) personal instruction on handling

each substance to which the employee will be exposed; (2) a material safety data sheet for each

substance; and (3) an Illinois Department of Labor summary that includes a description of the

employee’s rights and instructions on how to read a data sheet.

Finally, an employer must work with its local fire department to arrange for fire prevention

and must notify the department of the type and hazards of the toxic substances it possesses and

the layout of its workplace. 820 ILCS 255/15.

3. [5.114] Employee Rights

The Toxic Substances Disclosure to Employees Act gives employees three substantial

protections. First, employers are prohibited from discriminating against employees who exercise

their rights under the TSDEA. Second, employers may not request or require employees, former

employees, or job applicants to waive their rights under the TSDEA. Third, if an employee has

properly requested information about a toxic substance and has not received the information

within the required time frames, the employee may refuse to work with the substance. 820 ILCS

255/14(a) – 255/14(c). Employees may not refuse to work, however, for employers who did not

possess the appropriate material safety data sheet but made a good-faith effort (i.e., followed the

TSDEA) to acquire and produce one within the specified time. 820 ILCS 255/14(a).

4. [5.115] Compliance

Employees, employers, or employee representatives who believe they have been denied their

rights under the Toxic Substances Disclosure to Employees Act must file a complaint with the

Illinois Department of Labor within 180 days. The IDOL cannot, however, initiate on its own a

complaint for an employer’s violation of the TSDEA. Abatron, Inc. v. Department of Labor, 162

Ill.App.3d 697, 515 N.E.2d 1336, 114 Ill.Dec. 65 (2d Dist. 1987). The IDOL has the authority to

investigate complaints and attempt to resolve them through conciliation, conference, or

persuasion. 820 ILCS 255/17. If it cannot resolve the complaint and finds probable cause that a

violation occurred, the IDOL will hold a hearing. After the hearing it will issue its decision. If it

finds a violation, the IDOL will issue a cease-and-desist order and may (a) require the employer

to institute training programs; (b) reinstate discriminated employees; (c) order backpay; and/or (d)

award attorneys’ fees and hearing costs. Violators also will be fined up to $1,000 for each

violation and up to $10,000 for willful or repeated violations. For knowing and willful violations,

punitive damages not to exceed ten times the total monetary amount owed by the liable party or

$20,000, whichever is larger, also are available. Parties objecting to the IDOL’s finding may seek

judicial review. Id.

D. [5.116] Medical Examination of Employees Act

Under the Medical Examination of Employees Act, employers are prohibited from requiring

job applicants or employees to pay the cost of a medical examination or the cost of furnishing any

records of such an examination required by the employer as a condition of employment. 820

ILCS 235/1. “Employer,” however, may not be defined broadly enough to include public

employers since the definition does not specifically include governmental employers or

municipalities. 820 ILCS 235/2. Violators will be found guilty of a petty offense and fined not

more than $100 for each offense. 820 ILCS 235/4.

E. [5.117] Omnibus Transportation Employee Testing Act of 1991

The Omnibus Transportation Employee Testing Act of 1991, Pub.L. No. 102-143, 105 Stat.

952, requires alcohol and drug testing of safety-sensitive transportation employees, i.e., those

employees required to have a commercial driver’s license (CDL). Under the Federal Highway

Administration’s (FHWA’s) 1994 rules implementing the Act, public employers are specifically

within the regulations’ coverage. The only public sector employers not subject to the rules are

those employers who exclusively employ drivers who are not subject to CDL requirements or

whose state of licensure has waived their CDL requirements. 59 Fed.Reg. 7,486 (Feb. 15, 1994).

The State of Illinois, for example, has exempted firefighting personnel from its CDL

requirements.

The rules broadly prohibit any unauthorized use of illegal drugs by safety-sensitive

employees on or off duty. Rules also limit the use of legal, controlled substances while operating

commercial vehicles. The rules require preemployment, postaccident, reasonable suspicion,

random, and return-to-duty/follow-up drug and alcohol testing. The FHWA mandates that a

specific number of these tests be performed by the employer each year. If a safety-sensitive

employee tests positive in either an alcohol or a drug test, the rules require that the employee be

removed from safety-sensitive duty and returned to such duty only after being evaluated by a

substance abuse professional, completing the recommended rehabilitation, and testing negative on

a return-to-duty test.

Finally, the FHWA rules require that employers provide safety-sensitive employees with

information on drug and alcohol use, arrange supervisor training on the signs and symptoms of

drug use, and keep detailed records of their testing programs, which may be inspected by the

FHWA to determine compliance.

IX. [5.118] OTHER EMPLOYEE RIGHTS

Basically, this entire chapter is devoted to employee rights and public employer

responsibilities. An employee’s right to civil service procedures (if applicable),

nondiscrimination, minimum wages and time and a half for overtime, compensation for workrelated

injuries, a safe workplace, notification of an employer’s failure to pay insurance

premiums, etc., are addressed above. For a discussion of the right to organize, see the chapter on

labor law in Volume IV of IICLE’s ILLINOIS MUNICIPAL LAW SERIES (publication

scheduled for fall 2006). Sections 5.119 – 5.146 below address other rights and benefits public

employees have under federal and state law.

A. [5.119] Personnel Record Review Act

The Personnel Record Review Act gives employees the right “to inspect any personnel

documents which are, have been or are intended to be used in determining that employee’s

qualifications for employment, promotion, transfer,” and basically every other personnel decision.

820 ILCS 40/2. Employees also may designate in writing a representative of the employee’s

union or other representative to inspect his or her personnel record for documents relating to a

current grievance with the employer. 820 ILCS 40/5. There are several documents that are

exceptions from disclosure under the Act, including letters of reference for the employee, test

documents (but the employee may see a cumulative test score), certain materials relating to staff

planning, certain personal information about other employees, etc. The Act’s original exceptions

conflicted so greatly with its disclosure requirements that the Illinois Supreme Court found the

Act unconstitutional because no “employer of ordinary intelligence” could “determine with

reasonable certainty which personnel documents are, or are not, subject to disclosure.” Spinelli v.

Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill.2d 389, 515 N.E.2d 1222, 1228, 113

Ill.Dec. 915 (1987). Since Spinelli, the legislature specifically amended §10 of the Act (P.A. 85-

1393 (eff. Sept. 2, 1988)) to correct its constitutional deficiencies. The amended Act’s

constitutionality has yet to be challenged.

Unless otherwise provided for in a collective bargaining agreement, employers must grant at

least two inspection requests by an employee in a calendar year. 820 ILCS 40/2. Generally, the

employer must comply with the request within seven working days, with the inspection taking

place at a location reasonably near the employee’s place of employment and during normal

working hours unless another place and time are more convenient for the employee. Id.

Employees may not remove any records, but they have the right to obtain copies at their own

cost. 820 ILCS 40/3.

If an employee disagrees with any information contained in the personnel record, the parties

may mutually agree to remove or amend the offending document. If no agreement is reached, the

employee has the right to submit a written statement explaining his or her position, which the

employer must attach to the disputed document. 820 ILCS 40/6. If the employer intentionally

withholds documents that should have been disclosed, the employer will be prohibited from using

them in any judicial or quasi-judicial proceeding. Unintentionally excluded documents still may

be used if the employee consents or has been given a reasonable amount of time to review the

information. 820 ILCS 40/4.

The Personnel Record Review Act also regulates which records can be kept, for how long,

and to whom they can be disclosed. For example, with limited exceptions employers may not

keep records of an employee’s nonemployment activities or associations unless the employee

submits the information in writing or authorizes the employer to keep such information. 820

ILCS 40/9. Nor may employers keep records identifying an employee as the subject of a child

abuse/neglect investigation if it resulted in a finding of no abuse. 820 ILCS 40/13. Moreover,

employers may not disclose disciplinary reports or other such documents to a third party without

written notice unless (1) the employee specifically waived (in writing) such notice as part of an

employment application with another employer; (2) the disclosure is ordered to a party in

litigation or arbitration; or (3) the information is requested by the government as a result of a

claim or complaint by an employee or as a result of a criminal investigation. 820 ILCS 40/7. One

federal court has found that this notification requirement applies even to an employer’s verbal

communication of an employee’s disciplinary record. See Bogosian v. Board of Education of

Community Unit School District 200, 134 F.Supp.2d 952 (N.D.Ill. 2001). In addition, before

disclosing an employee’s record to a third party, the employer usually must delete from it all

evidence of disciplinary action more than four years old. 820 ILCS 40/8.

Employees alleging violations under the Act must first file a complaint with the Illinois

Department of Labor, which will investigate the charge and try to resolve it through conciliation.

820 ILCS 40/12. If that fails, the IDOL may file suit, and if it does not file suit, the individual

employee may. Courts finding in favor of the employee may award actual damages, costs, and in

addition, if the violation was willful, attorneys’ fees and $200. Violators also may be found guilty

of a petty offense. Id. Finally, under §12 of the Act, employers are prohibited from discriminating

against employees who exercise their rights.

B. [5.120] Employment Record Disclosure Act

The Employment Record Disclosure Act (ERDA), 745 ILCS 46/1, et seq., protects employers

who provide truthful, performance-related references or information to prospective employers, or

who provide information that they believe in good faith is truthful, from civil lawsuits related to

the references or information provided. The ERDA presumes that an employer who provides such

information about the job performance of a current or former employee has acted in good faith

and is consequently immune from civil liability. 745 ILCS 46/10. This good-faith presumption

may be rebutted by preponderance of evidence that the information disclosed was knowingly

false or in violation of a civil right of the employee or former employee. The text of the ERDA

refers only to references given “upon inquiry by a prospective employer” (id.), leaving uncertain

the ERDA liability of an employer who volunteers the employee’s information. Finally, the

ERDA does not affect employer obligations and employee rights available under the Personnel

Record Review Act. See §5.119 above. The ERDA does not define the term “employer,” nor does

it explicitly exempt public employers.

The ERDA should provide protection to employers who feel obligated to respond to inquiries

by prospective employers. Before the ERDA, employers who provided negative references could

be sued for defamation or tortious interference with prospective economic advantage. See, e.g.,

Anderson v. Vanden Dorpel, 172 Ill.2d 399, 667 N.E.2d 1296, 217 Ill.Dec. 720 (1996) (employee

failed to state claim for defamation based on alleged negative comments made by supervisor to

prospective employer; employee also failed to state claim for tortious interference when negative

comments were received before employee had received offer — thus, employee had no

reasonable expectancy of entering into contract of employment with prospective employer).

Note, however, that the ERDA does not appear to protect an employer who provides

favorable references the employer knows are false or misleading. Randi W. v. Muroc Joint

Unified School District, 14 Cal.4th 1066, 929 P.2d 582, 591, 60 Cal.Rptr.2d 263 (1997) (finding

plaintiff could raise claim of negligent misrepresentation and fraud based on misleading

statements in reference letters). The court also noted, however, that a party that declined to

provide any reference at all would, absent some special relationship or a statutory duty, be under

no obligation to disclose negative information. 929 P.2d at 589. CAUTION: This area of the law

is in flux. An employer who is concerned about withholding or releasing information about a

former employee to a prospective employer should consult with its attorney.

C. [5.121] Health Insurance Claim Filing Act

The Health Insurance Claim Filing Act, 820 ILCS 45/0.01, et seq., prohibits an employer

from discharging an employee in retaliation for the filing of legitimate health insurance claims or

the actual use or receipt of medical or healthcare services by the employee under the employer’s

health or medical insurance plan or arrangement, “whether insurance or not.” 820 ILCS 45/2.

This short nondiscrimination act has no express enforcement provisions.

D. [5.122] Right to Privacy in the Workplace Act

The Right to Privacy in the Workplace Act (Privacy Act), prohibits employers (with an

exception for certain nonprofit advocacy organizations) from refusing to hire, discharging, or

otherwise discriminating against any individual because that person “uses lawful products off the

premises of the employer during nonworking hours” (i.e., cigarettes or alcohol). 820 ILCS 55/5.

The Privacy Act does not apply, however, to persons whose ability to perform their duties has

become impaired by the use of such products or to nonprofit corporations dedicated to

discouraging the use of such products. Also, employers may make distinctions between

employees for the type of health, disability, or life insurance coverage or the price of such

coverage based on the use of lawful products as long as they notify their employees of the

differential rates charged by the insurance carriers and charge only the differential cost to the

employer.

Tacked onto the Privacy Act is a prohibition against asking any prospective employee or his

or her former employers whether the employee ever filed a claim for benefits under the Workers’

Compensation Act or the Workers’ Occupational Diseases Act or has received benefits under

these acts. 820 ILCS 55/10. This prohibition applies to both written (such as in an employment

application) and oral inquiries.

Employees alleging violations under the Privacy Act must first file a complaint with the

Illinois Department of Labor, which will investigate the charge and attempt to resolve it through

conciliation. If that fails, the IDOL may file suit. 820 ILCS 55/15. If conciliation has failed and

the IDOL has not filed suit, the employee may sue on his or her own behalf. Successful

employees are entitled to damages, costs, and, if the violation was willful, attorneys’ fees and

$200. Employers and their agents who violate the Privacy Act may be found guilty of a petty

offense. Finally, employers are prohibited from discriminating against employees who exercise

their rights under the Privacy Act.

E. [5.123] Genetic Information Privacy Act

The Genetic Information Privacy Act, 410 ILCS 513/1, et seq., provides that information for

such testing is confidential, requires that employers treat genetic testing information in a manner

consistent with federal law, and limits the disclosure of such information by insurers or

employers.

F. [5.124] Employer Eavesdropping

Under Title III, Part B of the Illinois Criminal Code, a public employer may record or use

electronic devices to listen in on emergency communications made in the normal course of

operations of its emergency services departments (e.g., police, paramedic, fire, public utility,

hospital, etc.). 720 ILCS 5/14-3. Electronic “eavesdropping” on other employee telephone

conversations, however, is tightly restricted. Persons are prohibited, without the consent of all the

parties thereto, from intercepting, retaining or transcribing “electronic communication[s].” 720

ILCS 5/14-1, 5/14-2. The exemption from the general prohibition against eavesdropping is

limited to employers engaged in either marketing or opinion research or telephone solicitation.

720 ILCS 5/14-3(j). “Marketing or opinion research” is defined as research conducted by an

employee interviewer for an employer “whose principal business is the design, conduct, and

analysis of polls and surveys measuring the opinions, attitudes, and responses of respondents

toward products and services, or social or political issues, or both.” “Telephone solicitation” is

defined as using the telephone to (1) solicit the sale of goods or services; (2) receive orders for the

sale of goods or services; (3) assist in the use of goods or services; or (4) engage in the

solicitation, administration, or collection of bank or retail credit accounts.

Even if the employer meets either of these definitions, the telephone monitoring can be only

to monitor the “service quality control of marketing or opinion research or telephone solicitation,

the education or training of employees or contractors engaged in marketing or opinion research or

telephone solicitation, or internal research related to marketing or opinion research or telephone

solicitation.” 720 ILCS 5/14-3(j)(2)(i). In addition, the employer must obtain the consent of at

least one active party to the conversation. If an employer engaged in telephone monitoring

realizes that a particular call does not relate to market or opinion research or telephone

solicitation, the employer must immediately stop listening to or recording the call. Employers

who choose to monitor employees’ calls must provide “prominent . . . notification” (720 ILCS

5/14-3(j)(2)(ii)) that the monitoring will occur. Finally, employers who monitor employees’ calls

must provide the employees access to “personal-only telephone lines” (id.) that are not

monitored.

Under federal law, electronic and telephone surveillance are governed by the Wiretap Act and

the Stored Communications Act (both derivatives of the original federal wiretapping statute —

the Federal Omnibus Crime Control and Safe Streets Act of 1968). Both Acts were enacted as

part of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §2510, et seq., (together,

the “ECPA”). The Wiretap Act protects against the unauthorized “interception” of “electronic

communications,” 18 U.S.C. §2511, while the Stored Communications Act protects against the

unauthorized “access” to an “electronic communication while it is in electronic storage.” 18

U.S.C. §2701. The ECPA creates a private right of action for actual and punitive damages, plus

costs and attorneys’ fees. Statutory damages are also available and are calculated either at a daily

rate of $100 or a flat rate of $10,000, whichever is greater. Statutory damages are awarded on a

daily basis, even when multiple violations or even multiple types of violations occur on the same

day. See Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711 (1st Cir. 1999); Dorris v. Absher, 179

F.3d 420 (6th Cir. 1999). But see Biton v. Menda, 812 F.Supp. 283 (D.P.R. 1993) (holding that

because illegal recording and disclosure of plaintiff’s telephone conversations were two separate

violations of the ECPA, plaintiff was entitled to $20,000 in statutory damages).

The Wiretap Act prohibits the intentional interception, use, and disclosure of any “oral, wire,

or electronic communication.” The Wiretap Act generally applies to “content” monitoring rather

than “transactional” monitoring, e.g., monitoring the number of phone calls. However, content

monitoring is allowed if the employer fits within one of the following three exceptions: (1) the

service-provider exception; (2) the business use exception; and (3) the consent exception, under

which monitoring is permitted if one party to the communication consents.

The Stored Communications Act protects stored electronic information such as computer files

and stored e-mail messages from unauthorized access, interception, and disclosure. The Stored

Communications Act contains a broad exception that allows access to stored electronic

communications if authorized by the person or entity providing the wire or electronic

communications service. This exception should allow employers access to e-mail messages stored

on the systems they provide. Another exception allows an employer to access stored data on a

system to protect the employer’s business interest in the system. Also, employers with

exclusively “internal” e-mail systems may fall outside the coverage of the Stored

Communications Act, as such a service is not being provided “to the public.” See, e.g., United

States v. Steiger, 318 F.3d 1039 (11th Cir. 2003) (finding that Stored Communications Act does

not apply to hacking into personal computer and retrieving data because computer did not

maintain any “electronic communication service”); In re Pharmatrak, Inc. Privacy Litigation, 220

F.Supp.2d 4 (D.Mass. 2002) (personal computer is not a “facility through which electronic

communication service is provided” for purposes of Stored Communications Act).

G. [5.125] Employer Videotaping

Under the Criminal Code, it is a Class 4 felony in Illinois to knowingly videotape,

photograph, or film another individual (without that individual’s consent) in a restroom, tanning

bed, tanning salon, locker room, changing room, or hotel bedroom. 720 ILCS 5/26-4. Employers

thus cannot set up video recording devices in such areas without the employees’ prior consent.

Employers may be further restricted from videotaping work areas pursuant to a collective

bargaining agreement. See Colgate-Palmolive Co., 323 N.L.R.B. No. 515 (1997) (use of

surveillance cameras is mandatory subject of bargaining); Anheuser-Busch, Inc., 342 N.L.R.B.

No. 49 (2004). See also National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir. 2003) (holding use

of video cameras is mandatory subject of bargaining).

Employers who videotape their employees without notice may also find themselves subject to

invasion of privacy claims, depending on the location of the camera. L.R. Willson & Sons v.

OSHRC, 134 F.3d 1235 (4th Cir. 1998) (surveillance and videotaping of construction site to

detect OSHA safety violations did not violate Fourth Amendment, specifically because

construction site was open to observation from areas outside its control); Acuff v. IBP, Inc., 77

F.Supp.2d 914 (C.D.Ill. 1999) (rejecting summary judgment for employer because wide-angle

lens placed in ceiling of nurse manager’s office was not least intrusive means to determine cause

of thefts); Benitez v. KFC National Management Co., 305 Ill.App.3d 1027, 714 N.E.2d 1002, 239

Ill.Dec. 705 (2d Dist.), appeal denied, 186 Ill.2d 565 (1999) (plaintiffs’ stated cause of action for

“unreasonable intrusion into the seclusion of another” was female employees were viewed and

photographed from holes in women’s restroom ceiling).

H. [5.126] Illinois Clean Indoor Air Act

The Illinois Clean Indoor Air Act, 410 ILCS 80/1, et seq., prohibits persons from smoking in

public places except in designated smoking areas. “Public places” includes places of work with

only a few limited exceptions, such as “factories, warehouses and similar places of work not

usually frequented by the general public.” 410 ILCS 80/4. Unless otherwise prohibited by law or

ordinance, municipalities in control of public places may establish designated smoking areas

using “existing physical barriers, ventilation systems, and other physical elements of the premises

to minimize the intrusion of smoke into areas where smoking is not permitted.” 410 ILCS 80/5.

The Department of Public Health, a local health board, or any individual affected by violations of

the Act may sue to enjoin violations. 410 ILCS 80/8. Employers are prohibited from

discriminating against individuals who exercise their rights under the Act. 410 ILCS 80/9. Under

a recent amendment, the legislature finds that smoking and secondhand smoke are dangerous and

cause numerous deaths. 410 ILCS 80/2.

I. [5.127] Illinois Wage Assignment Act

Under the Illinois Wage Assignment Act, 740 ILCS 170/.01, et seq., no employer may

discharge or suspend any employee by reason of the fact that his or her earnings have been

subjected to wage demands for indebtedness. Violators will be found guilty of a Class A

misdemeanor. 740 ILCS 170/10.

J. [5.128] Whistleblower Reward and Protection Act; Federal False Claims Act

Under §4(g) of the Whistleblower Reward and Protection Act (WRPA), 740 ILCS 175/1, et

seq., employers are prohibited from discriminating against employees for reporting, assisting in,

testifying against, and/or bringing a civil action against a person who defrauds the state. In the

rare case in which a municipality does discriminate against an employee for exercising his or her

rights under the WRPA, the employee is entitled to compensatory relief, two times the amount of

any backpay lost plus interest, and attorneys’ fees.

The WRPA has been given a broad interpretation by the courts. Recently a court held that the

WRPA covers false claims against state grantees except where it affirmatively appears that none

of the money or property claimed originated with the state or that the state’s aid to the grantee is

de minimis in terms of either dollars or subsequent supervision or control. People ex rel.

Levenstein v. Salafsky, 338 Ill.App.3d 936, 789 N.E.2d 844, 273 Ill.Dec. 670 (2d Dist. 2003).

Thus the WRPA may apply to all state local governmental entities provided part of the funds

involved in the false claim were received from the state.

The False Claims Act (FCA), 31 U.S.C. §3729, et seq., authorizes suit against any “person”

who submits a false or fraudulent claim for payment by the federal government. 31 U.S.C. §3730.

While the U.S. Attorney General can bring suit under the FCA, the FCA permits private persons

(“relators”), in a qui tam action, to bring suit on behalf of the government and collect as a reward

a portion of the recovery. The recovery can include civil penalties of $5,500 to $11,000 for each

violation, treble damages for the funds fraudulently obtained, plus attorneys’ fees and costs.

Though states are not “persons” subject to qui tam suits under the FCA, the Supreme Court

recently held that municipalities are not similarly immune from liability and are “persons” who

may be sued for false claims under the Act. Cook County v. United States ex rel. Chandler, 538

U.S. 119, 155 L.Ed.2d 247, 123 S.Ct. 1239 (2003). In so doing, local governmental entities are

not only subject to suit but also are subject to treble damages should they be found to be in

violation of the Act.

Like the WRPA, the False Claims Act also contains whistleblower protection provisions that

prevent employers from discriminating against employees who report violations. In a case of first

impression, the court recently held that a public housing authority was a “person” subject to the

whistleblower provisions of the statute. Wilkins v. St. Louis Housing Authority, 314 F.3d 927 (8th

Cir. 2002).

K. Political Rights

1. [5.129] Local Governmental Employees Political Rights Act

The Local Governmental Employees Political Rights Act, 50 ILCS 135/1, et seq., provides

that no unit of local government may make or enforce any rule or ordinance that in any way

inhibits or prohibits any of its employees from exercising their political rights. 50 ILCS 135/10.

“Political rights” include the right to petition, make speeches, campaign, speak out on questions

of public policy, distribute literature, contribute, and run for office. 50 ILCS 135/5. There are two

key exceptions: local government employees may not (a) use their official positions to coerce or

inhibit others in the exercise of their rights or (b) engage in political activities while at work or on

duty. 50 ILCS 135/10.

Public Act 94-0316, which became effective July 25, 2005, allows a member of any fire

department or fire protection district to be a candidate for elective public office or be appointed to

a public office, and to serve in that office. See 50 ILCS 135/12. The law further allows a member,

as long as he or she is not in uniform and not on duty, to solicit votes or campaign funds or

challenge voters for the public office for which the member is a candidate.

Note, however, that the federal government places certain restrictions on the participation of

public employees in partisan elections. Specifically, the Hatch Act, 5 U.S.C. §7321, et seq.,

prohibits certain executive branch state and local employees who are principally employed in

connection with federally funded programs from campaigning for or holding partisan political

office. The Hatch Act is enforced by the U.S. Office of Special Counsel, which is authorized to

prosecute offending public employers before the U.S. Merit Systems Protection Board. If a public

employee is found to have impermissibly run for or held partisan office, the public employer may

be required to either dismiss the employee or forfeit a portion of its federal grant money

equivalent to two years’ worth of the employee’s salary. More information on Hatch Act

requirements for state and local government employers may be found at the Special Counsel’s

Web page at www.osc.gov.

2. [5.130] Civil Service Protections

Division 1 of Article 10 of the Illinois Municipal Code mirrors much of the Local

Governmental Employees Political Rights Act in that it prohibits municipalities subject to

Division 1 from inhibiting in any way any employee from exercising his or her political rights

provided the employee does not engage in politics on work time or use his or her position to

coerce others. Code §10-1-27.1. Division 1, however, is broader. It prohibits persons from

soliciting political contributions for any political party or purpose from any municipal officer or

employee. Code §10-1-28. Additionally, no political contributions may be taken in or solicited

from municipal buildings, and municipal employees or officers may not give money or valuables

to other employees or elected officials for the promotion of any political party or cause. Code

§§10-1-29, 10-1-30.

Perhaps most important, however, are the prohibitions on the use of political connections in

seeking appointments or promotions. Section 10-1-31 of the Code prohibits employees and

officers from discriminating against or threatening employees for contributing or not contributing

to or participating in any political cause or party. Additionally, job applicants are prohibited from

paying — and public employers are prohibited from accepting — money for appointments or

promotions. Code §10-1-32. Applicants also may not ask for or receive recommendations or

assistance from anyone based on the consideration of any political service rendered to or for such

person. Code §10-1-33. Finally, officeholders and candidates may not corruptly use or promise to

use their influence to provide employment, promotions, or added benefits to anyone in return for

his or her vote or support. Code §10-1-34.

L. [5.131] Voting Leave

The Election Code, 10 ILCS 5/1-1, et seq., provides that any person entitled to vote at a

general or special election or at any election at which propositions are submitted to a popular vote

shall, on the day of such election, be entitled to absent himself from work for a period of two

hours between the time of opening and closing the polls without loss of pay provided the

employee applied for the leave of absence prior to the day of election. 10 ILCS 5/17-15. In other

words, an employee whose work schedule is such that the employee does not have a block of two

free hours to vote can take time off work without loss of pay. The employer may, however,

specify the hours during which an employee may leave to vote. An employer cannot deny an

employee this right or subject an employee to a penalty, including a reduction in compensation

due to an absence under this provision of the Code.

M. [5.132] Employee Blood Donation Leave

The Employee Blood Donation Leave Act, 820 ILCS 149/1, et seq., effective January 1,

2006, is intended to provide time off with pay to allow employees of units of local governments,

boards of election commissioners, or private employers in the State of Illinois to donate blood.

Employees are entitled to up to 30 days for organ donation leave in any 12-month period to serve

as a bone marrow donor, up to one hour to donate blood every 56 days, and up to two hours to

donate blood platelets. New rules are currently pending and can be found in the Illinois Register.

See 77 Ill.Admin. Code pt. 985; 30 Ill.Reg. 778 (Jan. 20, 2006). However, under the rules,

covered employers are granted discretion to give employees leave to donate blood. There is

ambiguity between the law and the rules, which should be reconciled in the future.

N. [5.133] Jury/Witness Duty

The Jury Act, 705 ILCS 305/0.01, et seq., provides that all employers, public and private,

must give their employees time off to serve jury duty — regardless of what shift the employees

work. 705 ILCS 305/4.1. Employees, however, must give their employer reasonable notice of

required jury service. “Reasonable notice” means the employee must deliver to the employer a

copy of the jury summons within ten days of the date it was issued. Employers who violate this

provision or who discriminate against employees because they must serve jury duty will be

charged with contempt of court, will be liable for any losses suffered by the employee, and will

be liable for attorneys’ fees. Employers are not obligated, however, to compensate employees for

time taken off on jury duty.

Additionally, the Code of Criminal Procedure of 1963, 725 ILCS 5/100-1, et seq., prohibits

employers from punishing, penalizing, or otherwise discriminating against an employee who has

been subpoenaed to testify as a witness before a criminal proceeding. Violators will be held in

contempt of court. 725 ILCS 5/115-18. Employers need not compensate employees for the time

they miss work. Id.

O. [5.134] Nursing Mothers in the Workplace Act

The Nursing Mothers in the Workplace Act, 820 ILCS 260/1, et seq., requires employers to

provide reasonable unpaid break time each day to an employee who needs to express milk for her

infant child. The break time must, if possible, run concurrently with any break time already

provided to the employee. Section 15 of the Act also requires employers to make reasonable

efforts to provide a room or other location, in close proximity to the employee’s work area, other

than a bathroom stall, where the employee can express milk in privacy. The employer is not

required to provide break time if to do so would unduly disrupt operations.

All employers, including public employers, with six or more employees, excluding family

members, are covered under the Act. The definition of “employee” includes former employees

who have separated within the previous year as well as employees on a leave of absence. Private

rights of action, penalties, administration or enforcement are not discussed in the Act.

P. [5.135] School Visitation Rights Act

Under the School Visitation Rights Act, 820 ILCS 147/1, et seq., an employer must grant an

employee leave of up to a total of eight hours during any school year, no more than four hours of

which may be taken on any given day, to attend school conferences or classroom activities that

cannot be scheduled during nonworking hours. 820 ILCS 147/15. No leave may be taken under

the School Visitation Rights Act, however, until the employee has exhausted all vacation,

personal, and compensatory leave and any other leave except sick or disability leave. Also,

employers are not required to grant the leave if it would result in more than five percent of the

employer’s workforce or shift taking leave at the same time. 820 ILCS 147/49.

Employees qualify under the Act if they have worked at least six consecutive months

immediately preceding the leave request and average at least one half of the full-time hours per

week for their position. 820 ILCS 147/10. Employees must provide their employer with a written

request for leave at least seven days in advance of the “visitation.” In an emergency situation, no

more than 24 hours’ notice may be required. 820 ILCS 147/15. The employee also must consult

with the employer to schedule the leave so as not to unduly disrupt the employer’s operations. In

no event is the employee entitled to be paid for the leave, but the employee has the option to

make up the time at the regular rate of pay. 820 ILCS 147/20.

Upon completion of the school visit, the employee will receive a verification form from the

school that must be returned to the employer. 820 ILCS 147/30. If the employee fails to submit it

within two working days after the visit, the employer may discipline the employee for the absence

as it would for any unexcused absence. Employers who violate the Act will be found guilty of a

petty offense and may be fined not more than $100 for each offense. 820 ILCS 147/45.

Q. [5.136] Family and Medical Leave Act of 1993

The Family and Medical Leave Act of 1993 generally covers all public employers and private

employers with 50 or more employees. Fain v. Wayne County Auditor’s Office, 388 F.3d 257 (7th

Cir. 2004). If subject to the FMLA, employers must provide eligible employees up to 12 weeks of

leave per 12-month period for the birth of a child, the placement of a child for adoption or foster

care, or the serious health condition of the employee or an immediate family member, i.e., a child,

spouse, or parent (not parent-in-law). “Serious health condition” means an illness, injury,

impairment, or physical or mental condition that involves inpatient care or continuing treatment

by a health care provider.

To be eligible for FMLA leave, a public employee must work for a public entity that employs

at last 50 employees within a 75-mile radius of the employee’s worksite. Id. See 29 C.F.R.

§825.108(d) (therefore, while all public entities may technically be covered by the FMLA’s

provisions — see discussion above — employees of certain smaller public entities with fewer

than 50 employees in a 75-mile radius may not be “eligible” for leave). In addition, an employee

must have worked for the employer at least 12 months and must have worked at least 1,250 hours

(approximately 24 hours per week) over the previous 12 months. The employer, however, may

exempt certain highly paid, salaried employees under limited circumstances. Whenever possible,

the employee must give 30 days’ notice to the employer before taking leave; otherwise, the

employee must notify the employer as early as practicable. If the leave is based on a serious

health condition, the employer may require certification from the employee’s or family member’s

doctor. The employer also may require a second opinion at the employer’s expense, but the

doctor submitting the second opinion may not be regularly employed by the employer. If the

doctors’ opinions conflict, a third opinion, obtained at the employer’s expense, will be final.

Additionally, if the leave is to care for a family member, the employee must make a reasonable

effort to schedule treatment so as not to disrupt the employer’s operations.

This leave may be unpaid, but the employer must continue to provide coverage under its

group health plan during the leave period under the same terms offered to employees not on

leave. Employees are entitled to no other benefits, however, and do not accrue seniority while on

leave. The employee may take intermittent leave or a reduced work schedule with the employer’s

consent or when “medically necessary.” The employee also may elect or be required to substitute

certain accrued paid leave for any portion of the leave provided for under the FMLA. However,

an employer will not be required to provide paid medical or sick leave in any case in which such

leave normally would not be provided.

At the end of the leave period, the employee must be restored to his or her former position

with equivalent pay, benefits, and other terms and conditions of employment. Employers must

keep records of all employee leave. Additionally, they are prohibited from discriminating against

employees exercising their rights under the FMLA.

The FMLA is enforced by the Department of Labor, which will process charges of violations

in the same manner as under the FLSA. Individual employees also may bring suit for violations

and recover monetary losses plus interest, reinstatement, or other equitable relief as well as

attorneys’ and expert witnesses’ fees. Double actual losses will be awarded unless the employer

can prove it acted in good faith with reasonable grounds to believe it was in compliance and the

court decides to limit the remedy to actual losses.

Employers may enforce leave policies, such as requiring an employee on leave to call in,

without violating the FMLA. Callison v. City of Philadelphia, 430 F.3d 117 (3rd Cir. 2005). In

Callison, the court concluded that the FMLA does not prohibit employers from enforcing policies

aimed at protecting themselves against employees who abuse sick time. The employer’s sick

leave policy required employees on leave for their own illness to call in to the employer if the

employee left his house during regular business hours. The employees were permitted to attend to

personal needs related to their illness provided they contacted the employer’s “Sick Control

Hotline” before leaving home and on returning home. The policy also put employees on notice

that they could be contacted via telephone or home visits by a sick leave investigator to ensure

that the employees were actually at home during their time off.

R. [5.137] Victims’ Economic Security and Safety Act

The Victims’ Economic Security and Safety Act (VESSA), 820 ILCS 180/1, et seq., went

into effect on August 25, 2003. It covers all full and part-time employees and individuals “in a

work assignment as a condition of receipt of federal or State income-based public assistance”

(820 ILCS 180/10(9)) who are employed by private employers with 50 or more employees or any

public employer regardless of size (820 ILCS 180/10(10)). Notably, unlike the Family and

Medical Leave Act, on which it is loosely based, there are no hours-worked or months-of-service

requirements. VESSA provides an eligible employee with four basic rights: to take job-protected

leave for covered reasons, to have health insurance maintained on the same terms and conditions

as if the employee were actively working, to be provided with reasonable accommodations, and

to be reinstated to the same or equivalent position.

In terms of leave, employees who are victims of domestic or sexual violence or have family

or household members (“persons jointly residing in the same household”) who are victims of

domestic or sexual violence are entitled to a total of 12 workweeks of leave during any 12-month

period for any of the following reasons:

1. to seek medical attention for, or to recover from, physical or psychological injuries

caused by domestic or sexual violence;

2. to obtain services from a victim services organization;

3. to obtain psychological or other counseling;

4. to participate in safety planning, to temporarily or permanently relocate, or to take other

actions to increase the safety of the employee (or family/household member) from future

domestic or sexual violence or to ensure economic security;

5. to seek legal assistance or remedies to ensure the health and safety of the employee (or

family/household member), including preparing for or participating in any civil or

criminal legal proceeding related to or derived from domestic or sexual violence. 820

ILCS 180/20(a).

Paid leave, including family, medical, sick, annual, personal, or similar leave, may be

substituted at the employee’s option for the unpaid leave provided under VESSA. VESSA leave

can be taken intermittently or on a reduced work schedule. The Act does not create a right for an

employee to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition

to the unpaid leave permitted by, the FMLA. 820 ILCS 180/20(a)(2).

The taking of VESSA leave shall not result in the loss of any employment benefit accrued

prior to the date the leave commenced. While on VESSA leave, the employer is obligated to

maintain the employee’s group health plan coverage (including dependent coverage, if

applicable) at the level and under the conditions coverage would have been provided had the

employee not been on leave. Like the FMLA, if the employee fails to return from leave for

reasons other than ongoing domestic or sexual violence issues or for other reasons outside of the

employee’s control, the employer may recover the premiums it paid. 820 ILCS 180/20. The

employer has the right to require the employee to report periodically on his or her status and the

intention of the employee to return to work. Id.

Upon return from leave under VESSA, the employee is entitled to be restored to his or her

position or an equivalent position with equivalent employment benefits, pay, and other terms and

conditions of employment. 820 ILCS 180/20(e).

Employees are to give at least 48 hours of advance notice of the intention to take leave unless

such notice is not practicable. 820 ILCS 180/20(b). When an unscheduled absence occurs, the

employer may not take any action against the employee if the employee, within a reasonable

period of time after the absence, provides certification of the need for leave. Id.

An employer may require certification from the employee that the employee or a member of

the employee’s family or household is a victim of domestic or sexual violence and that the leave

is for a qualifying reason. Certification would consist of a sworn statement of the employee and

one of the following:

(A) documentation from an employee, agent or volunteer of a victim services

organization, an attorney, a member of the clergy, or other professional [e.g.,

medical] from whom the employee or the employee’s family or household member

has sought assistance in addressing domestic or sexual violence and the effects of

violence;

(B) police or court record; or

The Act contains strict confidentiality requirements that prohibit the information the employer

obtains from being disclosed except when consented to by the employee or when otherwise

required by federal or state law. 820 ILCS 180/20(d).

Employers are prohibited from interfering with or retaliating against an employee who has

exercised rights under VESSA or from discriminating against an individual because

1. the individual is or is perceived to be a victim of domestic or sexual violence;

2. the individual has attended, participated in, prepared for, or requested leave to attend,

participate in, or prepare for a criminal or civil court proceeding relating to an incident of

domestic or sexual violence of which the individual or a family or household member

was a victim;

3. the individual has requested an adjustment to a job structure, workplace facility, or work

requirement, including a transfer, reassignment, or modified schedule, leave, a changed

telephone number or seating assignment, installation of a lock, or implementation of a

safety procedure in response to actual or threatened domestic or sexual violence; or

4. the workplace is disrupted or threatened by the action of a person whom the individual

states has committed or threatened to commit domestic or sexual violence against the

individual or the individual’s family or household member. 820 ILCS 180/20(f), 180/30.

Discrimination, as defined, includes not making a reasonable accommodation to the known

limitations resulting from the circumstances related to being a victim of domestic or sexual

violence or a family or household member being a victim of domestic or sexual violence of an

otherwise qualified individual unless the employer can demonstrate that the accommodation

would impose an undue hardship on the operation of the employer. 820 ILCS 180/30(b).

“Qualified individual” is defined as a person who, but for being the victim or the family or

household member of a victim of domestic or sexual violence, can perform the essential functions

of the employment position. Id. Reasonable accommodation may include an adjustment to a job

structure, workplace facility, or work requirement, including a transfer, reassignment, or modified

schedule, leave, a changed telephone number or seating assignment, installation of a lock, or

implementation of a safety procedure, in response to actual or threatened domestic or sexual

violence. Id.

VESSA is enforced by the Illinois Department of Labor and provides for administrative

hearings on alleged violations of the law. Administrative complaints may be filed up to three

years after the violation. 820 ILCS 180/35. Damages include lost wages and benefits, equitable

relief, including hiring, reinstatement, promotion, and reasonable accommodation, attorneys’

fees, expert fees, and costs. Id.

Employers are required to post a notice from the IDOL concerning the protections of the law.

820 ILCS 180/40. IDOL regulations further require that employers maintain numerous records

related to VESSA leave and accommodation requests, and that those records be maintained for at

least three years. 56 Ill.Admin. Code §280.140.

S. Military Leave and Reemployment Rights

1. [5.138] Municipal Employees Military Active Duty Act

The Municipal Employees Military Active Duty Act, 50 ILCS 120/0.01, et seq., passed

during World War II, authorizes municipal corporations who wish to do so to pass ordinances or

resolutions preserving the civil service and/or pension rights of employees who enlist or are

inducted into the armed forces. 50 ILCS 120/1. Employees entering the military may be

considered as being on leave of absence during their service and for 40 days after their release.

After returning, they may be restored to their former positions without loss in seniority or to such

other positions as their civil service status would have entitled them had they not entered the

military. 50 ILCS 120/2. The Act has generally been superseded by later, more generous federal

and state laws.

2. [5.139] Family Military Leave Act

Public Act 94-0589 enacted the Family Military Leave Act, 820 ILCS 151/1, et seq., effective

August 15, 2005. The law applies to employees and independent contractors who have worked at

least 12 months for the employer and have worked at least 1,250 hours in the 12 months

preceding the commencement of the leave. 820 ILCS 151/5. Employers are required to provide

unpaid family military leave to the spouse or parent of a person deployed for military service

while the deployment orders are in effect. The employer must provide up to 15 days if it employs

between 15 and 50 persons and up to 30 days if it employs more than 50 persons. 820 ILCS

151/10.

An employee or independent contractor must give at least fourteen days notice prior to the

date the leave will commence if the leave will consist of five or more consecutive work days, or

as much notice as is practicable if the leave is for less than five consecutive days. Id. When

possible, the employee or independent contractor should consult with the employer to minimize

disruption to the employer’s operations. The employer may require certification from the proper

military authority to verify the employee or independent contractor’s eligibility for the leave. An

employee is not to take leave unless he or she has exhausted all accrued vacation, personal,

compensatory, and other leaves (except sick and/or disability leave). The employee or

independent contractor is entitled to be restored to the same or an equivalent position following

the leave, unless such restoration is inappropriate for reasons unrelated to the leave. 820 ILCS

151/15. Employers must allow for employees (and independent contractors, if appropriate) to

maintain benefits at the employee’s expense for the duration of the leave and may negotiate

maintenance of benefits at the employer’s expense. State courts have jurisdiction to enjoin

unlawful practices and/or retaliatory actions that violate the Act and may order “equitable relief

that is necessary and appropriate to redress [such] violations or to enforce the Act.” 820 ILCS

151/30.

3. [5.140] Service Member’s Employment Tenure Act

The employment-related provisions of the Service Member’s Employment Tenure Act, 330

ILCS 60/1, et seq., parallel the federal Uniformed Services Employment and Reemployment

Rights Act of 1994 (see §5.143 below) in many, but not all, respects. There are some state law

provisions that provide employees with greater benefits than USERRA, and these apply to public

employees. The differences include (a) no cap on how long an employee may serve in the

military and still be entitled to reinstatement; (b) returning employees have 90 days to apply for

reinstatement regardless of the length of service; and (c) returning employees cannot be

discharged without cause for one year regardless of their length of service.

4. [5.141] Military Leave of Absence Act

The Military Leave of Absence Act, 5 ILCS 325/0.01, et seq., which once addressed only

military reserve leave benefits for state employees, was amended to also apply to units of local

government and school districts. Employers must grant leave to any full-time employee of the

State of Illinois, a unit of local government, or a school district, other than an independent

contractor, who is a member of any reserve component of the United States armed forces or of

any reserve component of the Illinois State Militia for any period actively spent in military

service, including basic training, special or advanced training (even if voluntary), and annual

training. During such leaves, an employee’s seniority and benefits continue to accrue. Moreover,

during leaves for annual training, an employee shall continue to receive his or her regular

compensation as a public employee without any offset for his or her military pay. For basic

training leaves and up to 60 days of special or advanced training, if the employee’s military

compensation is less than what he or she would have received as a public employee, the

employee must be paid the difference between his or her regular compensation and his or her

military base pay. The Act is not subject to modification by home rule units. 5 ILCS 325/1.1.

5. [5.142] Local Government Employees Benefits Continuation Act

The Local Government Employees Benefits Continuation Act, 50 ILCS 140/1, et seq.,

requires local governmental employers (including home rule units) to continue to pay employees

who are in the reserves and have been mobilized to active duty by order of the President (a) the

same regular compensation they were receiving at the time of mobilization, plus (b) all benefits,

but (c) minus the amount of their base military pay. 50 ILCS 140/2. Payment must continue for

the duration of their active military service. Any collective bargaining agreements or employer

policies more generous than this Act will, of course, control. The only exception to this Act is for

employers who have 20 percent or more of their employees mobilized.

6. [5.143] Uniformed Services Employment and Reemployment Rights Act of 1994

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.

§4301, et seq., grants employment and reemployment rights to any person who has applied for,

was a member of, or has had an obligation to the uniformed services (the armed forces, national

guard, commissioned public health service, and, although technically not uniformed services,

certain types of service in the National Disaster Medical System), whether as a volunteer, draftee,

or reservist. A person who is separated from service under other than honorable conditions loses

the statute’s protections and benefits. 38 U.S.C. §4304. The statute prohibits discrimination on the

basis of an individual’s membership in the uniformed services with regard to any aspect of

employment and forbids retaliatory employer action. 38 U.S.C. §4311.

To be eligible for reemployment, an employee generally must (a) give advance written or

verbal notice of service obligations (subject to certain exceptions); (b) not have accumulated

more than five years of service-related absences (subject to exceptions); and (c) timely (as

determined in the Act) report back to work (for leaves of less than 31 days) or seek reemployment

(for leaves of 31 or more days). 38 U.S.C. §4312. An employer may not have to reemploy an

eligible former employee if (a) reemployment is impossible or unreasonable due to a change in

circumstances; (b) the accommodation or training necessary for reemployment would impose an

undue hardship; or (c) the person’s employment was for a brief, nonrecurrent period in which no

reasonable expectation of employment could have arisen. The employer bears the burden of proof

as to these reemployment exceptions. 38 U.S.C. §4312(d). An employer may require that an

employee returning from a leave of more than 30 days document his or her reemployment

eligibility. 38 U.S.C. §4312(f).

An eligible employee returning from service must be reemployed in the position he would

have had if he had not left, provided the employee is qualified to perform the work after the

employer’s reasonable efforts to qualify him. 38 U.S.C. §4313. If unqualifiable, the employee

must be reemployed in the position formerly held. An employee returning from more than 90

days of service has additional rights to placement in positions “of like seniority, status, and pay”

to the one he would have had if he had been qualified (or, should that fail, his prior position). An

employee with service-related disabilities who, despite reasonable accommodation, is unqualified

for the position he would have had but for his service must be placed in (a) any position

“equivalent in seniority, status, and pay” that he is qualified to perform with reasonable

accommodation or (b) if that fails, the nearest approximation of an equivalent position in terms of

seniority, status, and pay for which he qualifies. An employee who, for reasons other than

disabilities, is unqualified to perform the position he would have had or his prior position despite

his employer’s reasonable efforts to qualify him must be placed in any other position of lesser

status and pay that he is qualified to perform, with full seniority.

Employees returning after more than 30 days cannot be discharged without cause within the

first 180 days of their reemployment. 38 U.S.C. §4316. Employees returning after 180 days

cannot be discharged without cause within the first year. Returning employees are entitled to the

seniority and other rights and benefits determined by seniority that they had when they left, plus

the additional seniority and rights and benefits that they would have attained had they remained

employed. For non-seniority-determined benefits, returning employees are considered to have

been on leave of absence and therefore entitled only to those non-seniority-determined benefits

provided to similar employees on leave and may be required to pay the employee costs, if any, of

any funded non-seniority-determined benefit to the same extent as other employees on leave.

Health plans must continue their insurance coverage for up to 24 months while the eligible

employees are on leave. 38 U.S.C. §4317. Returning employees shall be treated as not having

incurred a break in service under their pension plan, and time spent in the uniformed service shall

constitute eligible service for purposes of determining the non-forfeitability and accrual of plan

benefits. 38 U.S.C. §4318. Employers who violate the statute will be required to make any

employee whole and to pay the employee’s attorneys’ fees and, if the violation is willful, will be

liable for liquidated damages. 38 U.S.C. §§4323 – 4325.

The Veteran Benefits Improvements Act of 2004, Pub.L. No. 108-454, 118 Stat. 3598, among

other changes, for the first time requires employers to provide employees with notice of their

USERRA rights. While the notice need not be via a posting, an acceptable notice in the form of a

poster can be found at http://www.dol.gov/elaws/userra.htm. The U.S. Department of Labor

recently finalized its regulations that interpret various provisions of USERRA. See 20 C.F.R. pt.

1002.

T. [5.144] State Officials and Employees Ethics Act

The State Officials and Employees Ethics Act, 5 ILCS 430/1-1, et seq., adopts strict new

rules for state employees and state agencies with regard to campaigning and revises various other

election, conflict of interest, and lobbying statutes. While the Act itself addresses state employees

and officials, §70-5 expressly requires local governments to adopt ordinances or resolutions no

less restrictive than §5-15 (ethical conduct) and Article 10 (gift ban) of the Act. Although the Act

also addresses numerous other concerns — such as placing additional restrictions on revolving

door hiring and prohibitions on persons, their spouses, and immediate family members who live

with them from serving on boards, commissions, task forces, or authorities created by state law or

by executive order — this section of the chapter addresses solely the prohibited political activity

and gift ban provisions of the Act.

The Act, and hence each local government’s ordinance, prohibits employees from

intentionally performing any “prohibited political activity during any compensated time (other

than paid time off or compensatory time off) . . . [or misappropriating any local governmental]

property or resources by engaging in any prohibited political activity for the benefit of any

campaign for elective office or any political organization.” 5 ILCS 430/5-15(a). It is also a

violation to require an employee to perform any prohibited political activity (1) as part of the

employee’s job duties, (2) as a condition of employment, or (3) during any time off that is

compensated by the employer. 5 ILCS 430/5-15(b). Nor can an employee be required to

participate in prohibited political activities in return for additional compensation or benefits or be

awarded additional compensation and benefits for engaging in any prohibited political activity. 5

ILCS 430/5-15(c).

Prohibited political activity is broadly defined to include 15 specific types of political

activity, whether on behalf of or against candidates or referendum questions, which can be

summarized as follows: (1) preparing for, organizing, or participating in political events such as

rallies and demonstrations; (2) soliciting contributions (monetary or otherwise) and/or selling or

distributing tickets for political events; (3) political polling; (4) assisting at polls on election day

on behalf of any political organization, candidate, or referendum question; (5) any activities

relating to petitions for or against candidates or referendum issues; (6) making contributions; (7)

campaigning; (8) preparing or reviewing responses to questionnaires; (9) participating in a

political party convention or in a recount or challenge to an election; and (10) preparing,

distributing, or mailing campaign literature, signs, or other campaign material. 5 ILCS 430/1-5.

Included in the Act is a gift ban that prohibits anyone covered under the Act from soliciting

or accepting a gift from a prohibited source or in violation of any federal or state statute, rule, or

regulation. 5 ILCS 430/10-10. A prohibited source is someone seeking official action from the

entity, doing or wanting to do business with the entity, engaging in activities regulated by the

entity, having interests that may be substantially affected by the performance or nonperformance

of the duties of a member of the entity, or acting as a registered lobbyist. The ban includes the

spouse of and any immediate family member living with an officer, member, or employee of the

entity. A gift includes a gratuity or discount, entertainment or hospitality, a loan or forbearance,

or an item of monetary value.

There is an extensive list of items and activities that are exempt from the gift ban prohibitions

of the Act, such as

1. opportunities, benefits, and services that are available on the same conditions as for the

general public;

2. anything for which the officer, member, or employee or pays the market value;

3. any (a) contribution that is lawfully made under the Election Code or under this Act or

(b) activities associated with a fundraising event in support of a political organization or

candidate;

4. educational materials and missions;

5. travel expenses for a meeting to discuss public employer business;

6. a gift from a relative, meaning those people related to the individual as listed in the Act;

7. anything provided by an individual on the basis of a personal friendship unless the

member, officer, or employee has reason to believe that, under the circumstances, the gift

was provided because of the official position or employment of the member, officer, or

employee and not because of the personal friendship; in determining whether a gift is

provided on the basis of personal friendship, the employee shall consider the

circumstances under which the gift was offered, such as

a. the history of the relationship between the individual giving the gift and the recipient

of the gift, including any previous exchange of gifts between those individuals;

b. whether to the actual knowledge of the member, officer, or employee the individual

who gave the gift personally paid for the gift or sought a tax deduction or business

reimbursement for the gift; and

c. whether to the actual knowledge of the member, officer, or employee the individual

who gave the gift also at the same time gave the same or similar gifts to other

officers, members, or employees.

8. food or refreshments not exceeding $75 per person in value on a single calendar day;

provided that the food or refreshments are (a) consumed on the premises from which they

were purchased or prepared or (b) catered (for the purposes of this consideration,

“catered” meaning food or refreshments that are purchased ready to eat and delivered by

any means);

9. food, refreshments, lodging, transportation, and other benefits resulting from the outside

business or employment activities (or outside activities that are not connected to the

duties of the officer, member, or employee as an officeholder or employee) of the officer,

member, or employee or the spouse of the officer, member, or employee, if the benefits

have not been offered or enhanced because of the official position or employment of the

officer, member, or employee and are customarily provided to others in similar

circumstances;

10. intragovernmental and intergovernmental agency gifts (for the purpose of the Act,

“intragovernmental gifts” means any gift given to a member, officer, or employee of a

state agency from another member, officer, or employee of the same state agency; “intergovernmental

gift” means any gift given to a member, officer, or employee of a local

governmental agency by a member, officer, or employee of another governmental

agency, of a federal agency, or of any governmental entity;

11. bequests, inheritances, and other transfers at death;

12. any item or items from any one prohibited source during any calendar year having a

cumulative value of less than $100. 5 ILCS 430/10-15.

The recipient of a gift who would violate §10-30 of the Act must, at his or her discretion,

return the item to the donor or give the item or an amount equal to its value to an appropriate

charity that is exempt from taxation under the Internal Revenue Code, 26 U.S.C. §501(c)(3).

Local governments may provide for penalties similar to those provided for in the Act. A

violation under §15 of Article 5 (ethical conduct) is a Class A misdemeanor. The Act also

provides for fines of up to $5,000, and the possibility of discipline and/or discharge if the violator

is an employee. 5 ILCS 430/50-5. The Act expressly directs the Attorney General to develop

model ordinances and resolutions in compliance with the Act for use by local governments. This

Act is not subject to modification by home rule units.

U. [5.145] Time Off for Official Meetings Act

As provided by the Time Off for Official Meetings Act, 50 ILCS 115/0.01, et seq., any

elected official of a local government or school district on the day and time of an official meeting

of the public body to which the official was elected shall be entitled to leave for the time during

which the meeting is held and any necessary travel time. The elected official must notify the

employer in advance, and the employer cannot refuse to grant the leave or otherwise penalize the

employee for taking the leave except that the leave need not be paid leave. 50 ILCS 115/1.

V. [5.146] Local Government Disaster Service Volunteer Act

The Local Government Disaster Service Volunteer Act, 50 ILCS 122/1, et seq., permits local

governmental employees who are certified disaster service volunteers with the Red Cross up to 20

working days of paid leave in a 12-month period to participate in specialized disaster relief

services related to a disaster in the state. 50 ILCS 122/15. The Red Cross or the Illinois

Emergency Management Agency must request the employee’s services, and technically the

employer must approve. The leave is to be without loss of seniority, pay, vacation, compensatory

time, personal days, sick time, or earned overtime accumulation. Id. The Act permits local

governments to adopt its provisions by ordinance. 50 ILCS 122/5.

X. PROMOTIONS

A. [5.147] General Considerations

As with all employment decisions, employers may not discriminate against employees in

protected categories and may not retaliate by denying promotions to employees who exercise

their rights under acts protecting those rights, such as the Wage Payment and Collection Act.

B. [5.148] Civil Service Rules

Division 1 of the Illinois Municipal Code’s promotion rules parallels the hiring procedures of

civil service commissions in many respects. The civil service commission is charged with

establishing rules to provide for promotions on the basis of “ascertained merit and seniority in

service and examination.” Code §10-1-13. Whenever practicable, vacancies must be filled by

promotion rather than outside hiring.

All promotion examinations must be competitive and open to members of the next lower rank

who apply. Applicants who obtain identical scores will be ranked in order of their seniority in the

position from which they are applying. Promotion eligibility lists must be posted within 60 days

of the examinations. Eligible applicants who meet veteran’s preference requirements have the

right to claim a preference equal to an additional .7 points for each six months or fraction thereof

of military service for up to 30 months (as opposed to five points for new hires). Code §10-1-16.

As noted in §5.58 above, the employee must claim the preference. Butts v. Civil Service

Commission of City of Aurora, County of Kane, 108 Ill.App.2d 258, 246 N.E.2d 853 (2d Dist.

1969). Additionally, once a veteran has been promoted from an eligibility list in which the

preference was used, the veteran may no longer claim the veteran’s preference for a promotion.

Code §10-1-16.

Unlike the outside hiring application procedure, the commission may submit the names of the

top three candidates (rather than just one); in communities of more than 130,000 but fewer than

two million inhabitants, the commission may submit no more than five names. Code §10-1-13. In

making the hiring decision, however, the person doing the hiring may not pass over the person

having the highest rating more than once and may not pass over the second highest rated

candidate more than twice. This requirement applies not only to the top two names on an original

eligibility list but to all names as they rotate to the top. Morrisey v. Rochford, 74 Ill.App.3d 682,

394 N.E.2d 5, 31 Ill.Dec. 89 (1st Dist. 1979) (lieutenant candidate ranked 22 on list of 67 should

have been promoted when 63 eligible persons were promoted). The commission also shall (rather

than may) strike all names off a promotion eligibility list after they have remained on it not less

than two years and no more than three years. First, however, the commission must inform the

appointing authority, who must fill all vacancies before the names are struck. The rest of the

promotion rules under Division 1 of the Code are the same as those for original appointments.

See §§5.53 – 5.60 above.

C. [5.149] Fire Department Promotion Act

Adopted August 4, 2003, the Fire Department Promotion Act, 50 ILCS 742/1, et seq., sets

forth guidelines for promotions to certain ranks within certain fire departments — guidelines that

in many cases supersede the provisions of Division 1 of the Illinois Municipal Code as described

in §5.148 above. When there is a conflict between the Promotion Act and Division 1 (or the Fire

Protection District Act or the Board of Fire and Police Commissioners Act, whichever is

applicable), the Promotion Act controls. 50 ILCS 742/10(b).

The Promotion Act applies to full-time municipal fire departments that are subject to a

collective bargaining agreement and to all full-time fire protection districts regardless of whether

they are subject to a collective bargaining agreement. University and state departments,

combination fire/police departments in existence on January 1, 2002, as well as departments in

municipalities with a population of over one million inhabitants are excluded. 50 ILCS 742/5.

Home rule municipalities are prohibited from exempting themselves from the Promotion Act’s

requirements. 50 ILCS 742/10(c).

For covered departments, the Promotion Act applies to all promotions to all positions,

“except those specifically excluded in items (i), (ii), (iii), (iv), and (v) of the definition of

‘promotion’ Section 5 unless those positions are covered by a collective bargaining agreement in

force on the effective date” of the Act. 5 ILCS 742/10(a). “Promotion,” as defined, means any

appointment or advancement to a rank within the affected department

(1) for which an examination was required before January 1, 2002; (2) that is

included within a bargaining unit; or (3) that is the next rank immediately above the

highest rank included within a bargaining unit, provided such rank is not the only

rank between the Fire Chief and the highest rank included within the bargaining

unit, or is a rank otherwise excepted under item (i), (ii), (iii), (iv), or (v) of this

definition. “Promotion” does not include appointments (i) that are for fewer than

180 days; (ii) to the positions of Superintendent, Chief, or other chief executive

officer; (iii) to an exclusively administrative or executive rank for which an

examination is not required; (iv) to a rank that was exempted by a home rule

municipality prior to January 1, 2002, provided that after the effective date of this

Act no home rule municipality may exempt any future or existing ranks from the

provisions of this Act; or (v) to an administrative rank immediately below the

Superintendent, Chief, or other chief executive officer of an affected department,

provided such rank shall not be held by more than 2 persons and there is a

promoted rank immediately below it. Notwithstanding the exceptions to the

definition of “promotion” set forth in items (i), (ii), (iii), (iv), and (v) of this

definition, promotions shall include any appointments to ranks covered by the terms

of a collective bargaining agreement in effect on the effective date of this Act. 50

ILCS 742/5.

“Rank” means any position within the chain of command of a fire department to which

employees are regularly assigned to perform duties related to providing fire suppression, fire

prevention, or emergency services. Id.

The Promotion Act sets forth minimums standards for the promotion process. For example,

while an employer is not required to maintain promotion lists at all times, if a promotion list is

not in effect when a vacancy occurs, a list must be prepared and distributed within 180 days after

the vacancy. 50 ILCS 742/20(e). Every component of the testing and evaluation procedure must

be published to all eligible candidates when the announcement of promotional testing is made. 50

ILCS 742/15(c). There can be eligibility requirements that must be met in order to participate in

the promotion process, such as length of employment, education, training, and certification in

subjects and skills related to firefighting. 50 ILCS 742/15(b). Such criteria, however, must be

published at least one year prior to the date of the beginning of the promotion process, and all

department employees must be given an equal opportunity to meet those eligibility requirements.

Id.

The Promotion Act sets forth the factors that may be used to rank candidates for promotion

and the order in which they must be given:

Written examination score: The written examination must consist of matters relating to the

duties regularly performed by persons holding that rank within the department being tested for

and must be based only on the contents of written materials identified and made readily available

at least 90 days before the examination. The employer must maintain reading and study materials

for its current written examination and the reading list for the last two written examinations or for

a period of five years, whichever is less, for each rank and must make these materials available

and accessible at each duty station. Department staff and the appointing authority are prohibited

from seeing actual test questions before the test is administered, and sample questions may not

later appear on the actual test. 50 ILCS 742/35.

Exams are to be graded the day of the test in the presence of the observers or, if graded by a

testing agency off site, the observers shall witness the sealing and the shipping of the tests for

grading and the subsequent opening of the scores upon the return from the testing agency.

Candidates have the right to their score the day of the exam (or, if applicable, the day the test

results come back from the testing agency — or the appointing authority may arrange to have

them mailed directly by the agency to the employee) and to review the answers to the

examination that the examiners consider correct. The written examination shall be administered

after the determination and posting of the seniority list, ascertained merit points, and subjective

evaluation scores. Id.

Department seniority: Seniority points shall be based only on service within the department,

calculated as of the date of the written examination, and posted before the written examination is

administered or the promotion list is compiled. 50 ILCS 742/40.

Ascertained merit: Ascertained merit points may be awarded for education, training, and

certification in subjects and skills related to the fire service. The basis for granting ascertained

merit points must be published at least one year prior to the date they are awarded, all eligible

persons must be given an equal opportunity to obtain such points, and the points awarded must be

posted before the written examination is administered and before the promotion list is compiled.

50 ILCS 742/45(a).

Subjective evaluation: A promotion examination may include an oral interview, tactical

evaluation, performance evaluation, or other components based on subjective evaluation of

the examinee. Methods also may include using any employee assessment centers, evaluation

systems, chief’s points, or other methods. Subjective components must be disclosed to all

candidates prior to their application, be job-related, and be applied uniformly. If a

performance evaluation is used, it must be done annually, be made available to each

candidate for review, include a section for the candidate to make comments and provide

documentation refuting the evaluation, and be subject to grievance procedures. Candidates

have the right to documentation of their score, and points awarded for this category must be

posted before the written examination is administered and before the promotion list is

compiled. 50 ILCS 742/50.

Physical criteria, including but not limited to fitness testing, agility testing, and medical

evaluations, are specifically barred from the promotion process. 50 ILCS 742/20(b).

The weight, if any, that is given to any component is to be set by the appointing authority (i.e.

civil service commission) but is subject to bargaining. The appointing authority can establish a

minimum passing score, but it must be announced prior to the date of the promotion process and

must be an aggregate of all components of the testing process. All candidates shall be allowed to

participate in all components of the testing process irrespective of their score on any one

component. 50 ILCS 742/30.

The scores for each component of the testing and evaluation procedures must be disclosed to

each candidate as soon as practicable after the component is completed. 50 ILCS 742/15(c).

Throughout the testing process, the Act calls for the presence of impartial monitors — two nonemployees

appointed by the union and two additional observers appointed by the appointing

authority (i.e. civil service commission) — to monitor the process to insure it is being completed

properly. 50 ILCS 742/25(b).

After the testing is completed and any applicable military points are added, the lists are to

remain valid for a period of not less than two nor more than three years from the date of the initial

posting. 50 ILCS 742/20(e). Integrated lists are prohibited. Nevertheless, if a vacancy is not filled

due to a lack of funding or authorization and is subsequently reinstated, the promotion list in

effect at the time of the vacancy shall be continued in effect until all positions vacated have been

filled or for a period up to five years from the date of the vacancy. 50 ILCS 742/20(d). In such

event, the candidate or candidates who would have otherwise been promoted when the vacancy

originally occurred shall be promoted. Id.

Any affected person or party who believes that an error has been made with respect to

eligibility to take an examination, examination result, placement or position on a promotion list,

or veteran’s preference shall be entitled to a review of the matter by the appointing authority or as

otherwise provided by law. 50 ILCS 742/60.

Employees have the right to decline one promotion without being removed from the list. 50

ILCS 742/20(d). Moreover, unlike the provisions of Division 1 of the Code, the highest ranking

candidate on the eligibility list must be appointed to the position, except that the appointing

authority (civil service commission) has the right to pass over that person and appoint the next

highest ranked person on the list if it has reason to conclude that the highest ranking person has

demonstrated substantial shortcomings in work performance or has engaged in misconduct

affecting the person’s ability to perform the duties of the promoted rank since the posting of the

promotion list. 50 ILCS 742/20(d). If this occurs, the reasons for passing over the candidate must

be documented and, unless the reasons are not remedial, the person cannot be passed over more

than once. Id. The person passed over also has the right to grieve the pass-over under any

applicable grievance procedure. Id.

By its terms, the Act does not limit the appointing authority (the civil service commission)

from utilizing different or supplemental promotional criteria provided they are uniformly applied

and are job related (50 ILCS 742/10(d)), nor does it prohibit the negotiation between employers

and their unions of the conditions, criteria, or procedures for the promotion of employees who are

members of bargaining unit (id.). Moreover, employers and their unions may agree to waive any

and all provisions of the Promotion Act, provided that any such waivers shall be considered

permissive subjects of bargaining. Id. Many employers have negotiated waivers of certain

provisions of the Promotion Act through collective bargaining.

Persons who knowingly divulge or receive test questions or answers before the exam or

otherwise knowingly violate or subvert the Promotion Act may be subject to charges for official

misconduct. Likewise, in addition to any disciplinary action imposed, persons who are the

knowing recipients of test information in advance are to be disqualified from the promotion

examination or, if already promoted, demoted. 50 ILCS 742/65.

XI. DISCIPLINE AND DISMISSAL

A. [5.150] Nondiscrimination

As with all employment decisions, employers must not discipline or discharge employees for

unlawful reasons. Title VII, the Age Discrimination in Employment Act, the Americans with

Disabilities Act, and the Illinois Human Rights Act apply in termination decisions. See §§5.8 –

5.40 above. In addition, employers will be liable for discharging employees who exercise their

rights under acts discussed earlier in this chapter, such as the Wage Payment and Collection Act,

that prohibit employers from engaging in retaliation.

B. [5.151] Public Employees at Will?

Illinois law presumes unless proven otherwise that employees hired for an indefinite period of

time are to be employed “at will,” i.e., an employer may discharge them at any time for any

reason (provided it is not unlawful). Although this presumption is still true today, many

employees are no longer “at will” because they are subject to collective bargaining agreements or

individual employment contracts that limit an employer’s ability to discipline or terminate them

— usually only for just cause. Additionally, handbooks and other employer statements may

constitute contracts of employment sufficient to take employees out of their at-will status.

The employment-at-will doctrine also applies to public employers. Those employees who are

not covered by collective bargaining agreements or employment contracts are employed at will

and may be disciplined or terminated for any reason. There are, however, two important

exceptions that apply to public employees only. First, state laws or local ordinances may limit a

public employer’s ability to terminate employees without cause. Second, employees may have

constitutional procedural due process rights based on such statutory restrictions or possibly even

employee handbooks. See §§5.42 – 5.45 above. Thus, public employers must look very closely at

an employee’s status before treating the employee as an at-will employee subject to discharge

without cause or without first providing procedural protections.

C. Statutory Restrictions on Discipline and Dismissal

1. [5.152] Police Officers and Firefighters

The disciplinary provisions relating to police officers and firefighters are covered in Chapter

6, Police Departments and Fire Departments, of this handbook. The civil service provisions

described in the following sections apply only to public employees who are not police officers or

firefighters.

Under the Firemen’s Disciplinary Act, 50 ILCS 745/1, et seq., a firefighter’s rights when

facing disciplinary action attach for any charge seeking his or her removal, discharge, or

suspension from duty in excess of 24 hours.

2. Civil Service Provisions

a. [5.153] Basis for Discipline or Discharge — Cause

The civil service provisions of Division 1 of the Illinois Municipal Code specifically state

that no employee “in” the classified civil service who is appointed under its rules “may be

removed or discharged, or suspended for a period of more than 30 days, except for cause upon

written charges and after an opportunity to be heard in his own defense.” [Emphasis added.] Code

§10-1-18. Cause has been described as

some substantial shortcoming which renders continuance in his office or

employment in some way detrimental to the discipline and efficiency of the service

and something which the law and a sound public opinion recognize as a good cause

for his no longer occupying the place. Senese v. Civil Service Commission of City of

Chicago, 88 Ill.App.2d 172, 232 N.E.2d 256, 258 (1st Dist. 1967), quoting Murphy v.

Houston, 250 Ill.App. 385, 394 (1st Dist. 1928).

Probationary employees, however, are not subject to the cause provisions of Division 1. Courts

have held that probationary employees are not “in” the classified service until they successfully

complete their probationary period and therefore are not protected by Code §10-1-18. See, e.g.,

People ex rel. Shelton v. City of Chicago, 13 Ill.App.3d 729, 301 N.E.2d 162 (1st Dist. 1973)

(probationary city employees may be dismissed without hearing despite Code §10-1-18).

However, the Illinois Supreme Court has noted in a pension case involving a firefighter that an

employer still has an obligation to act in “good faith” when discharging employees, even

assuming the employer need not have cause. DiFalco v. Board of Trustees of Firemen’s Pension

Fund of Wood Dale Fire Protection District No. One, 122 Ill.2d 22, 521 N.E.2d 923, 927, 118

Ill.Dec. 446 (1988). Discharging a disabled probationary firefighter to avoid pension liability

would not, in the court’s view, be a good-faith decision.

Additionally, Division 1of the Code does not specifically limit the power of an employer to

suspend a subordinate for a reasonable period, not exceeding 30 days, except that any employee

suspended for more than 5 days or within 6 months after a previous suspension is entitled, upon

request, to a hearing concerning the “propriety” of such a suspension. Code §10-1-18(a).

NOTE: The rules for police officers and firefighters are different. See Chapter 6 of this handbook.

b. Procedural Requirements

(1) [5.154] Probationary employees

Probationary employees are not subject to the discipline and hearing provisions set forth in

Illinois Municipal Code §10-1-18 for persons “in” the classified service. People ex rel. Shelton v.

City of Chicago, 13 Ill.App.3d 729, 301 N.E.2d 162 (1st Dist. 1973). Nor, for that matter, do they

have a sufficient property interest in their employment to be entitled to a hearing under the due

process clause, Amendment XIV, of the U.S. Constitution. Bishop v. Wood, 426 U.S. 341, 48

L.Ed.2d 684, 96 S.Ct. 2074 (1976). At or before the expiration of an employee’s probationary

period, the department head may, “by and with the consent of the commission, discharge him or

her upon assigning in writing his or her reason therefor to the commission.” [Emphasis added.]

Code §10-1-14. The consent and writing requirements are the only two legal prerequisites to

discharging a probationary employee. People ex rel. Charles v. Telford, 48 Ill.App.3d 928, 363

N.E.2d 613, 6 Ill.Dec. 799 (4th Dist. 1977) (probationary employee ordered reinstated when

department head did not assign in writing reasons for dismissal and commission never really

considered dismissal).

(2) [5.155] Non-suspension discipline

Nothing in Division 1 of the Illinois Municipal Code either limits an employer’s ability to

impose non-suspension discipline or subjects it to special procedural requirements. Note,

however, that an employer may still be limited under contractual provisions or ordinances or by

constitutional protections should the employee have a property interest in his or her employment.

See §§5.42 – 5.45 above.

(3) [5.156] Suspensions not exceeding thirty days

Nothing in Division 1 of the Illinois Municipal Code limits the power of an employer to

suspend an employee for a reasonable period not to exceed 30 days, except that an employee

suspended for more than 5 days or suspended within 6 months after a previous suspension shall

be entitled, upon request, to a hearing before the commission concerning the propriety of the

suspension. Code §10-1-18(a).

NOTE: The rules for police officers and firefighters are different. See Chapter 6, Police

Departments and Fire Departments, of this handbook.

(4) [5.157] Discharge or suspensions of more than thirty days

Employees facing discharge or a suspension of more than 30 days have significant procedural

rights under Division 1 of the Illinois Municipal Code.

(a) [5.158] Charge requirements

Before an employee may be removed or suspended for more than 30 days, the charges of

which he or she is accused must be placed in writing and filed with the commission. Code §10-1-

18. This is a jurisdictional prerequisite to the commission’s authority. Cartan v. Gregory, 329

Ill.App. 307, 68 N.E.2d 193 (1st Dist. 1946). The charges must be in a clearly understandable

form so that the employee can understand the grounds for discipline. People ex rel. Elmore v.

Allman, 314 Ill.App. 194, 40 N.E.2d 812 (1st Dist. 1942) (abst.), aff’d, 382 Ill. 156 (1943).

(b) [5.159] Interrogation rights

Before being interrogated or examined by or before any disciplinary board, investigator, or

departmental agent, the results of which may be the basis for filing charges seeking removal or

discharge, an employee must be advised in writing (1) as to the specific act allegedly committed;

(2) that admissions made in the course of the hearing, interrogation, or examination may be used

as the basis for charges seeking removal or discharge; (3) that he or she has the right to counsel;

and (4) that a complete record of any hearing, interrogation, or exam will be made available

without charge and without delay. Illinois Municipal Code §10-1-18. Failure to provide this

information can result in a dismissal of the charges against an employee. Danison v. Paley, 41

Ill.App.3d 1033, 355 N.E.2d 230 (4th Dist. 1976) (suspension reversed when employee was not

given statutory warnings during investigation even though employer had not decided whether

charges would result in discharge). Courts have noted, however, that these rights apply only in the

context of disciplinary proceedings for which removal or discharge is being considered (Newby v.

Civil Service Commission of City of Chicago, 36 Ill.App.3d 716, 344 N.E.2d 732 (1st Dist.

1976)), and that notice of rights is not required during a preliminary investigation in which the

accused is not interrogated or examined (Fletcher v. Civil Service Commission of City of

Waukegan, 6 Ill.App.3d 593, 286 N.E.2d 130 (2d Dist. 1972)). Cf. Norris v. City of Aurora, 105

Ill.App.3d 1051, 433 N.E.2d 279, 60 Ill.Dec. 482 (2d Dist. 1981) (lack of notice during

preliminary questioning of employee not sufficient to dismiss charges when evidence obtained

was not used during commission hearing).

Accused employees must also have “an opportunity to be heard” in their own defense. Illinois

Municipal Code §10-1-18(a). In order to have an opportunity to be heard the employee must

receive notice of the hearing. City of Chicago v. Gillen, 222 Ill. 112, 78 N.E. 13 (1906). Division

1 of the Code provides no specific procedures or time limits for notifying employees; a

commission is entitled to adopt its own notice rules provided that they give the employee an

opportunity to prepare for the hearing. Fletcher v. Civil Service Commission of City of Waukegan,

6 Ill.App.3d 593, 286 N.E.2d 130 (2d Dist. 1972). Additionally, there is no specific provision

requiring employers to hold a hearing within a certain amount of time. Norris v. City of Aurora,

105 Ill.App.3d 1051, 433 N.E.2d 279, 60 Ill.Dec. 482 (2d Dist. 1981) (no requirement that

hearing must be held within 30 days after employee’s request to be heard).

At the hearing, the accused may have an attorney present. Code §10-1-18. The commission is

entitled to administer oaths and subpoena witnesses and documents. It also may compel

testimony, but it cannot use compelled testimony against an employee in a criminal proceeding.

See, e.g., Kammerer v. Board of Fire & Police Commissioners of Village of Lombard, 44 Ill.2d

500, 256 N.E.2d 12 (1970); D’Acquisto v. Washington, 640 F.Supp. 594 (N.D.Ill. 1986). The

charges against the employee need be proven only by a preponderance of the evidence. Oratowski

v. Civil Service Commission of City of Chicago, 3 Ill.App.2d 551, 123 N.E.2d 146 (1st Dist.

1954). The commission’s findings do not have to be formal or detailed; a simple decision will do.

Norris, supra (formal written findings not required by Division 1 of Code).

Public Act 91-650, effective November 30, 1999, amended Code §10-1-18 to provide that,

for non-home rule units of government, collective bargaining over alternatives to the civil service

commission handling discipline would be permissive rather than mandatory unless the parties

already had negotiated such an alternative prior to or at the time of the effective date of this

amendatory Act, in which case such bargaining would be considered mandatory.

D. Contractual Limitations

1. [5.161] Individual Employment Contracts or Collective Bargaining Agreements

Public employers are limited in their disciplinary and discharge actions by the provisions of

any individual contracts or collective bargaining agreements they might have with their

employees. Many collective bargaining agreements, for example, limit an employer’s right to

discharge employees without cause. In the public sector, when contracts lack such provisions, it is

usually because for-cause discipline is already provided for by statute or ordinance.

2. [5.162] Employee Handbooks and Other Employer “Statements”

An employee handbook or other policy statement could create enforceable contract rights “if

the traditional requirements for contract formation are present.” Duldulao v. St. Mary of Nazareth

Hospital Center, 115 Ill.2d 482, 505 N.E.2d 314, 318, 106 Ill.Dec. 8 (1987). Courts will find that

a contract exists when (a) the language of the policy statement or correspondence contains “a

promise clear enough that an employee would reasonably believe that an offer has been made,”

(b) the statement is “disseminated to the employee in such a manner that the employee is aware of

its contents and reasonably believes it to be an offer,” and (c) the employee accepts the offer by

“continuing to work.” Id.

Most post-Duldulao cases have concerned the alleged violation of rights granted employees

through an employee handbook or other written policy statement. These cases usually turn on

whether the alleged “rights” were stated with sufficient clarity and definitiveness to lead an

employee to reasonably believe an “offer” of an employment contract had been made. See, e.g.,

Lee v. Canuteson, 214 Ill.App.3d 137, 573 N.E.2d 318, 157 Ill.Dec. 900 (3d Dist. 1991)

(handbook stating it was employer’s “sincere intent” to be fair and listing disciplinary approaches

that “may” be used found insufficient to create binding contract); Harrell v. Montgomery Ward &

Co., 189 Ill.App.3d 516, 545 N.E.2d 373, 136 Ill.Dec. 849 (1st Dist. 1989) (portions of policy

manuals defining types of employment separations and establishing probation procedure held not

to amount to clear promise limiting employer’s right to terminate employees at will); Cassel v.

Ancilla Developers Group, Ltd., 704 F.Supp. 865 (N.D.Ill. 1989) (handbook’s grievance

procedure held to limit employer’s right to terminate at will). Handbooks containing prominently

placed and unequivocal disclaimers indicating that they are not intended to create a contract of

employment usually are not found to be contracts. Anders v. Mobil Chemical Co., 201 Ill.App.3d

1088, 559 N.E.2d 1119, 147 Ill.Dec. 779 (4th Dist. 1990) (handbook with disclaimer held not

binding); Bennett v. Evanston Hospital, 184 Ill.App.3d 1030, 540 N.E.2d 979, 133 Ill.Dec. 113

(1st Dist. 1989) (handbook with disclaimer not binding). But see, e.g., Long v. Tazewell/Pekin

Consolidated Communication Center, 215 Ill.App.3d 134, 574 N.E.2d 1191, 158 Ill.Dec. 798 (3d

Dist. 1991) (equivocal disclaimer hidden in text of handbook held ineffective); Wheeler v.

Phoenix Company of Chicago, 276 Ill.App.3d 156, 658 N.E.2d 532, 213 Ill.Dec. 62 (2d Dist.

1995) (inconspicuous, ambiguous disclaimer held ineffective).

If a handbook is considered to be a contract of employment, the employer may not alter the

handbook absent consideration beyond the employee’s simply continuing to be permitted to

work. In Doyle v. Holy Cross Hospital, 186 Ill.2d 104, 708 N.E.2d 1140, 237 Ill.Dec. 100 (1999),

the employer attempted to unilaterally modify a handbook years after the original manual was

disseminated. The original handbook was found to have created contractual rights for the

employees. In addition, the original handbook did not contain a clause reserving to the employer

the right to make unilateral changes to the handbook. Applying traditional principles of contract

law, the Illinois Supreme Court concluded that when an employer does not reserve the unilateral

right to alter and/or amend policies, an employer may not unilaterally modify a handbook, if it is

contractually bound to the original handbook, without sufficient consideration. The court then

held that continued employment by the employees does not constitute sufficient consideration.

Oral contracts are much more difficult to demonstrate in light of the evidentiary problems of

proving the contract. Oral representations, however, may be sufficient to establish a legally

enforceable employment contract. See, e.g., Davies v. Martel Laboratory Services, Inc., 189

Ill.App.3d 694, 545 N.E.2d 475, 136 Ill.Dec. 951 (1st Dist. 1989) (oral offer to make employee

“permanent” if she accepted offer and vice-president if she obtained MBA held binding).

3. [5.163] Implied Covenants of Good Faith and Fair Dealing

Illinois courts have, without exception, held firm in holding that employees have no

independent action sounding in contract for breach of an implied covenant of good faith and fair

dealing. See, e.g., Harrison v. Sears, Roebuck & Co., 189 Ill.App.3d 980, 546 N.E.2d 248, 137

Ill.Dec. 494 (4th Dist. 1989); Hugo v. Tomaszewski, 155 Ill.App.3d 906, 508 N.E.2d 1139, 1142,

108 Ill.Dec. 562 (5th Dist. 1987). Although the Illinois Supreme Court has yet to address the

issue, the appellate courts have resoundingly refused to “create an exception sounding in contract

to the general rule that an at will employment is terminable at any time for any or no cause that

would be broader than the exception to that rule created by our supreme court when it recognized

the tort of retaliatory discharge.” Dykstra v. Crestwood Bank, 117 Ill.App.3d 821, 454 N.E.2d 51,

55, 73 Ill.Dec. 307 (1st Dist. 1983). See also Powers v. Delnor Hospital, 135 Ill.App.3d 317, 481

N.E.2d 968, 90 Ill.Dec. 168 (2d Dist. 1985).

E. Employment Tort Claims

1. [5.164] General Tort Actions

Employees who believe they have been wronged always have the option of pursuing a claim

under various common law tort theories: fraud, defamation, intentional infliction of emotional

distress (IIED), etc. Occasionally, employees file suit based on the circumstances surrounding

their dismissal or discipline. For example, employees have brought suits alleging IIED in cases in

which employees have been disciplined (Grey v. First National Bank of Chicago, 169 Ill.App.3d

936, 523 N.E.2d 1138, 120 Ill.Dec. 227 (1st Dist. 1988) (bank’s discipline of employee for

absenteeism and dress code violations not found outrageous enough to constitute IIED), cert.

denied, 110 S.Ct. 719 (1990)); relieved of duty (Lundy v. City of Calumet City, 209 Ill.App.3d

790, 567 N.E.2d 1101, 153 Ill.Dec. 874 (1st Dist. 1991) (city’s stripping police officers of badges

due to questions of their mental states did not constitute IIED)); and even discharged (Pratt v.

Caterpillar Tractor Co., 149 Ill.App.3d 588, 500 N.E.2d 1001, 102 Ill.Dec. 900 (3d Dist. 1986)

(discharge alone did not constitute IIED)). Not only is IIED difficult to demonstrate, but when the

infliction was caused by coworkers and not encouraged or directed by the employer, such a claim

may be barred by the exclusivity provisions of the Workers’ Compensation Act. Meerbrey v.

Marshall Field & Co., 139 Ill.2d 455, 564 N.E.2d 1222, 151 Ill.Dec. 560 (1990).

Other common tort claims brought against employers or supervisors include intentional

interference with contractual relations and with prospective economic advantage and defamation

See, e.g., Marczak v. Drexel National Bank, 186 Ill.App.3d 640, 542 N.E.2d 787, 134 Ill.Dec. 441

(1st Dist. 1989) (discharged vice president failed to prove employer defamed him but did state

claim against his supervisors for interfering with his contractual relations). For a detailed

discussion of the many potential tort actions that may arise, see EMPLOYMENT

TERMINATION (IICLE 2002, Supp. 2005). Needless to say, employers can avoid much

potential litigation simply by acting reasonably and thoughtfully.

2. [5.165] Retaliatory Discharge

One tort claim that often arises is a relatively new limit on the employment-at-will doctrine:

retaliatory discharge. In 1978, the Illinois Supreme Court first recognized this tort for employees

discharged in retaliation for filing workers’ compensation claims. Kelsay v. Motorola, Inc., 74

Ill.2d 172, 384 N.E.2d 353, 23 Ill.Dec. 559 (1978). The court created the tort remedy because

such retaliatory discharges offended the public policy of the state as provided in the Workers’

Compensation Act. In Palmateer v. International Harvester Co., 85 Ill.2d 124, 421 N.E.2d 876,

52 Ill.Dec. 13 (1981), the Supreme Court acknowledged that the new tort covered violations of

any “clear mandate of public policy,” not just the public policies behind the WCA. In Palmateer,

the court found that the employee, discharged for informing the police that a fellow employee

was violating the law and for agreeing to assist in the investigation, had alleged a cause of action

for retaliatory discharge. Although admitting that there was “no precise definition of the term

[‘clear mandate of public policy’]” the court tried to provide some guidelines for the lower courts:

In general, it can be said that public policy concerns what is right and just and

what affects the citizens of the State collectively. It is to be found in the State’s

constitution and statutes and, when they are silent, in its judicial decisions. . . . [A]

matter must strike at the heart of a citizen’s social rights, duties, and responsibilities

before the tort will be allowed. [Citations omitted.] 421 N.E.2d at 878 – 879.

The court also emphasized that there would be no cause of action when purely personal

matters were at stake. 421 N.E.2d at 879. See also Price v. Carmack Datsun, Inc., 109 Ill.2d 65,

485 N.E.2d 359, 92 Ill.Dec. 548 (1985).

Unfortunately, later Supreme Court cases have done little to expound on the definition of

“public policy” besides noting that the court has not “ ‘rejected a narrow interpretation of the

retaliatory discharge tort’ and does not ‘strongly support’ the expansion of the tort.” Barr v.

Kelso-Burnett Co., 106 Ill.2d 520, 478 N.E.2d 1354, 1356, 88 Ill.Dec. 628 (1985) (U.S. and

Illinois Constitutions do not clearly mandate any public policy restricting company’s right to limit

free speech). Generally, the courts have recognized retaliatory discharge claims in only two types

of discharge cases: workers’ compensation cases and instances in which employees either refuse

to break the law or report crimes of fellow employees to the authorities (what have been called

“whistleblowing” or “citizen crime-fighter” cases). Carmel M. Cosgrave and Susan F. Zwick,

Identifying Public Policy in Retaliatory Discharge Cases in Illinois, 76 Ill.B.J. 506 (1988). The

whistleblowing and citizen crime-fighter policy areas are still evolving.

The courts have recognized that employees may base a cause of action on a federal law. The

court, however, first must find that the state tort has not been preempted by the federal

regulations. Koehler v. Illinois Central Gulf R.R., 109 Ill.2d 473, 488 N.E.2d 542, 94 Ill.Dec. 543

(1985) (finding federal Railway Labor Act, 45 U.S.C. §151, et seq., preempted state tort law

actions), cert. denied, 106 S.Ct. 3297 (1986). Also, the public policy contravened must be a

public policy of the state, not just the federal government. See generally 76 Ill.B.J. at 508 – 510

(discussion of preemption cases).

This tort applies only to persons who have been discharged. In a plurality decision, the

Illinois Supreme Court refused to recognize a cause of action based on retaliatory demotion.

Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 645 N.E.2d 877, 206 Ill.Dec. 625 (1994).

Given Zimmerman, employees against whom retaliation short of dismissal has been taken may

not have a private cause of action.

The courts also have established the general rules for pleading the tort. Employees have a

five-year statute of limitations period in which to file a retaliatory discharge claim. Henon v.

Lever Brothers Co., 114 Ill.App.3d 608, 449 N.E.2d 196, 70 Ill.Dec. 322 (1st Dist. 1983). To

plead successfully a prima facie case of retaliatory discharge, an employee must allege that he or

she was “(1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a

clear mandate of public policy.” Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.2d 526, 519

N.E.2d 909, 911, 116 Ill.Dec. 694 (1988) (injured employee forced to resign after requesting

medical attention stated cause of action). In what may be considered a fourth prima facie element,

the Supreme Court held in Fellhauer v. City of Geneva, 142 Ill.2d 495, 568 N.E.2d 870, 876, 154

Ill.Dec. 649 (1991), that recognition of a cause of action for retaliatory discharge must be

considered “necessary to vindicate the public policy underlying the employee’s activity, and to

deter employer conduct inconsistent with that policy” (claim of public employee allegedly

discharged for refusing to engage in official misconduct dismissed because law provided

employee with way to appeal discharge through hearing procedure); Mein v. Masonite Corp., 109

Ill.2d 1, 485 N.E.2d 312, 92 Ill.Dec. 501 (1985) (age discrimination claim dismissed because

Illinois Human Rights Act was intended to be exclusive remedy).

Once the employee has successfully pleaded a prima facie case, the employer may counter

the claim by attempting to show as an affirmative defense that the company had a legitimate

reason for discharging the employee. Netzel v. United Parcel Service, Inc., 181 Ill.App.3d 808,

537 N.E.2d 1348, 130 Ill.Dec. 879 (1st Dist. 1989). Unlike discrimination law, the burden of

proving that a legitimate reason existed apparently is on the employer; an employer’s allegation

of good cause does not shift the burden onto the employee to prove that the reason was pretextual.

537 N.E.2d at 1350.

In light of the Supreme Court’s interpretation that there is no wanton and willful conduct

exception to immunity under §2-201 of the Local Government and Governmental Employees

Tort Immunity Act (Tort Immunity Act), 745 ILCS 10/1-101, et seq., there is some question as to

whether municipalities are subject to retaliatory discharge claims. In re Chicago Flood Litigation,

176 Ill.2d 179, 196, 680 N.E.2d 265, 223 Ill. Dec. 532 (1997). Since this decision, some courts

have found that municipalities are completely immune from retaliatory discharge claims.

Zinnermon v. City of Chicago Department of Police, 209 F.Supp.2d 908 (N.D. Ill. 2002) (finding

city immune from retaliatory discharge claim).

Even assuming such claims are applicable against municipalities, there are limitations.

Municipalities are not subject to punitive damage claims in retaliatory discharge cases, for they

clearly are immune from punitive damage claims under §2-102 of the Tort Immunity Act. See

Boyles v. Greater Peoria Mass Transit District, 113 Ill.2d 545, 499 N.E.2d 435, 101 Ill.Dec. 847

(1986). Likewise, courts recognize that the statute of limitations for a retaliatory discharge claim

against a municipality is limited to the limitations period set forth in the Tort Immunity Act. See,

e.g. Halleck v. County of Cook, 264 Ill.App.3d 887, 637 N.E.2d 1110, 202 Ill.Dec. 374 (1st Dist.

1994).

F. Unemployment Compensation

1. [5.166] Coverage and Benefits

The Unemployment Insurance Act (UIA), 820 ILCS 405/100, et seq., provides eligible

employees with up to 26 weeks of unemployment compensation during a 12-month period. This

can be extended. 820 ILCS 405/403. The benefits provided to an eligible employee with a

nonworking spouse and/or dependent children, as set forth in §401 of the Act, have built-in

increases based on percentages of the employee’s average weekly wage. The percentages are also

linked to the statewide average weekly wage and to the date on which application is made. For

example:

With respect to any benefit year beginning on or after January 4, 2004 and before

January 6, 2008, an individual to whom benefits are payable with respect to any

week shall, in addition to those benefits, be paid, with respect to such week, as

follows: in the case of an individual with a nonworking spouse, 9% of his or her

prior average weekly wage, rounded (if not already a multiple of one dollar) to the

next higher dollar, provided, that the total amount payable to the individual with

respect to a week shall not exceed 57% of the statewide average weekly wage,

rounded (if not already a multiple of one dollar) to the next higher dollar; and in the

case of an individual with a dependent child or dependent children, 17.2% of his or

her prior average weekly wage, rounded (if not already a multiple of one dollar) to

the next higher dollar, provided that the total amount payable to the individual with

respect to a week shall not exceed 65.2% of the statewide average weekly wage,

rounded (if not already a multiple of one dollar) to the next higher dollar. 820 ILCS

405/401.

WARNING: The numbers and percentages used in the UIA change almost annually. Please check

the statute to obtain the current figures.

2. [5.167] Public Employer Obligations

The Unemployment Insurance Act is designed so that benefits are paid for through employer

contributions. All employers, public and private, are subject to the UIA. Unlike private sector

employers, however, public employers are not required to pay taxes as provided under the Federal

Unemployment Tax Act (FUTA), 26 U.S.C. §3301, et seq. In addition, a public employer has the

option of paying the Illinois unemployment insurance tax or instead agreeing to reimburse the

state for all benefits paid to its former employees as they become due. 820 ILCS 405/1405.

An employer opting to pay the insurance tax will be charged an amount based on a

calculation taking into account unemployment claims paid to its former employees. 820 ILCS

405/1506.1. Employers opting to “pay as they go” will be liable for 100 percent of all regular,

dependent, and extended benefits paid out (with exceptions, of course) to all former employees.

820 ILCS 405/1405.

3. [5.168] Employee Eligibility

As provided by the Unemployment Insurance Act, employees are eligible to receive

unemployment compensation benefits if they (a) have registered for work at an unemployment

insurance office and report back as required; (b) have made a claim for benefits; (c) are able to

work, available to work, and are actively seeking work; (d) have been unemployed for a waiting

period of one week; and (e) have been paid at least $1,600 in covered employment during their

base period (the first four of the last five full calendar quarters before applying for

unemployment), with at least $440 earned outside the quarter in which the wages paid to them

were the highest. 820 ILCS 405/500.

Employees will be ineligible for benefits, however, if, among other things, they (a)

voluntarily leave; (b) were discharged for work-connected felonies or thefts that have been

admitted to or later were determined to have committed by a court or for misconduct defined as

“the deliberate and willful violation of a reasonable rule or policy,” provided the violation harmed

the employer or employees or was repeated despite warnings; (c) refused suitable employment;

(d) are unemployed due to certain labor disputes with their employer; or (e) received workers’

compensation benefits during the same period, in which case their benefits will be reduced

accordingly. 820 ILCS 405/601 – 405/606. There are several other methods of disqualification,

including the receipt of vacation pay or retirement pay during the period of unemployment. 820

ILCS 405/610, 405/611. Wrongfully paid benefits may be recouped; persons who obtain benefits

through fraud also will be ineligible for further benefits for a specified period of time. 820 ILCS

405/900, 405/901.

4. [5.169] Claim Process

Employers have the right to protest claims filed against them. An employer has ten days to

protest a claim after receiving a “Notice of Claim to Last Employing Unit and Last Employer or

Other Interested Party.” 56 Ill.Admin. Code §2720.130. A claims adjudicator will then render a

determination on eligibility. 56 Ill.Admin. Code §2720.140.

Under the Unemployment Insurance Act, the employer has 30 calendar days to file an appeal

with a referee (but has one year to ask the adjudicator to reconsider the determination). 820 ILCS

405/703, 405/800. The referee will hold a hearing and render a decision. 820 ILCS 405/801. This

decision also can be appealed within 30 days to the board of review, which can affirm, modify,

set aside, or remand the referee’s decision within 120 days of the appeal. If the board of review

does not render a decision within 120 days, the appealing party may apply for a notice to sue in

court. 820 ILCS 405/803. Decisions of the board (or “nondecisions” if no decision is made within

14 days after the party files for a notice to sue) may be appealed to the courts.

5. [5.170] New Employee Reporting Requirement

As provided under the Unemployment Insurance Act, the Director of the Department of

Employment Security is to establish the Illinois Directory of New Hires. 820 ILCS 405/1801.1.

Employers must notify the Illinois Department of Employment Security (IDES) of each new

employee’s name, address, and social security number. The employer must also notify IDES of

the employer’s name, address, and federal employer identification number. Failure of employers

to comply will subject them to a $15 penalty per person not reported. 820 ILCS 405/1801.1.

G. Continuation of Insurance Benefits

1. [5.171] Federal Law: Consolidated Omnibus Budget Reconciliation Act of 1985

The Consolidated Omnibus Budget Reconciliation Act of 1985 requires employers (including

state and local governmental employers) of 20 or more employees to offer “qualified

beneficiaries” (employees and, in some cases, their spouses, and dependent children) who would

lose coverage under the employer’s group health care plan due to certain “qualifying events” the

opportunity to purchase continued coverage at the employer’s group rate costs for specified

periods ranging from 18 to 36 months. 42 U.S.C. §§300bb-1 through 300bb-8. An employer is

required to notify new employees and their spouses who participate in its health plans of their

COBRA rights. 42 U.S.C. §300bb-6. COBRA applies to medical, dental, vision, and prescription

drug coverage under group health plans.

COBRA lists five “qualifying events” in which continuing coverage must be offered to

qualified beneficiaries facing the loss of insurance coverage:

a. the employee’s death;

b. the employee’s termination (unless for gross misconduct) or reduction of hours of

employment;

c. the divorce or legal separation of the covered employee from his or her spouse;

d. the covered employee’s becoming eligible for Medicare; or

e. the beneficiary’s loss of dependent child status under the plan, such as due to age,

marriage, or the completion of schooling.

The employees themselves, however, are entitled to continue coverage as “qualified

beneficiaries” only if they are terminated or have their hours reduced. 42 U.S.C. §300bb-3.

Within 30 days after an employee’s death, termination, cut in hours, or eligibility for

Medicare, the employer must notify the health plan’s administrator in writing. 42 U.S.C. §300bb-

6. If the qualifying event is a divorce, legal separation, or loss of dependent status, however, the

spouse or dependent child must notify the plan administrator within 60 days from the date of the

qualifying event. The plan administrator then has 14 days to inform the affected plan

beneficiaries of their rights to elect to continue coverage.

Employees or their beneficiaries have at least 60 days in which to decide whether to continue

their health coverage. 42 U.S.C. §300bb-5. The qualified beneficiaries who elect to continue their

health coverage are entitled to whatever coverage they would have had under the plan but for the

qualifying event. 42 U.S.C. §300bb-2. For example, if coverage is modified under the plan for

any group of similarly situated employees or beneficiaries, it similarly must be changed for the

employees and beneficiaries continuing their coverage under COBRA. In addition, individuals

under COBRA have the same open enrollment rights to add or delete dependents and change

coverage as do similarly situated individuals not under COBRA. Of course, the employee and his

or her beneficiaries may be required to pay for the continued coverage. For example, if the plan is

insured, the employer may charge up to 102 percent of its premium costs (and 150 percent of

costs for months 19 to 29 for a disabled employee). 42 U.S.C. §§300bb-2, 300bb-4. COBRA

requires timely payment of these costs, or the delinquent individual will forfeit continued

coverage rights.

The length of continued coverage will vary depending on the qualifying event. For a

termination or reduction of employment, COBRA does not require more than 18 months of

continued coverage. For all other qualifying events, COBRA requires 36 months of continued

coverage. That duration may be measured from the date of the qualifying event even if coverage

otherwise would end sometime after the qualifying event. The health plan should specify whether

a longer period of continued coverage than is required by COBRA will be offered.

There are exceptions to the 18-month and 36-month periods of continued coverage. First, if

another qualifying event (such as divorce or the employee’s death) occurs while the beneficiaries

are on an 18-month period of COBRA coverage, then they may elect to extend their coverage to a

total of 36 months as a result of that second qualifying event. Second, if a person is qualified as

disabled under the Social Security Act, 42 U.S.C. §301, et seq., at the time of his or her

termination or reduction of employment and the person promptly notifies the plan administrator

of that disability determination in writing and before the 18-month COBRA coverage expires,

then coverage may be extended an additional 11 months (for a total of 29 months) for that

disabled person but at a 150 percent premium cost for those additional months. Third, continued

coverage will stop short of 18, 29, or 36 months when certain events occur, such as when the

employer ends its health benefits to employees or when the qualified beneficiary (a) fails to pay a

premium payment within the statutory grace period, (b) becomes eligible for Medicare, (c)

becomes covered under another group plan that does not contain a preexisting condition

limitation that applied to that individual, or (d) is no longer disabled. 42 U.S.C. §300bb-2.

COBRA continuation coverage will also terminate early if the qualified beneficiary becomes

covered under another group health plan that contains a preexisting condition exclusion that does

not apply to the former employee because of the Health Insurance Portability and Accountability

Act of 1996 (HIPAA), Pub.L. No. 104-191, 110 Stat. 1936. See §5.172 below. Fourth, if a former

employee or covered dependent is determined by the Social Security Administration to have been

disabled at any time during the first 60 days of COBRA continuation coverage, the disabled

person and the nondisabled family members of the disabled person who are entitled to COBRA

continuation coverage may extend coverage an additional 11 months for up to a total of 29

months from the date of the qualifying event.

2. [5.172] Health Insurance Portability and Accountability Act of 1996

The Health Insurance Portability and Accountability Act of 1996 substantially changed an

employer’s obligations with respect to employer-sponsored group health plans. Among the more

significant changes, HIPAA mandates that preexisting conditions exclusions cannot apply to

employees who have the required prior health coverage and who later change jobs and enroll in a

new employer’s health plan. 29 U.S.C. §1181. A group health plan must limit any preexisting

condition exclusion with respect to the exclusion’s overall duration (generally, not more than

twelve months), the look-back period or prior treatment before enrollment (generally, the sixmonth

period ending on the enrollment date), and application to certain individuals or conditions.

HIPAA defines “group health plan” as any plan maintained by an employer with two or more

participants and includes governmental plans. However, nonfederal governmental plans may elect

to be excluded, but not for portability purposes. 29 U.S.C. §1191.

Under HIPAA, group health plans must reduce the overall duration of any preexisting

condition exclusions by the length of an individual’s aggregate period of prior “creditable

coverage,” which includes prior individual insurance or group health plan coverage, including

coverage under a public health plan. HIPAA also generally entitles all employer groups and

individuals that have purchased health insurance coverage, and employers whose employees are

covered under a multi-employer plan, to renew their coverage as long as they have paid their

premiums. 29 U.S.C. §1183. In general, HIPAA’s requirements apply to group health plans for

plan years beginning on or after July 1, 1997. A group health plan maintained under a collective

bargaining agreement, however, will be subject to HIPAA on the later of (a) the date on which

the last collective bargaining agreement relating to the plan terminates after August 21, 1996, or

(b) July 1, 1997.

HIPAA provides that a child born to or placed for adoption with a covered employee during a

period of continuation coverage is a qualified beneficiary and generally is eligible to be enrolled

immediately for COBRA continuation coverage under the plan. HIPAA also provides tax

incentives for individuals to purchase long-term care insurance and mandates a four-year pilot

program for small employers to test the viability of medical savings accounts (similar to

individual retirement accounts). Illinois has adopted its own HIPAA, 215 ILCS 97/1, et seq.

3. [5.173] State Insurance Code

The Illinois Insurance Code, 215 ILCS 5/1, et seq., requires employers to offer employees

and their dependents the opportunity to purchase continued group health insurance in certain

instances. These statutes, however, are generally narrower in scope, less generous than the

Consolidated Omnibus Budget Reconciliation Act of 1985, and differ with COBRA in what is

covered. Basically, five sections of the Insurance Code apply: one for continuing spousal and

dependent benefits in case of death, one for continuation of benefits in case of discharge, and

sections covering firefighters, police officers, and municipal employees who retire or are

disabled. Considering the differences, it may be safer to follow the separate procedures of both

the federal and state provisions.