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 w