proposed legislation on clarifying the intent of open ... · proposed legislation on clarifying the...
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Proposed Legislation onClarifying the intent of Open Space Assessment
as Proposed by the County Assessment Officers Association of Illinois
1 AN ACT concerning revenue.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 "Section 5. The Property Tax Code is amended by changing
5 Section 10-155 as follows:
6 (35 ILCS 200/10-155)
7 Sec. 10-155. Open space land; valuation. In all counties,
8 in addition to valuation as otherwise permitted by law, land
9 which is used for open space purposes and has been so used for
10 the 3 years immediately preceding the year in which the
11 assessment is made, upon application under Section 10-160, shall
12 be valued on the basis of its fair cash value, estimated at the
13 price it would bring at a fair, voluntary sale for use by the
14 buyer for open space purposes.
15 Land is considered used for open space purposes if it is
16 more than 10 acres in area and:
Proposed Legislation on Clarifying the Intent of Open Space Assessment Page 1County Assessment Officers Association of Illinois
S
I (a) is actually and exclusively used for maintaining
2 or enhancing natural or scenic resources,
3 (b) protects air or streams or water supplies,
4 (c) promotes conservation of soil, wetlands, beaches,
5 or marshes, including ground cover or planted perennial
6 grasses, trees and shrubs and other natural perennial
7 growth, and including any body of water, whether man-made
8 or natural,
9 (d) conserves landscaped areas, such as public or
10 private golf courses,
11 (e) enhances the value to the public of abutting or
12 neighboring parks, forests, wildlife preserves, nature
13 reservations, sanctuaries, or other open spaces, or
14 (f) preserves historic sites.
15 Land is not considered used for open space purposes if it
16 is used primarily for residential purposes, or if it is improved
17 with hotels or lodging facilities, club houses, banquet
18 facilities, tennis or other courts, swimming pools, commercial
19 or industrial facilities, retail shops, or land and parking
20 areas serving any of those improvements. Such land shall be
21 valued at fair cash value in accordance with Section 9-145, or
Proposed Legislation on Clarifying the Intent of Open Space Assessment Page 2County Assessment Officers Association of Illinois
1 in accordance with a classification ordinance adopted pursuant
2 to Section 9-150 of the Property Tax Code, and shall not be
3 valued as open space land. The General Assembly finds and
4 declares that this amendatory Act of the 97th General Assembly
S is a clarification of existing law and is an indication of its
6 previous intent in enacting and amending this Section.
7 If the land is improved with a water-retention dam that is
8 operated primarily for commercial purposes, the water-retention
9 dam is not considered to be used for open space purposes despite
10 the fact that any resulting man-made lake may be considered to
11 be used for open space purposes under this Section.
12 (Source: P.A. 95-70, eff. 1-1-08.)
Proposed Legislation on Clarifying the Intent of Open Space Assessment Page 3County Assessment Officers Association of Illinois
a-
Benefits
• After a ruling by the Property Tax Appeal Board, all buildings on golf course properties thatare assessed as open space are assessed at $0; application of this interpretation of thedecision will result in millions of dollars in tax savings for such golf courses, includingproperty tax reductions in excess of 90% for large private country clubs with extensiveclubhouse and banquet facilities.
• As a result of this ruling, all other properties within the same taxing districts as thosecountry clubs will see increased property tax bills, as the millions of tax savings gained bygolf course properties will be paid by other taxpayers.
This statutory change is intended to clarify that land with certain types improvements willnot qualify for open space valuation, thus the improvements can be assessed.
• This bill would declare that it was not the intent of the general assembly to provide golfcourses with such a significant tax break at the expense of other taxpayers.
For More Information, Contact:
• Tim Bramlet, Legislative Agent .............................. (217) 741-4496County Assessment Officers Association of Illinois
• Marty Paulson, Lake County CCAO ........................ (847) 377-2191Open Space Legislation Coordinator for the CAOA
• Mark D. Armstrong, Kane County CCAO.............................................................(630) 208-3818Chairman of the Legislative and Policy Committee of the CAOA
• Cindi Lotz, Fayette County CCAO ........................................................................(618) 283-5020President of the County Assessment Officers Association of Illinois
Proposed Legislation on Clarifying the Intent of Open Space Assessment Page 4County Assessment Officers Association of Illinois
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Proposed Legislation onRevising Board of Review Partisan Requirements
as Proposed by the County Assessment Officers Association of Illinois
1 AN ACT concerning revenue.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Property Tax Code is amended by changing
5 Section 6-15 and Section 6-34 as follows:
6 (35 ILCS 200/6-15)
7 Sec. 6-15. Political makeup and compensation. No more than
8 2 members of a Pèe board of review appointed under Section 6-5
9 shall be eonoiot of 2 mcmbcro affiliated with the same political
10 party polling thc highest vote for any county offioc in thc
11 county, and onc member of the party polling the occond highest
12 vote for the came county office at the loot general election
13 prior to any appointment made under this Section. Each member of
14 the board of review shall receive an annual salary to be fixed
15 by the county board and paid out of the county treasury.
16 (Source: P.A. 86-905; 87-1189; 88-455.)
17 (35 ILCS 200/6-34)
Proposed Legislation on Revising Board of Review Partisan Requirements Page 1County Assessment Officers Association of Illinois
I
1 Sec. 6-34. Political makeup. If the board of county
2 commissioners appoints a board of review as prescribed in
3 Section 6-30, no more than 2 members of the board of review
4 shall lee consist of 2 members affiliated with the same political
5 party _polling the highest vote for any county office in thc
6 county and one member of the party polling the second highest
7 vote for the sane county office at the last general election.
8 (Source: P.A. 90-552, eff. 1-1-99.)
9 Section 99. Effective date. This Act takes effect January
10 1, 2014.
Proposed Legislation on Revising Board of Review Partisan Requirements Page 2County Assessment Officers Association of Illinois
Benefits
• Currently, appointed boards of review in both commission and non-commission countieshave a partisan requirement. Using the highest vote-getter in the most recent contestedpartisan county election, two board members must be appointed from the political party ofsaid highest vote getter, and one member must be appointed from the second highest votegetter in the same race. (See Attorney General Opinion 91-020, attached, for analysis ofthis issue)
• In a two-party system, this will mean that that the three board of review will be from thosetwo parties. However, it does not permit otherwise qualified non-partisan individuals frombeing eligible for appointment to the board of review.
• Where there are more than two parties, the statute appears to have consequences thatwere not intended. For instance, in a recent election in a large suburban county, one of thetwo major parties did not nominate a candidate, but a third party did so. Eventually, thethird party candidate was removed from the ballot by electoral board action. However, hadthis not taken place and had the major-party candidate been the highest vote-getter in thecounty, then the statute as it currently exists would have made it unlawful to appointsomeone from one of those majority parties to the Board of Review.
• This statutory change is intended to protect taxpayers by no longer excluding thoseaffiliated with certain political parties or those with no partisan affiliation.
For More Information, Contact:
Tim Bramlet, Legislative AgentCounty Assessment Officers Association of Illinois
. Mark D. Armstrong, Kane County CCAO .............................Chairman of the Legislative and Policy Committee of the CAOA
• Cindi Lotz, Fayette County CCAO ...........................................................President of the County Assessment Officers Association of Illinois
(217) 741-4496
(630) 208-3818
(618) 283-5020
Proposed Legislation on Revising Board of Review Partisan Requirements Page 3County Assessment Officers Association of Illinois
FILE NO.
COUNTIES:DeterininatAffiliaticBoard of I
HonorableGreene CotGreene CotCarrolltor
Dear Mr. C
section 8
120, par.
regarding
tat. 1989, ch.
ROLAND W. BIJRRISATTORNEY GENERALSTATE OF ILLINOIS
April 25, 1991
"Ci * The board of review shall at alltimes consist of 2 members affiliated with thepolitical party polling the highest vote for anycounty office in the county, and one member ofthe party polling the second highest vote for thesame county office in the county at the lastgeneral election in the county prior to the timeany appointment is made by virtue of this section.
I,
500 South Second Street, Springfield, Illinois 62706 217-782-1090 • TDD 217-785-2771 • FAX 217-782-7046100 West Randolph Street, Chicago, Illinois 60601 312-814-3000 TDD 312-814-7123 • FAX 312-814-3806
Honorable Norbert Goetten -2-
Specifically, you ask whether, in determining the political
affiliation of the members of the board of review, the vote in
either the-election of a resident circuit-judge or an at-large
election for four county board seats may be considered. For
the reasons hereinafter stated, it is my opinion that the
composition of the board of review cannot be based upon either
a judicial or an at-large county board race.
According to the information which you have furnished,
among the officers elected at the November 6, 1990, general
election in Greene County were: county clerk, county
treasurer, county sheriff, four county board members and a
resident circuit judge. The highest vote total was recorded
for the unopposed candidate for the office of county
treasurer. In opinion 3-1425, issued April 13, 1979 (1979 Ill.
Att'y. Gen. op. 46), however, Attorney General Scott advised
that because one member of the board of review must be
affiliated with the political party polling the Second highest
vote for the same office as the party polling the highest vote,
the political affiliation of board of review members must
neccessarily be based upon a contested election. Therefore,
although the unopposed candidate for treasurer polled the
highest number of votes, that race cannot be considered in
determining the board of review membership.
The next highest vote in a two-candidate race for a
single office in the county was polled by a candidate for
Honorable Norbert Goetten -3-
resident circuit judge. You question whether this was an
election for a "county office," for purposes of section 8 of
the Revenue Act of 1939.
Article VII, sections 3 and 4 of the 1970 Constitution
(Ill. Const. 1970, art. VII, secs. 3, 4) provide for the
selection of county board members and, in each county, a
sheriff, county clerk, treasurer, coroner, recorder, assessor,
auditor "and such other officers as provided by law or by
county ordinance." These are county offices and comprise the
group of officers responsible for governing the county. In
contrast, resident circuit judges, even though elected within
each county, are elected as officers in the judicial branch of
State government pursuant to Article VI of the constitution.
(Ill. Const. 1970, art. VI, sec. 7,12.) There is only one
circuit court in each judicial circuit, and a resident circuit
judge serves the entire circuit, not just the county from which
he is elected. (Ill. Const. 1970, art. VI, sec. 7(b).)
Further, each circuit judge is subject to assignment by the
Supreme Court to any court in the State. (Ill. Const. 1970,
art. VI, sec. 15.) Based upon these provisions, it is my
opinion that the office of resident circuit judge is a State,
not a county, office. consequently, the election of a resident
circuit judge may not be considered in determining the
political affiliation of board of review members.
In the November 6, 1990, general election in Greene
County, four county board seats were filled at-large. Five
Honorable Norbert Goetten -4-.
candidates ran for four seats. A candidate affiliated with one
major party polled 4575 votes, and four other candidates, all
of whom were affiliated with the other major party, polled
4564, 4158, 3357, and 3198, respectively. The party with which
the single candidate was affiliated claims to have polled the
highest number of votes for a "county office", for purposes of
section 8 of the Revenue Act of 1939. It is my opinion,
however, that this race also cannot be used as the basis for
determining the political affiliation of the board of review.
Section 8 of the Revenue Act of 1939 requires that 2
members of the board of review be affiliated with the party
polling the highest vote for a county office, and that one
member be affiliated with the party polling the second highest
vote for the same office. In this instance, the candidate
receiving the highest vote total cannot be said to have been
running for the same office as the other four candidates. All
five were running for election to any one of four offices, and
four of the five were, in fact, elected to four different
offices. Since both of the candidates who polled the highest
vote totals were elected to separate offices, they cannot be
said to have stood for election to the same office.
Implicit in the language of section 8 is the
requirement that the political affiliation of the members of
the board of review be based upon a race for a single county
office for which there are two or more candidates running.
Honorable Norbert Goetten -5-
Several candidates running for multiple offices are not running
for the same office. Consequently, it is impossible for one
party to poll the highest vote and another the second highest
vote for the same office, in those circumstances, just as such
a result is impossible where one candidate runs unopposed for
an office. Therefore, it is my opinion that an at-large
election for multiple county board seats cannot be considered
in effectuating the provisions of section 8 of the Revenue Act
of 1939, as they relate to the composition of the board of
review.
Respectfully yours,
ROLM4D W. BURRISATTORNEY GENERAL
Proposed Legislation onEliminating County Board Member Conflicts of Interest
1 AN ACT concerning revenue.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Property Tax Code is amended by changing
5 Section 6-5 as follows:
6 (35 rLCS 200/6-5)
7 Sec. 6-5. Appointed boards of review. In counties under
8 township organization with less than 3,000,000 inhabitants in
9 which no board of review is elected under Section 6-35, there
10 shall be an appointed board of review to review the assessments
11 made by the supervisor of assessments. When there is no existing
12 appointed board of review, the chairman of the county board
13 shall appoint, with approval of the county board, 3 citizens of
14 the county to comprise the board of review for that county, 2 to
15 serve for a one year term commencing on the following June 1,
16 and one to serve for a 2 year term commencing on the same date.
17 When an appointed board of review already exists, successors
18 shall be appointed and qualified to serve for terms of 2 years
I
Proposed Legislation on Eliminating County Board Member Conflicts of Interest Page 1
1 commencing on June 1 of the year of appointment and until their
2 successors are appointed and qualified. Vacancies shall be
3 filled in like manner as original appointments, for the balance
4 of the unexpired term. Members of the county board a-y are not
5 eligible to be appointed to the board of review after January 1,
6 2014, except that sitting county board members who were
7 appointed prior to January 1, 2014 may continue to serve and be
8 reappointed to a county board of review. A member of the board
9 of review may be reappointed. No person may serve on the board
10 of review who is not qualified by experience and training in
11 property appraisal and property tax administration.
12 (Source: P.A. 86-905; 87-1189; 88-455.)
13 Section 99. Effective date. This Act takes effect upon
14 becoming law.
Proposed Legislation on Eliminating County Board Member Conflicts of Interest Page 2
Benefits
• Local government officials are generally ineligible to be appointed to a county board ofreview in non-commission counties due to an inherent conflict of interest (See AttorneyGeneral Opinion S-1459, attached, for analysis of this issue). The principal reason for theincompatibility of these offices is that local government officials who vote on property taxlevies (and thus have an interest in those tax levies) cannot be disinterested third parties inruling on assessment complaints.
However, members of a county board in a non-commission county are eligible forappointment to a county board of review, as specifically provided by statute (See AttorneyGeneral Opinion 5-877, attached, for analysis of this issue). The practice of having countyboard members automatically serve on a board of review was common prior to theadoption of the 1970 constitution. While it is increasingly uncommon, there still exists thepractice of granting county board members seats on the board of review, even thoughcounty board members also vote on one or more tax levies for the very same propertiesupon which they would be called to make a ruling.
This statutory change would provide taxpayer the same protection from conflicts ofinterest relating to county board members that currently exists for all other taxing bodies.
• Recognizing that existing dual office holders may have also amassed years of knowledgethat has value to a Board of Review, the legislation provides for a "grandfather clause" thatpermits existing dual office holders to continue, but prohibits new ones.
Proposed Legislation on Eliminating County Board Member Conflictsof Interest Page 3
/'4)•
WILUAM J. SCOTTATTORNEY GENERAL
STATE OF ILLINOISSPRINGFIELD
I0•
August 20, 1979
This re s yoti'u's4ter requesting an
opinion as toUeso n is prohibited from holding
the offices ofee and camber of the board.of
review simültaa situation is prohibited only
when
oinimt
s involved are incompatible. For the
reasostated, it is my opinion that the
offictrustee and member of the board of
revie•iblé.
Incompatibility betneen offices exists where
the constitution, or a statute, specifically prohibits
the occupant of either of those offices from holding the
other or where the duties of either office are such that
Honorable Kelly D. Long - 2.
the holder of one cannot, in every instance, Properly,fully and faithfully perform all the duties of the other
Office . (People ex rd. Heyer v. Haas (1908), 145 Ill.
App. 283.) I can find no Constitutional or statutory
Prohibition on a township trustee also being a member
of the board of review. The duties of a board of town
trustees are generally set forth in article xiii of
"AN ACT to revise the law in relation to township
organization" (Ill. Rev. Stat. 1977, ch. 139, par.
117 etThe duties of a board of review are set
forth in sections ios, 108a and lOSb of the Revenue Act
of 1939. (Ill. Rev. Stat. 1977, ch. 120, pars. 589,
589.1, 589.2.) In examining the duties of these two offices,
there is a duty which a member of the board of review has
which could prevent the proper performance of his duties
as a township trustee. Section 108b of the Revenue Act of
1939 (Ill. Rev. Stat. 1977, ch. 120, par. 589.2) requires
the board of review to review any assessment made by any
local assessment officer or officers upon written complaint
made by any taxing body and filed with the board within 20
calendar days after the assessment books are delivered to
the board. By operation of this statute, a.memberof the
board of review would have to review an assessment of which
he, as a member of the township board of trustees, a taxingbody, complained
Honorable Kelly D. Long - 3.
Because of this duty, a person could not properly,
fully and faithfully perform his duties as.. both a township
trustee and a member of the board of review. I am there-
fore of the opinion that the offices of township trustee
and member of the board of review are incompatible.
Very truly yours,
ATTORNEY GENERAL
FILE NO
OFFICESCountyAppointwise ToibilityWith tbForestof RevS
RonorabStAte'sLake ccCountyWaukega
Dear Mr
WILLIAM J. EconATTORNEY GENERALSTATE OF ILLINOIS
500 SOUTH SECOND STREETSPRINGFIELD
82708
March 17, 1975
Statutes, 1971, states:
I f 1. No member of a county board, duringthe term of office for which he is elected,may be appointed too accept or hold any officeother than chairman of the county board ormember of the regional planning commission byappointment or election of the board of which.he is a 'eer. Any such prohibited appointmentor election is void. .
Honorable Jack Hoogasian - 2.
several questions arise. Other sections inthe statutes authorize, appointment of countyboard meters to other positions, for sample:Forest Preserve commission, Chairman of theForest Preserve. Board of Review., TownshipSupervisors and the like.
It is to be noted that this specific sectionbecame effective August 17, 1971, and presumablyindicates the latest legislature and intent.The following questions, therefore, arises
1. May a county board member serve in. anyother capacity other than chairman of thecounty board or as ru.ntCy of the regionalplanning commission.
2. May a county 'board meter. during the termof office for which he is elected, resign andbe appointed by that county board to a positionhe otherwise could not serve it he continuedas a county board meter.
Responding to your second question first, I direct
your attention to the general rules of Statutory construction
applicable in Illinois. In construing statutes to give effect
to the intent of the General Assembly, courts will look to the
object and purpose to be subserved by the statute. (Application
of County Collector, 70 Ill. App. 2*3 180, 229 N.E. 3d 497.) The
primary object of statutory construction is to give effect to
the. legislative intent and courts will consider the reason or
necessity for an enactment, the contemporaneous conditions,
Honorable Jack floogasian - 3.
existing circumstances and the object sought to be achieved
by the statute. (Lincoln National Life Insurance Co. v.
McCarthy. 10 Iii. 24 469.) Section 1 of "AN ACT to prevent
fraudulent and corrupt practices in the making or accepting
of official appointments and contracts by public "
(Ill. Rev, stat. 1973. ch. 102. par. 1) was approved and
enacted by the General Assembly of the State of Illinois on
April 9. 1872, and has continued in effect with minor
modifications since that time. It may be assumed accordingly
that the section evidences a long continuing concern of the
Cannel Assembly far predating 1971 that honest and efficient
local governmental units be maintained. In construction of
statutes words should be given the meaning intended by the
lawmakers. (McCarthy, supra.) It is my opinion that the
language 'during the term of office for which he it elected".contained in the Act, prohibits appointment of a county board
meter who has resigned for the purpose of accepting a posit iat
to which he could not have been appointed if be had remained
a county board member. The statute, arnstrued in its entirety.
Honorable Jack Hoogasian - 4.
clearly proscribes use of the power of one public office
to gain access to another public office.
The test of whether a. statute is complete as enacted
by the General Aueeibly is whether it is sufficiently definite
to enable one reading it to know his rights and obligations
thereunder., (Arnolt v City of Highland Park, 52 Ill. 26 27.)
The language of section 1 of the Act is sufficiently definite
to,: give notice of its prohibitions and sanctions to both
county boards and individual board members. the phrase
"during the term of office for which he is elected" would
be superfluous if the General Assembly did not intend toinclude within the statute the situation which your question
suggests. The language reflects the concern of the Assembly
that public duties be discharged efficiently and impartially.
* public office is a public trust and the legislature may
impose on those to whom public office is entrusted such
conditions as it sees fit to secure efficient and impartial
discharge of public duties. (?sople v. Murray, 301 Iii. 349.)
Honorable Jack floogasian - S.
It is consequently my opinion that a county board meter
may not, during the term of office for which he is elected,
resign and be appointed by that county board to a position
to which he could not be appointed if he continued as S
county board member.
In your first question you have asked whether a
county board member may serve in any capacity other than
chairman of the county board or mnmher of the regional
planning commission. My answer to your question will be
limited to a discussion of the offices which you have
specifically mentioned in your letter, i.e.. forest preserve
ccmiesioner, president of the forest preserve commission,
meter of the board of review, and township supervisor.
Pint, with respect to the office of forest preserve
cónniesioner, in counties such as yours, where the boundaries
of the forest preserve district and the county are co-
extensive, the members of the county board automatically
exercise the powers and duties of the forest preserve
commissioners. This power extends specifically from section
3a of "AN ACT to provide for the creation and management
Roncrable Jack Bocgaaian - G.
of forest preserve districts" (Iii .. Rev. Stat. 1973. ch.
57 1/2 par. 3a) which provides in relevant part:
n. . * in case the boundaries of any suchdistrict are co-extensive with the boundariesof any county, city, village, incorporatedtown sanitary district., the corporate authoritiesof such county, city, village, incorporated townor sanitary district shall have and exercisethe powers and privileges and perform the dutiesand functions of the commissioners provided forheroin and in such case no commissioner shall beappointed for such district. * * *"
With respect to the president of the forest preserve
Qnnl5.jon, I have previously held in opinion S-GOB, August 20.
1973,. addressed to you, that in counties under one million
population where the boundaries of the forest preserve district
and the county are coextensive, the president of the forest
preserve commission is chosen by the forest preserve
commissioners. Of course, in your county, the forest preserve
commissioners are by the torte of statute the members of the
county board. However, it should be noted that in choosing
the president of the commission, the commissioners act as
officers of the forest preserve district, a municipal
corporation separate and distinct from the county, and do not
Honorable Jack Roogasian - 7.
act as county board members. . See • Peabody v. Forest Preserve
District, 320 Iii. 454. 462.
incompatibility between offices arises where the
Constitution, or a statute, specifically prohibits the
occupant of either of the offices from holding the other,
or where because of the duties of either office a conflict
of interest may arise, or where the duties of either office
are such that the holder of one cannot in every instance
properly and faithfully perform all the duties of the other.
People ex rel. Meyer v. .!fl' 145 Ill. App. 263.
The only statutory provision which might forbid a
county board enO,er from holding either of these two
positions is section 1 of 'SAN ACT to prevent fraudulent and
corrupt practices ' * (Ill. Rev. Stat. 1973, ch. 102, par.
1) which reads:
"S I. No member of a county board, duringthe term of office for which he is elected, maybe appointed to, accept or bold any office otherthan chairman of the county board or mentor ofthe regional planning commission by appointmentorelection of the board of which he is a member.Any such prohibited appointment or election isvoid. this Section shall not preclude a me"er
Ronorable Jack Roogas tan - S.
of the county board from being selected or fromserving as a member of the Counts personnel Ad-visory Board as provided in Section 12-17.2 of.The Illinois Public Aid code', approved April 11,1967, as amended, or as a member of a CountyExtension Board as provided in section 7 of the'County Cooperative Extension LV' • approved Au-gust 2. 1963, as amended. (emphasis added.)
It must be emphasized that section 1 prohibits a
county board meter from being appointed or elected to another
office (with the stated exceptions) where such appointment
or election is made. by the county board of which he is a
meter. The positions of forest preserve commissioner
and president of the forest preserve commission are not
filled by election or appointment by the county board. The
county board meters constitute the forest preserve commission
by legislative action without election or appointment by the
county board. Also, in the selection of the president of the
forest preserve commission, the county board members are not
performing a duty of the county board, but rather a duty of
the forest preserve caission.
With respect to the members of the board . of review,
however, a different type of problem is presented. Section 8
Ronorable Jack iloogasian — 9.
of the Revenue Act of 1939 (Iii. Rev, stat. 1973, ch. 120,
par. 489) provides:
"5 8. In counties under township organizationcontaining lees than 150,000 inhabitants, andin such counties which have by the lastpreceding federal census reached or exceeded apopulation of 150,000 but in which no board of re-view has heretofore been elected pursuant to Sec-tion 10 of this Act or authorized by referendumas provided in Section 10,, there shall be a boardof review to review the assessments male by thesupervisor of assessments, until June 1, 1914, orthe completion of the review of 1973 assessments,whichever is later, f ha rh)Lr1utn of the countyboard shall be ex-officio chairman of the board
of
review appointed before the effective date of thisamendatory Act of 1973 Spire on June 1. 1974,or upon ccspleticn of the review of 1973 assess-ments, whichever is ister. Before June 1. 1974,the chairman ofthe county board shall appoint,!kttthe approval of the county board. 3 citizens
one yeareto serve
.aN, .saaLat.a.w tIsw £JI. £flacaawLtheir respective successors shall be appointed andqualified in like manner to serve for terms of 2years commencing on June 1 of the year of ap-pointment. Vacancies on the board shall be filledin like manner as original appointments, for thebalance of the unexpired term. Members of the
Act prohibits the reappointment of a mntèr ofthe board of review." (emphasis added.)
Honorable Jack Roogasian - 10.
By the plain language of section 8, a county board
member may be appointed to the board of review by the county
board chairman with the advice and consent of the county board.
Thus, section 8 is inconsistent with the prohibition containedcontained
in section 1 of AN ACT to prevent fraudulent and corrupt
Practices •* *
Where there are two statutes, one dealing with a
subject in general and comprehensive terms • and the other
dealing with the same subject in a narrow and definite way.
the two statutes should be read together with a view toward
a consistent legislative policy. (Rosehifl cemetery V. Lauder,
406 Ill. 408) To the extent the two are in conflict, the
special statute will prevail over the general one. (Peop3.
exrel. Southfield Apartment Co. V. Jarecki, 408 111. 266.)
The result is reinforced where, as here, the special Act is
enacted at a later date. Bowes v. City of hicgo, 3 211. 24
175i see. Op. Atty. Gen. NP-866, February 4, 1975.
To the extent, therefore, that section 9of the
Revenue Act of 1939 provides that a county board member may
be appointed by the zounty board to serve as a member of the
Iionornble Jack Rotqn!ian
board of review, it stands as an exception to the general
rule stated in section 1 of "AN ACT to prevent fraudulent
and corrupt practicesi etc." consequently, it is my opinion
that a county board member may be appointed to the board of
review in counties with a population in excess of 150.000.
but less than one million.
To summarize, with respect to the positions of
member and president of the forest preserve commission,
section 1 of "AN AC? to prevent fraudulent and corrupt
practices * *" does not apply since those positions are not
elected or appointed by county board action. Concerning a
member of the board of review, the specific statute governing
that office which allows the county board member to fill
the office by appointment of the county board provides an
exception to the general, earlier enacted statute prohibiting
such dual office holding.
As there are specific statutory provisions which
allow a county board member to serve simultaneously in the
capacity of forest preserve commissioner, president of the
forest preserve commission or meter of the board of review,
Honorable Jack Hoogasian - 12.
it is not necessary to discuss the con law rule of
incompatibility. Since incompatibility is founded upon
principles of public policy, it is unquestionably within
the power of the legislature to provide that two offices
may be held by the same individual even though such offices
might be held to be incompatible at common law. Marini v.
Holster (N.J.). 218k. 2d 887; AhtOv. Weaver, (N.J.) 89 A.
2d 27: child. v. Moses. (S. Ct. N.Y.) 26 X.T.S. 2d 574. affirmed
38 N.Y.S. 24 704, 3 McQuillin Nnicipal corporations". 3rd
Ed. Revised, sec. 12.67, at 296.
I will next turn nV attention to the question
whether a county board member may also nerve in the capacity
of township supervisor. For over 100 years the powers of the
county board in counties under township organization have been
exercised by a board of supervisors composed of township super-
visors and assistant township supervisors. However, because of
the U.S. Supreme court decisions in Rake v. Carr, 369 U.s • 186,
and Avery v. Midland County, Texas, 390 U.S. 470, it became
necessary to correct the "one man, one vote imbalance on
the county board in counties under township organization. See,
Honorable Jack Hoogasian - 13.
Taylor v. county of at Clair, 51 XII. 21 367: People z tel.
;Oro V. The 3d. of Town Auditors, Rock Island township. 48
Ill. 2d 202..
Therefore, in keeping with those decisions, the
General Assembly enacted Public Acts 16-1650 through 76-1654,
and in particular 76-1652. effective October 2, 1969, which
amended section 23 of "AN ACT to revise the law in relation
to counties" (Xli. Rev. Stat. 1973, ch. 34. par. 302) to
read as follows:
05 23. The powers of the county as a body corporateor politic, shall be exercised by a county board, towits In counties Under township organization (ex-cept the county of Cook) • by the board of super-visors, which shall be composed of the town andeth other supervisors as are or may be electedpursuant to law, until the first Monday in May,1972, and, commencing with that date, shallcomposed of the county board members elected under'An Act relating to the composition and electionof county boards in certain counties'. enacted bythe 76th General Assembly; in the County of Cool,by a board of county caumissioners, pursuant tosection 7. article 10 of the constitution: incounties not under township organization, by theboard of county commissioner*."
In an opinion issued February 13, 1970 (S-130) • I
determined that the holding of the office of county board member
Honorable Jackilcogasian - 14.
elected from districts, or at large, in accordance with
Public Acts 76-1650 through 76-1653 was not incompatible
with holding the office of township supervisor. That opinion
was based upon the historical practice, unwavering through
100 years, that the legislature had at all times viewed
the duties and functions of the two offices as compatible.
Since there was a statutory history of interwoven functions
between the offices, and since it did not appear that the
legislature had amended section 23 in the belief that the
offices were incoatible, it was my view that legislative
judgment with respect to proper public policy should be left
to stand.
However, the cumulative effect of recent developnonts
in local governmental law which have taken place since the
issuance of 8-130, and in particular the adoption of a new
State Constitution, and the expansion of the powers and
functions of townships as a separate entity apart from the
powers and functions of counties, leads me to the, unavoidable
conclusion that the offices of township supervisor and county
board member must now be considered incompatible.
HonOrable Jack Hoogasian - 15..
Specifically, the chief area of movement in the
development of the law since 1.970, and the chief reason for
my concern with respect to possible conflicts of Interest.
involves the increased powers of crunties and townships to
contract with each other, and the expanded subjects and
purposes of such contracts. These additional powers
and overlapping functions assigned to townships and counties
of Scent date Invite a clash of obligations each unit
of government owes to its respective citizens which is far
greater in intensity and scope than that which existed under
the prior statutory scheme. My concern is focused on the
fact that a person acting in the dual capacity of county board
meter and township supervisor cannot fully nor fairly represent
the interests of both governments with respect to contracts
between such governmental units.
The corporate powers of the county are exercised by
the county board. (Xli. Rev. Stat. 1973, ch. 34. par. 302j
The county board is empowered to manage the county funds and
county business (Ill. Rev. Stat. 1973. oh. 34. par. 403), and
make on behalf of the county all contracts in relation to the
property and concerns of the county necessary to the exercise
S
Honorable Jack Boogasian - 1.6.
of its corporate powers. (Ill. Rev. Stat. 1973, ch. 34, par.
303.) A member of the county board, of course, takes part
in the formulation, acceptance and ratification of such
contracts.
Section 1 of article flit of "AN AC? to revise the
law in relation to township organization" (til. Rev. Stat.
1973, ch. 139, par. 117) provides in part:
-5 1. in each town the supervisor, town cler)tand three other members elected at large from thetown as provided in Section 1 of Article VII ofthis Act, shall constitute a board of auditorsuntil the 20th day after the 1973 township election.commencing with the .20th day after the 1973 election,the board of auditors shall consist of the supervisorand 4 other members elected at large from the town asprovided in Section 1 of Article VII of this Act,and the town clerk shall be the clerk of the boardof auditors but not a voting meter thereof. Eachperson on the board of auditors shall cast butone vote and the Supervisor shall be the chairmanof such board. * * * fl
Thus, the township supervisor is a voting sitar
of the board of auditors • and like the county board members
participates in the decision making process in the exercise
of the powers vested in the board of town auditors.
The, first important development which has bearing
Honorable Jack Hoogasian - 17.
on the present issue was the inclusion of the section on
Intergovernmental Cooperation within the Illinois Constitution
of 1970 (Xli. conet.. art. VII. sec. 30), and the enactment
of the Intergovernmental cooperation Act. (Ill. Rev. stat.1973. ch. 127. pars 741 et sea.) Section 2 of that Act
(Ill. Rev. Stat. 1973, ch. 127, par. 742) providess
Por the purpose of this Act:
(1) The term 'public agency' shall mean any unitof local government as defined in the IllinoisConstitution of 1970. * * * ft
Section 3 of the Intergovernmental Cooperation Act
(Ill. Rev. Stat. 1973, oh. 127 par. 743) provides:
Any power or powers, privileges or authority exer-cised or which may be exercised by a public agencyof this State may be exercised and enjoyed jointlywith any other public agency of this state andjointly with any public agency of any other stateor of the United States to the extent that laws ofsuch other state or of the United States do notprohibit joint exercise or enjoyment."
Section 5 of the same Act (Iii. Rev. Stat- 1973.-- -- -------WI27 •
par. 74S')rovits, -
Any one or more public agencies may contract withany one or more other public agencies to perform
Honorable Jack Soogasian - 10.
any governmental service, activity or undertakingwhich any of the public agencies entering into thecontract is authorized by law to perform, providedthat such contract shall be authorized by the gov-erning body of each party to the contract. Suchcontract shall not forth fully the purposes, powers,rights, objectives, and responsibilities of the con-tracting parties.
it is thus clear that a member of the county board, in
the exercise of the corporate authority of the county., would be
reqàired, as part of his Statutory duties, to vote upon contracts
with the township of which he is the supervisor. Whereas
prior to the adoption of the new constitution and the enactment
of the intergovernmental Cooperation Act, the power of the
county and township to enter into contracts was restricted
to statutorily specified objects and purposes in limited
areas, it is now clear that the two units of government nay
contract in extremely braid areas of activity not recognized
prior to 1970.
ft should be pointed out that the general corporatepowers of the township to make contracts are exercised by the
town electors at the town meeting. (Ill. Rev., stat. 1973., ch.
139. pars. 38 and 391 Greqq v, Bourbonnais, 327 Ill. App. 253.)
Honorable Jack Roogasian - 19.
Since township officers and boards have only those powers which
are conferred on them by statute, (Anders v Town of oavi1le,
4$ Ill. App. 2d 104) it would appear that the board of town
auditors do not have the power to enter into intergovernmental
agreements pursuant to the Intergovernmental Cooperation An.
However, in addition to the broad powers to enter Into
intergovernmental agreements granted to county boards and
thus to county board meters by the Intergovernmental
cooperation Act, recent imendraenta have also granted broad
powers directly to the board of town aAditors. Specifically.
Public Act 78-1189 amended section 20 of article XIII of "AN
ACT to revise the law in relation to township organization"
(Ill. Rev, stat. 1973. ch. 139. par. 126.10) and as amended
reads as follows:
"The board of town auditors may enter into anycooperative agreement or contract with any othergovernmental entity, not-for-profit corporation.or non-profit conrmity service association withrespect to the expenditure of township funds • orfunds lade available to the township under thefederal State and Local Fiscal Assistance Act of1972, to provide any of the following servicesto the residents of the townships
1. Ordinary and necessary maintenance and operatingexpenses for,
Honorable Jack lioogasian - 20.
(a)public safety (including law enforcement,fire protection, and building coda enforcement),(b)environmental protection (including sewagedisposal. sanitation 1 and pollution abatement),(a) public transportation. (including transitsystems and streets and roads)(d) health,(.e) recreation,(f) libraries, and(g) social services for the poor and aged; and
2. Ordinary and necessary capital expendituresauthorized by laws.
In order to be eligible to receive funds from thetownship under this Section any private not-for-profitcorporation or community service association shallhave been in existence at least one year prior to thereceipt of the funds."
It should be underscored that the above amendment
has granted the power to the board of town auditors to expend
not only Federal revenue sharing funds, but also its own
township funds in areas where previously the township had
no such power. (See, op. Atty. Gen. 8-693. February 7, 1974;
Op. Atty. Gen. 8-838, November 26, 1974.) Note also that the
board of town auditors are, in the first instance, authorized
to enter into the specified agreements, bypassing the town
electors.
Ronorable Jazt Roogasian - 21.
- So as to emphasize this new degree of overlapping
functions of counties and townships which has been brought
about by the combination of the enactments of the Intergovern-
mental Cooperation Act and Public Act 76-1189, the following
represents an example of the statutory functions of the county
which correspond to the new areas of township function setout in the amendment. With respect tot
(1) Public safety: The County Safety Council(ill. Rev, stat. 1973 cit. 34, pars. 5671et BOQ..)r contracts for police (Ill: Rev.gEr"j.973, cit. 34. par. 3601) and fire(Ill. Rev, stat. 1973. cit. 139g. par. 39.32)protection between counties and townships,eradication of dangerous and unsafe buildings(.111. Rev. stat. 1973, oh. 34, par. 429.8).
(2) Environmental protection, Sewage disposal,sanitation and waterworks systems (Ill. Rev.Stat. 1973, cit. 34, pars. 3101 at naq4tgarbage disposal, landfills (Ill. Rev. Stat.1973 ch. 34. pars. 413. 418); conservation(Ill.. Rev, Stat. 1973, oh. 34. par. 303 9th.12th and 14th): air contamination control (Xli.Rev. Stat. 1973, oh. 34, par. 421.2).
(3) Public trannortation, Acquisition andconstruction of parking facilities (Ill. Rev.Stat. 1973, cit. 34. par. 3302).
(4) Healths clinic, for alcoholics (Ill. Rev. Stat.1973. oh. 34. par. 429.17): hospitals (111. Rev.
Honorable Jack Hoogasian - 22.
Stat. 1973,.ch. 34, par. 303 7th)r ccunitymental health boards (Ill. Rev. Stat. 1973, cit.34, par. 419.2): care and treatment of tuber-culosis (Ill. Rev. Stat. 1973, cit. 34, pare.303 15th, 413, 5101 public healthdepartment. (Ill. Rev. Stat. 1973, cit. 34. par.419, 211. Rev. Stat4 1973. cit. 111 1/2. pars.20(c) etppg.)i au1ance services (tii. Rev.Stat. 1973, oh. 34, par. 419.1)1 creation ofboards of health (Xli. Rev, stat. 1973, cit.34, pars. 3001 et nad County HospitalGoverning ccimission (Ill. Rev. Stat. 1973,oh. 34, pars. 5011 et g., 5022p countysheltered care and nursing homes for infirmand chronically ill (Ill. Rev. Stat. 1973, oh.34, par. 416).
(5) Recreations park and recreational areas (111.Rev. :$tht 1973, ch. 34, par. 303 19th).
(6) Social Services for the poor and aged, communityaction agencies (Ill. Rev. Stat. 1973, cit.. 34,par.. 429.19)1 homes for the aged (Ill. Rev.Stat. 1973, cit. 34, pars. 3561
In all of the above area;, the county board and the
board of town auditors may enter into contracts with each
other to provide a particular Der vice to the people of the
township and the county. In addition, the contractual
scheme way allow more township funds, including Federal revenue
sharing funds, to be funneled to county projects, or vice
versa. Even in this regard it should be noted that the county
Honorable Jack Hoogasian - 23.
board has certain responsibilities with regard to coordinating
Federal and State aid. (Xli. Rev. Stat. 1973, ch. 34. par.
403-1) This responsibility of a county board member may
conflict with his responsibility as a township supervisor
to expend the revenue sharing funds the township receives
on its own.
The conflict of interest that will arise by the
simultaneous holding of the two offices is best explained
by examining the kinds of issues that an individual in both
offices must consider and vote upon. Chief among these are:
What services shall, be provided to people ofthe county and of the township?
Which governmental entity (county or township)should provide the service?
in what area of the county should the servicebe provided (e.g., location of buildings, parks,rocreflionál areas, streets and parking areas,landfills, etc.)?
With a view to the priority expenditures ofeach unit of government, the revenue of whichunit of government shall be used to providethe service?
What specific terms shall be contained in acontract between the county and township?
Honorable Jack Boogasian - 24.
In attempting to make decisions in each of the above
areas, the dual office holder cannot fairly represent the
conflicting interests of the two units of government. In
particular where the service is to be provided pursuant to a
contract entered into between the township and county, the
dual office is clearly representing, and attempting to
negotiate a contract most advantageous to, the interest of
both parties to the bargain.
In Meflonough V. Roach, 35 M.J. 153, 171 A. 2d 307.
the Supreme court. of New Jersey held that the offices of mayor
of a town and member of a Board of chosen Freeholders of
a county were incompatible. After discussing the various
statutory provisions which authorize the county to contract
with the town, the court stated at 171 23. 309*
"In all of these matters the terms upon whichthe project is to be pursued are left to theagreement of the public bodies. In the negotiationsthe county board is bound to consider the interestsof all of its citizens while the local governingbody has a like obligation to the citizenry of themunicipality alone. No man, much less a publicfiduciary, can sit on both sides of a bargainingtable. He cannot in one capacity pass with
Honorable Jack Roogasian - 25.
undivided loyalty upon proposals he advancesin his other role. * * *' (See, also, 2sitsatel. Xraemer V. Bags Cal. App., 130 P. 2d 243.)
In a previous opinion, involving an ana1ogou
situation, I held that an individual holding the offices of
alderman of a municipality and county board member could not
fully represent the interests of both governments when they are
contracting with each other. (1972 op. Atty. Gen. 45.) see.
also, UP-731, April 2, 1974, (county board member and director of
soil and water conservation district): UP-522, October 27,
1972, (county board meter and trustee of sanitary district):
UP-1342, February 17, 1965, (county board meirthor and city
council meter).
From the foregoing, I must conclude that the offices
of county board meter and township supervisor are incompatible.
It is well settled in Illinois that the acceptance
of an incompatible office by the incumbent of another office
will be regarded as a resignation or vacation of the first
office. (People v. aott, 261 Ill. App. 2611 People a ret.
Myers v. Haas, 145 Ill. App. 283.) Formal resignáticen, or
Hc.norabe Jack Roogasian a 26.
ouster by legal proceeding is not required Packinqham V.
Parker, 66 Iii. App. 96, 100.
I am, of course, mindful that presently there are
a large number of individuals throughout the state who
simultaneously hold' both the office of township supervisor
and county board member. In order to determine to what
extent the rule of automatic vacation of office applies
to these individuals, it is first necessary to determine at
what point intime the offices legally became incompatible.
As I have stated, my opinion that the offices must now be
considered incompatible is largely based upon the cumulative
development of the law with regard to townships and counties
since 1970. It Is not clear, and I need not decide herein,
whether at the time of the adoption of the Local Government
article in the Constitution of 1970, and the enactment of the
Intergovernmental Cooperation Act, a sufficient conflict
of interest arose between the offices so an to warrant a
holding of incompatibility. It is abundantly clear that the
coirbination of these developments, plus the recent enactment
Honorable Jack Hoogasian - 27.
of Public Act 78-1189 granting additional and broader powers
and functions to townships in areas which overlap the already
existing powers and functions of counties, requires the
conclusion that on the effective date of pubjf.c Act 7S-1189
(September 5, 1974) the offices were incompatible.
Statutes should be construed so as to give them
prospective operation only, unless legislative intention to
given them retrospective operation is clear and undoubtable.
(Quincy Training post, Inc. v. The Dept. of Revenue, 12 Iii.
App.. 3d 75 Xersten V. Voight, 164 Iii.. 314; Capone V. The
U.S.,. 51 F. 2d 609.) It has been held that if a person
holding an office is not ineligible for another office at
the time he is elected to the latter, he is not rendered
itelj.gtble by a subsequent statute which wakes the holding
of the other office grounds for ineligibility. The statute
must not be given the drastic effect of retroactively removing
an officer who was competent to servo in an office at the time
of the election or appointment under the previous statute.
II
Honorable Jack Hooqasian - 28.
Tacker v. The State (Miss.) 42 so. 796; accord, Baillie V.
The town of Medley (Fla.) 262 So. 24 693, 697; state v
Mucci, (Ohio) 225 U.Z4 2d 238, 241.
Therefore, it is my opinion that those who have
taken up the duties of both the offices of township super-
visor and county board member prior to septàter S., 194 ., may
retain both offices until either the duration of the term,
or actual vacation of either office. It is sty further opthlftz,
and I believe a court would hold., that any township sup.rviSr
who has assumed the office of county board member, or any
county board member who has assumed the office of township
supervisor, by election or appointment., after September 5,
1914, has ipso facto resigned and vacated the prior held
office.
Very truly yours,
ATTORNEY GENERAL
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