Legal & Legislative Notes
by Robert A. Stuart General Counsel

GOVERNOR MUST ACT ON ALL BILLS BY OCTOBER 1

Following his activities during State Fair Week in Springfield, the Governor has returned to his desk and is expediting his action upon all legislation passed during the Spring Session of the 1975 General Assembly. All Bills passed in the Spring Session must be acted on by the Governor by October 1. The Governor's action can take the following forms: "Approved"; "Vetoed"; "Vetoed in Part"; "Filed without Signature"; "Return to the General Assembly for further action" or "Appropriation Reduced."

Bills passed by the General Assembly prior to June 30 will become effective on October 1, unless a different effective date is specifically provided for in the Bill itself. Bills passed by the General Assembly after June 30 become effective on the following July 1st.

The following Bills of interest to Park Districts have been acted upon by the Governor as follows:

HOUSE BILLS:

H.B. 506 (Pub. Act 356)—GEO-KARIS—Authorizes park districts to enter into agreements with other governments on swimming pools or artificial ice skating rinks built by the park district with the proceeds of revenue bonds. Agreements give other governments right to use or operation of facility in exchange for payments. (Approved 8/7/75)

H.B. 689 (Pub. Act 478)—LEON, ET AL—Amends the Chicago Park Employees' Retirement Board Article of the Illinois Pension Code. Improves single sum death benefit and modifies related contribution requirements. Establishes minimum widows annuity to surviving spouse of employee with 20 or more years of service. Increases pensions of surviving spouses currently receiving annuities. Revises date for commencement of post-retirement increment for retirement annuities. Authorizes compensation of secretary of board. Provides that annuities of surviving spouses are to be charged to the annuity reserve. Effective immediately. (Approved 8/23/75)

H.B. 853 (Pub. Act 472)—MATIJEVICH—The Township Open Space Act. Permits townships, after referendum, to establish an open space program, acquire and hold land in a natural state and issue bonds for funding land acquisition. Excepts such bonds from the Limitation on Indebtedness Act. (Approved 8/21/75)

H.B. 854 (Pub. Act 473)—LUFT, ET AL—Amends Illinois Highway Code and State Bikeway Act. Grants Department of Transportation authority to acquire right-of-ways for bikeway purposes and to regulate the use of officially designated bikeways. (Approved 8/21/75)

H.B. 1278—HOFFMAN, ET AL—Appropriates $100,000 to the Department of Transportation, Division of Waterways to repair erosion damage on Addison Creek at the Stevenson Park lagoon in Bellwood in Cook County, Effective July 1, 1975. (Vetoed 7/13/75)

H.B. 1289 (Pub. Act 434)—HART—Provides that park districts may issue notes for purchase and payment of land for parks or boulevards; (presently only bonds may be issued for such purposes.) (Approved 8/14/75)

H.B. 1782—HOFFMAN, ET AL—Authorizes per diem for forest preserve district commissioners in exercise of duties by Board action. Increased from $25 to $36. (Approved 8/25/75)

H.B. 2574—PALMER—Same provisions as House Bill 2596. (Approved 8/25/75)

H.B. 2596—SATTERTHWAITE—Requires Park boards to appoint either 3 or 5 Judges of election for each polling place. (Approved 8/2S/75)

SENATE BILLS:

S.B. 69 (Pub. Act 467)—VADALABENE— Removes the ten-acre per park restriction from the Act authorizing townships to acquire lands for parks. (Approved 8/21/75)

S.B. 882—FAWELL—Includes securities of federal agencies among authorized investments under act concerning municipal funds. (Approved 8/25/75)

S.B. 916 (Pub. Act 348)—PHILIP—Extends the powers given park district police in certain districts to all park district police. (Approved 8/7/75)

S.B. 965—GLASS, ET AL—Allows park districts to reduce terms of commissioners from 6 years to 4 years. (Approved 8/25/75)

APPELLATE COURT DECISION MAY ADD ADDITIONAL DIMENSION TO ETHICS ACT

The Appellate Court for the Fourth Judicial District of the State of Illinois in an opinion filed August 14, 1975 in the case of Leonard Fuchs and Businessmen for the Public Interest, as representatives of and on behalf of all citizens, residents and taxpayers of the State of Illinois, Plaintiff-Appellants, vs. Arthur J. Bidwell, Clyde W. Choate, A. L. Cronin, Clyde Lee, John W. Lewis, Jr., Robert T. McLoskey, William J. Murphy, Barbara Peters, Executor of the Estate of Everett R. Peters, Deceased, and Lillian H. Pollack, Sole Legatee under the Will of William E. Pollack, deceased, Defendants-Appellees, has held, in effect, that a taxpayer may maintain a taxpayer's suit against public officials in order to establish a public trust and recover for the State of Illinois or its governmental subdivisions any profits which a public official may realize from assets acquired because of his position as a public official. The Plaintiff as a citizen, resident and taxpayer brought action for the benefit of the State following the refusal of the Attorney General to institute or prosecute such action. Plaintiff, Businessmen for the Public Interest, is described as an Illinois not-for-profit corporation concerned with the prevention of corruption and self dealing in public office. The trial court dismissed the complaint.

The Appellate Court reversed the judgment of the trial court and remanded the cause for further proceedings not inconsistent with its opinion. In its opinion the Court said:

". . . Since 1871, Illinois has had a statute defining the fiduciary nature of public office. (Ill. Rev. Stat. 1971, ch. 102, par. 3.) As amended in 1949, it provides:

'No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote.* * *Nor may any such officer take or receive, or offer to take or receive, either directly or indirectly, any money or other thing of value as a gift or bribe or means of influencing his vote or action in his official character.* * *' (Emphasis supplied)

". . . It has long been agreed that public officials occupy positions of public trust.

'A public office is a public trust and the holder thereof cannot use it directly or indirectly for a personal profit; and officers are not permitted to place themselves in a position in which personal interest may come into conflict with the duty which they owe to the public.' 46 C. J. 1037, OFFICERS, par. 308.

"Incident to said trust:

'They stand in a fiduciary relationship to the people by whom they have been elected and appointed to serve.'

". . . In Paepcke v. Public Building Commission, 46 Continued on Page 33

Illinois Parks and Recreation 8 September/October, 1975

LEGAL AND LEGISLATIVE . . .

Continued from Page 8

Ill. 2d 330, 263 N.E. 2d 1, it was held that a citizen and a taxpayer may bring an action for equity to enforce a trust in public land. In holding that it was not necessary that such plaintiff have a special damage or injury, the Supreme Court overruled Droste v. Kerner, 34 Ill. 2d 495, 217 N.E. 2d 73. The court said:

'If the 'public trust' doctrine is to have any meaning or vitality at all, the members of the public, at least taxpayers who are the beneficiaries of that trust, must have the right and standing to enforce it. To tell them that they must wait upon governmental action is often effectual denial of the right for all time.'

"We note and distinguish the somewhat comparable action to enjoin the disbursement of public monies as provided in Illinois Revised Statutes 1971, chapter 102, section 11, et seq. Such statute provides that the action may be maintained by either the people or the Attorney General, but that if the Attorney General does not proceed a taxpayer bringing the action must obtain leave of court. Such statutory limitation is provided to prevent the indiscriminate filing of suits which would delay the administration of public funds. (Strat-O-Seal Manufacturing Company v. Scott, 27 Ill. 2d 563, 190 N.E. 2d 312.) Such hazard does not appear in this action for a public trust and accounting."

Thus, from its opinion the Court held that a taxpayer may by action filed in the court establish a constructive trust in a public official for assets, and for the profits from such assets, acquired by such official because of his official position. Undoubtedly the ultimate effect of this decision will depend upon a further appeal or the action of the lower court upon remand.

By implication a taxpayer might well bring a proceeding against a park district trustee or commissioner to impose such a constructive trust thereby creating an additional question of ethics to that provided for in The Park District Code, Section 4-1a which provides as follows:

"No such member (of the governing board of any park district) shall be directly or indirectly in any way pecuniarily interested in any contract or work of any kind, whatever, connected with his park district."

Further developments in this case on appeal should be watched with interest by all public officials.

Illinois Parks and Recreation 33 September/October, 1975