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COMMENTS
THOMAS W. KELTY, Chief Counsel,
The Opinions Hit Parade/CATV Update It seems that in every field of endeavor, someone compiles and publishes a top ten for that field. Sports-writers vote on the top ten basketball teams; Publishers pick the top ten books; Nielsen rates the top ten TV shows; and the list goes on. As Chief Counsel to the League, certain questions are directed to me for advisory opinions. Some of these questions recur so frequently that they are noteworthy on the IML Opinions Hit Parade. This month's Article is dedicated to providing condensed versions of some of the more popular questions directed to me and providing some information about our Advisory Opinion Service. Among its services to member municipalities, IML provides an Advisory Opinion Service. Generally speaking, the advisory legal opinions will be rendered to a municipality based upon a written or telephone inquiry on any matter pertaining to the function of the local government. However, for a variety of reasons, these opinions can only be provided to attorneys for the municipality. This policy has been adopted by the League to insure that inquiries referred to the League do not conflict or detract from the function of the municipal attorney and to ensure that inquiries, when presented, are in sufficient detail to allow preparation of an accurate opinion. The condensed opinions contained in this Article are based upon multiple inquiries on similar subjects that have been received and opinions rendered. It is very important to note that these opinions cannot be relied upon in all factual circumstances. Minor variations in the facts can cause significantly different results in the opinion. The information contained in this Article is offered to provide general guidelines in areas that appear, from the number of inquiries, to be troublesome to municipalities across the State. Individual factual situations that bear similarity to the opinions in this Article should be thoroughly discussed with the municipal attorney to ensure that the principles in the opinions in this Article are legally similar to situations faced by the municipality. INCOMPATIBILITY OF OFFICES Often times concerned citizens in particular localities around the State are desirous of holding multiple offices either within the same governmental unit or on the governing boards of two different governmental units. This circumstance is particularly acute in smaller municipalities where the pool of potential officeholders is very limited. In addition, a 1985 amendment to the Illinois Revised Statutes authorizing political participation by employees and police officers of municipalities has further clouded the incompatibility issue and further opened the possibility of participation in the political process to employees of a municipality. However, the holding of two incompatible offices is generally considered to be prohibited. The Illinois case of Rogers v. Village of Tinley Park, 116 111. App. 3d, 437 has summed up the case law in Illinois on the subject of incompatibility and, although decided before the date of the amendment of the statute, addressed the incompatibility that exists between the holding of the office of police officer and acting as a council or board member of the employing municipality. In that case, the court cites the case of People v. Haas, 145 111. App. 283 which was decided in 1908 and set forth the basic doctrine of incompatibility in a single paragraph. "Incompatibility ... is present when the written law of the state specifically prohibits the occupant May 1987 / Illinois Municipal Review / Page 5 of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all of the duties of the other office. This incompatibility may arise from multiplicity of business in one office or the other, considerations of public policy or otherwise. (Citations omitted.) From these authorities, it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office."
In the Rogers case, the offices of police officer and Village Trustee were held to be incompatible and Rogers was held to have automatically resigned his position as a police officer upon acceptance of a position as a Village Trustee. In the opinions that this office has prepared, I have not found a single instance where dual office holding has been compatible. This is especially true where the geographical territory within the jurisdiction of the two governmental units overlaps. With the possibility of agreements between governmental units under the Intergovernmental Cooperation Article and other types of cooperative ventures or adversarial proceedings between governmental units, it is my opinion that it is nearly impossible for an individual to hold two governmental offices either within the municipality or among two governmental units without incompatibility arising. The sole exception to this general principle is where a statute may authorize also holding another office within the municipality. LIQUOR LICENSES Another area that presents a great deal of difficulty to municipalities is liquor licensing and in particular the question of when an interest by a municipal officer or employee is a prohibited interest. The Liquor Control Act regulates the sale, distribution and licensing of alcoholic liquors within the State of Illinois. Paragraph 120 of the Act provides that certain persons in business entities are ineligible for licensing by the State Liquor Control Commission or any Local Liquor Control Commission. Three subparagraphs of Paragraph 120 dispose of most questions regarding the eligibility of a municipal officer to hold an interest in a liquor license. Subparagraphs 10, 11 and 14 provide that no license of any kind issued by the State commission or any Local commission shall be issued to:
Page 6 / Illinois Municipal Review / May 1987
Subparagraph 14 clearly prohibits the issuance of any license issued by the State Liquor Control Commission or any Local Liquor Control Commission to an Alderman or Trustee of any municipality in Illinois. Subparagraphs 10 and 11 are pertinent because any interest in a corporation or employment relationship contemplated by subparagraph 11 by an official listed in subparagraph 14 causes the official to be in violation of the paragraph and makes the licensee ineligible to hold a State Liquor License. Only three options are available to cure a defect found under this paragraph: first, the license could be voluntarily surrendered to the Liquor Control Commission and not reissued; or, second, the relationship between the licensee and the Aldermen could be terminated; or, third, the affected official could resign their position with the municipality. Once again, one exception to general prohibition exists. Officials listed in subparagraph 14 that are members of fraternal or charitable organizations holding a liquor license can act as officers or members of the organization if certain conditions existing in other paragraphs of the Liquor Control Act are met. The Attorney General has issued Opinion No. S-1174 in 1976 that opines that officials listed in subparagraph 14 do not violate that subparagraph as long as they do not draw a salary from the club. Extreme caution should be exercised by municipal officials attempting to take advantage of this exception in the law. As previously stated, a violation of subparagraph 14 may only be cured in one of three methods and the consequences of failure to comply are somewhat severe.
OFFICERS v. EMPLOYEES Throughout the Municipal Code and in the day-to-day operations of government the terms "officer" and "employee" are often used, sometimes incorrectly. The Municipal Code imposes certain duties, rights and obligations on officers that are not imposed on employees. Conversely employees have certain rights and privileges that are not always available to officers. It is, therefore, useful to be able to distinguish between the two. No specific statutory material distinguishes between public officer and a public employee. The distinctions that have been drawn in Illinois and throughout the country have evolved through the case law. Two Illinois cases in which the distinction was at issue have relied on other sources to establish multistage tests to determine employment versus office. The first of these, Wargo vs. Industrial Commission (1974), 58 Ill. 2d 234, 317 N.E.2d 519 relies on McQuillin's Law of Municipal Corporations as the source of its test. In McQuillin, the three characteristics which distinguish a public office from employment are: (1) an authority conferred by law, (2) the power to exercise some por- May 1987 / Illinois Municipal Review / Page 7 tion of sovereign functions of government and (3) permanency and continuity. (3 McQuillin, Law of Municipal Corporations, Paragraph 12.30.) The second case relies upon the test set forth in Wargo and expands the conditions. Midwest Television, Incorporated vs. Champaign Urbana Communications, Incorporated (1976), 37 Ill. App. 3d 926, 347 N.E.2d 34 recites a seven stage test.
BILLBOARDS The police power to regulate outdoor advertising is granted to a municipality by Paragraph 11-80-15 of Chapter 24, "Street Advertising." This Section provides that:
This Section and outdoor advertising has been and remains the subject of numerous pieces of litigation in Illinois. However, one Illinois case clearly summarizes the law behind the concept of prohibition of all outdoor advertising. Metromedia, Inc. vs. City of Des Plaines, 26 Ill. App. 3d 942, 326 N.E.2d 59. 1st District, 1975 invalidated an ordinance of the City of Des Plaines which attempted to prohibit all outdoor advertising based upon aesthetic considerations. The case contains the discussion of the necessary relation of a police ordinance to the health, morals, safety or general welfare of a community. Generally, the case held that aesthetic considerations were insufficient to validate an ordinance enacted pursuant to the police power. Additionally, the case contained citation to numerous other Illinois cases ruling upon the reasonableness of ordinances regulating the placement of outdoor advertising signs. If a reasonable basis does not exist for prohibiting the billboards, a challenge to the constitutionality of the ordinance would probably be successful. In addition, federal legislation has had the effect of preempting local control over billboards. Ordinances regulating outdoor advertising have been passed by numerous communities to control a potential saturation of a particular area and to guarantee that the signs erected are not hazardous. [Note: The four opinions set forth in this Article are based on broad principles of Illinois law. They may not apply to each and every similar factual situation. Consultation by municipal officials with their attorney is critical in determining the precise legal requirements of these situations or any complicated legal situation presented to the municipality.] As always, I and my staff will be available to assist the local municipal attorneys in dealing with problems as they require. And as additional subjects are raised that are of interest to a great number of municipalities in Illinois, I will continue to comment on those in this column.
CABLE TELEVISION UPDATE
In a case decided March 20, 1987, municipalities throughout the United States have achieved a small victory in the continuing battle over cable television regulation with the Federal Communications Commis- Page 8 / Illinois Municipal Review / May 1987 sion and against the Cable Communications Policy Act of 1984. The United States Court of Appeals for the District of Columbia Circuit has decided in the case of City of New York vs. Federal Communications Commission _F. 2nd_, that the FCC's rule-making with respect to certain classes of channels was "arbitrary and capricious within the meaning of the administrative procedure" in attempting to preempt franchisors' efforts to regulate local technical standards. According to the Commission, it had the authority to regulate or fail to regulate the technical standards to be used on cable channels which were used for delivery of signals which were not available through standard broadcast television signals (ie. Cable News Network, ESPN, Home Box Office, Governmental Access and educational channels). The plaintiffs in the case argued that the FCC by failing to regulate these types of signals had left municipalities in a position that made them unable to judge the compliance of a cable operator with objective standards when considering renewal of the franchise. In its opinion, the court agreed that the conduct of the FCC was arbitrary and capricious in failing to enact standards for those classes of signals and, in effect, ordered them to adopt appropriate standards. Although this victory for municipalities seems to deal with a trivial issue, the ability of a municipality to judge the performance of a cable operator for channels other than those available through standard broadcast signals could become critical in the franchising decision. It is expected that the FCC will now promulgate regulations for these classes of signals based upon the remanding of the case to the Commission "for further proceedings consistent with this opinion." • May 1987 / Illinois Municipal Review / Page 9
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