MISCELLANY

As Chief Counsel, a great number of items cross my desk that are of interest to municipalities which contact me regarding them, but also would probably be of interest to other municipal officials and attorneys across the state. This month's article is composed of a number of these items which are legislative, administrative and judicial in nature.

Johnson v. State Employees' Retirement System
155 Ill. App. 3d 616, 508 N.E.2d 351, 108 Ill. Dec. 190
(Ill. App. 1st Dist., April 30, 1987)

In this case the State Employees' Retirement System denied benefits to Johnson who sought administrative review of the denial. The Defendant moved to dismiss the action claiming Johnson filed his Complaint after the statutory thirty-five day time limit for filing a petition in administrative review. The trial court denied the motion and the System took an interlocutory (interim) appeal of the decision. The Appellate Court held that a notice to a claimant denying him benefits, without informing him of his right to appeal and time limit for doing so, denied due process and a defective notice "tolled" the filing period for an appeal. The language of the opinion of the court illustrates the clear need for municipalities to provide adequate notice of rights to review of administrative decisions to persons affected by those decisions.

Section 3-103 of the Code of Civil Procedure provides that "(e)very action to review a final administrative decision shall be commenced by the filing of a Complaint... within thirty-five days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby." (Ill. Rev. Stat. 1985, ch. 110, par. 3-103.) This section of the statute has been interpreted by the court in this case as requiring actual notice of the filing period. In addition, the court held that the thirty-five day period does not begin to run until the agency giving notice has provided adequate notice of its decision. Finally, the court concludes that a failure to inform an affected party of the right to appeal and the time limit for doing so may deny the claimant due process of law. Citing Department of Revenue v. Jamb Discount, 13 Ill. App. 3d 430, 369 N.E.2d 179,11 Ill. Dec. 725, the court writes:

"Procedural due process requires that notice be given of the claim asserted. The right to a hearing includes not only the right to present evidence but also a reasonable opportunity to know what claims must be defended against and what consequences are proposed. (Citations omitted.) In order to be effectual, notice should be so full and clear as to disclose to persons of ordinary intelligence was proposed. (Citations omitted.) The test is whether the defendant should have anticipated the effects and orders possible." (Emphasis Added.)

The lesson of this case to municipalities should be clear and unequivocal. Any time that a municipality takes an administrative action that affects a claimant, petitioner or applicant in an adverse manner, the decision refusing the requested action should be in writing, should clearly spell out the action taken by the municipality and should inform the person affected of the right to administrative review, including the time limit in which such review must be commenced and the effect of the failure to apply for review in a timely fashion. Many times, municipalities will provide the decision and the rationale therefore but will omit the notice that the court in Johnson is requiring. This opinion clearly mandates the inclusion of this notice and sets forth a concise test by which municipalities may judge the adequacy of their notice to parties affected by adverse decisions of the municipality or any subsidiary body.

EXEMPTION OF MUNICIPAL PROPERTY
FROM REAL ESTATE TAXES

It has recently been brought to my attention that the municipal calendar (see December, 1987 Review)

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omits an important duty of the municipality in its ownership of property and exemption from real estate property taxes. Chapter 120, paragraph 500, Ill. Rev. Stat. 1985, requires the titleholder of any property which is exempt from real estate property tax to file an annual certificate regarding the property. The certificate is to be filed with the County Assessor or the Supervisor of Assessments, as the case may be, on or before January 31st of each year. The certificate should include whether there has been any change in the ownership or use of the property or of the status of the municipality. Any municipality (or other owner) of five or more exempt parcels within a county is entitled to file a "single annual affidavit in lieu of such annual certificates." The statute also requires that the assessor or Supervisor of the Assessments shall, upon request, furnish a form of the affidavit to the owner of the property. Finally, a municipality which leases, loans or otherwise makes "available for profit" property owned by it or listed on an assessor's or supervisor's certificate is required to file with the assessor or supervisor a copy of any lease or agreement together with a description of the property. The documentation submitted to the assessor or supervisor must be sufficient for that officer to ascertain the size and location of the premises in order to assign a tax number to the property. A failure to file the documents required can result, in the discretion of the assessor or supervisor, in a termination of the exemption from taxation for that property without regard to any other provision of the revenue act.

DOOR-TO-DOOR SALESMEN

House Bill 560 (Public Act 85-0600) has created the Transient Merchant Act of 1987. This Act has created a complete licensing scheme for uniform licensing of itinerant merchants. Included in the Act is a provision which provides "Nothing in this Act shall limit the authority of a unit of local government to license or regulate transient merchants or itinerant vendors in a manner not inconsistent with this Act." I have recently been asked by several home rule municipalities for an opinion regarding the effect of this language on their current licensing schemes with respect to transient merchants and itinerant vendors.

With respect to home rule municipalities, it does not appear that the Act is a limitation on the power of a home rule municipality to adopt an alternative or inconsistent licensing scheme for itinerant merchants.

A second section of the Act could give rise to an argument that the area (licensing of transient merchants) has become a matter of "statewide concern" thereby preempting local regulation. Section 7 of the Act provides that a violation of the Act is a Class B misdemeanor on the first offense and a Class 4 felony for conviction upon a second or subsequent offense. A similar argument was raised by the Director of Labor in the case of People ex rel Bernardi v. City of Highland Park, (Ill. Sup. Ct. Docket #62419, decided November 20, 1986). However, the opinion implicitly indicates that the court did not accept the argument as having great weight. Justice Miller does not dispose of the contention, but, rather, only mentions that it was raised at argument. A case which more clearly illustrated the issue and more squarely addressed it was Kalodimos v. Village of Morton Grove, 83 Ill. Dec. 308, 470 N.E.2d 266, 103 Ill. 2d 483, (Ill., 1984). Part II of the opinion addresses the propriety of an ordinance prohibiting

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possession and ownership of handguns under home rule power. The plaintiffs in that case urged the court to adopt an expansive definition of "statewide concern" based, in part, upon the imposition of statutory criminal penalties. The court characterized this view as a "freewheeling preemption rule" and declined to adopt it. Later, the court states, "(t)he grant of home rule powers contemplates that different communities which perceive a problem differently may adopt different measures to address the problem, provided that the legislature has taken no affirmative steps to circumscribe the measures that may be taken and that the measures are reasonable." (Id. at 317, 318.) It is my opinion that, assuming existing licensing measures are reasonable, the courts would view the "statewide concern" argument as in Bernardi and Kalodimos and hold that it does not preempt home rule.

For non-home rule municipalities, the police department of the municipality is designated as the "licensing agency" for the purposes of the Act. The Department is required to provide a license application which includes certain information specified in the Act and to obtain from the applicant requesting a license a surety bond or deposit in an amount equal to fifty percent of the wholesale value of the merchant that the applicant intends to offer for sale. However, the bond or deposit is not to be less than one thousand dollars nor more than ten thousand dollars. Within fourteen days after the cessation of business by a transient merchant or itinerant vendor licensed under the Act, the police department is required to convey the bond or deposit to the Attorney General who is then required to hold the bond or deposit for two years to protect against claims for loss or damage as a result of the purchase of any merchandise from a licensed merchant or vendor.

The Act also specifies the duration of licenses issued under the Act, fees which may be collected, penalties for failure to obtain a license, definitions of transient merchant and itinerant vendor and a procedure by which an unlicensed merchant or vendor may have their goods seized for failure to obtain a license. Both home rule and non-home rule municipal officers would be well advised to review this Act with their attorney to determine the applicability of its provisions and the compliance of the municipality with the provisions of the Act.

ARCHITECTURAL AND ENGINEERING CONTRACTS

Public Act 85-854 has established procedures by which units of local government, excluding Chicago and home rule municipalities, in Illinois are to select architects and engineers to provide services to them. It also provides that "(i)t shall be the policy of the political subdivisions of the State of Illinois to negotiate and enter into contracts for architectural, engineering and land surveying services on the basis of demonstrated competence and qualifications for the type of services required and at fair and reasonable compensation." Certainly no municipal officer would disagree with the policy, however, this Act has served to create some confusion in the continuation of current architectural and engineering contracts and the procurement of future services.

The Act sets forth a multi-stage procedure for acquiring the services of architects, engineers and land surveyors by a unit of local government. First, such firms are to be permitted to file an annual statement of

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qualifications and performance data with the unit of government. Second, whenever a project requiring one of the services is proposed, the unit of government is required to (A) mail a notice requesting a "statement of interest" to all firms who have current statements of qualification on file or (B) place an advertisement in the newspaper of general circulation within the unit of government requesting a "statement of interest" in the specific project. The advertisement is required to set forth the day, hour and location that the statement of interest is to be submitted. Third, the selection procedure for services is then to take place based upon the evaluation of the statements of interest, statements of qualifications and performance data submitted. This procedure authorizes the unit of government to conduct discussions with and require public presentations by firms deemed to be most qualified regarding their "qualifications, approach to the project and ability to furnish the required services." In considering a firm the unit of government may take "into account qualifications, ability of professional personnel, past record and experience, performance data on file, willingness to meet time and budget requirements, location, work load of the firm and such other factors as the political subdivision may determine in writing are applicable." From the data submitted, a municipality is then required to prepare a list of three most qualified firms ranked in order of preference and qualifications by the unit of government. The unit of government is then required to contact the firm ranked "most preferred" and attempt to negotiate a contract for the services required on the proposed project. The Act continues by setting forth procedures for evaluation if less than three firms submit statements of interest, or if the unit of government is unable to negotiate a satisfactory contract for services.

The confusing language of the bill is contained in two separate sections. In the Public Notice and Selection Procedure Sections the requirements of those sections are made mandatory "unless it (the unit of government) has a satisfactory relationship for services with one or more firms, . . ." Recently, questions have been raised as to the meaning of this language and the context of the overall Act. It appears that, in the absence of any contrary intent, those contracts and relationships that a unit of local government currently has in place for the provision of architectural, engineering and land surveying services may be continued. This Act seems to be an attempt by the legislature to standardize the method by which units of local government throughout the state acquire services of architects, engineers and land surveyors in order that the process may be consistent throughout the state. •

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