ROBERT STUART

Legal & Legislative Notes by Robert A. Stuart General Counsel

SENATE BILL 1409 PASSES HOUSE. PROTECTS PARK DISTRICT LEVY UNDER SECTIONS 4.4 AND 5.1 OF THE PARK DISTRICT CODE

As the 1974 session of the 78th General Assembly grinds to its close in the usual atmosphere of controversy between the House and Senate, S.B. 1409 which clarifies the lack of direct relationship between the tax levy made in any fiscal year and the budget and appropriation ordinance for that year and repeals the section requiring publication of the appropriation ordinance within thirty days after its adoption has passed both houses of the General Assembly and now goes to the Governor for his signature. The passage of this bill, if approved by the Governor, will protect all park districts against possible objections which might have been raised because of a questionable procedure in the adoption or language of the new combined budget and appropriation under the amended sections of The Park District Code. S.B. 1409, sponsored by Senators Harris W. Fawell and Bradley M. Glass in the Senate and by Representative Ronald K. Hoffman in the House, reads as follows:

"Section 1. Sections 4-4 and 5-1 of 'The Park District Code,' approved July 8, 1947, as amended, are amended to read as follows:

(Ch. 105, par. 4-4)

Sec. 4-4. Adoption of budget and passage of annual appropriation ordinance required.) The governing body of each Park District shall, within or before the first quarter of each fiscal year, adopt a combined annual budget and appropriation ordinance, by which ordinance the board may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such Park District, and in such annual budget and appropriation ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose.

The budget included in such ordinance shall contain a statement of the cash on hand at the beginning of the fiscal year, an estimate of the cash expected to be received during such fiscal year from all sources, an estimate of the expenditures contemplated for such fiscal year, and a statement of the estimated cash expected to be on hand at the end of such year. The estimate of taxes to be received may be based upon the amount of actual cash receipts that may reasonably be expected by the Park District during such fiscal year, estimated from the experience of the Park District in prior years and with due regard for other circumstances that may substantially affect such receipts. However, nothing in this Act shall be construed as requiring any Park District to change or preventing any Park District from changing from a cash basis of financing to a surplus or deficit basis of financing; or as requiring any Park District to change or preventing any Park District from changing its system of accounting.

The governing body of each Park District shall fix a fiscal year therefor.

Such budget and appropriation ordinance shall be prepared in tentative form by some person or persons designated by the governing body, and in such tentative form shall be made conveniently available to public inspection for at least 30 days prior to final action thereon. At least one public hearing shall be held as to such budget and appropriation ordinance prior to final action thereon, notice of which shall be given by publication in a newspaper published in such Park District, at least one week prior to the time of such hearing. If there is no newspaper published in such Park District, notice of such public hearing shall be given by posting notices thereof in 5 of the most public places in such Park District. It shall be the duty of the secretary of such Park District to make such tentative budget and appropriation ordinance available to public inspection, and to arrange for such public hearing or hearings. Except as otherwise provided by law, no further appropriations shall be made at any other time within such fiscal year, provided that the board of such Park District may from time to time make transfers between the various items in any fund in such appropriation ordinance not exceeding in the aggregate 10% of the total amount appropriated in such fund by such ordinance, and may amend such budget and appropriation ordinance from time to time by the same procedure as is herein provided for the original adoption of a budget and appropriation ordinance; provided that nothing in this Section shall be construed to permit transfers between funds required by law to be kept separate.

After the first 6 months of any fiscal year have elapsed the board may by two-thirds vote transfer from any appropriation item its anticipated unexpended funds to

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any other item of appropriation, theretofore made, and the item to which said transfer is made may be increased to the extent of the amount so transferred.

The provisions of 'The Illinois Municipal Budget Law,' approved July 12, 1937, as now or hereinafter amended, are not applicable to Park Districts organized under this Act.

The failure of the governing body of any park district to adopt an annual budget and appropriation ordinance, or to comply in any respect with the provisions of this Section, shall not affect the validity of any tax levy of any such park district, otherwise in conformity with the law. The budget and appropriation ordinance for any fiscal year is not intended or required to be in support of or in relation to any tax levy made during that fiscal year.

(Ch. 105, par. 5-1)

Sec. 5-1. Each Park District has the power to levy and collect taxes on all the taxable property in the district for all corporate purposes. The commissioners may accumulate funds for the purposes of building repairs and improvements and may annually levy taxes for such purposes in excess of current requirements for its other purposes but subject to the tax rate limitation as herein provided.

All general taxes proposed by the board to be levied upon the taxable property within the district shall be levied by ordinance. A Certified copy of such levy ordinance shall be filed with the County Clerk of the county in which the same is to be collected not later than the third Tuesday in September in each year. The county clerk shall extend such tax; provided, the aggregate amount of taxes levied for any one year, exclusive of the amount levied for the payment of the principal and interest on bonded indebtedness of the district and taxes authorized by special referenda shall not exceed the rate of .10%, or the rate limitation in effect on July 1, 1967, whichever is greater, of the value, as equalized or assessed by the Department of Local Government Affairs.

The foregoing limitations upon tax rates may be increased or decreased under the referendum provisions of the General Revenue Law of the State of Illinois.

(Ch. 105, rep, par. 4-5)

Section 2. This amendatory Act takes effect upon its becoming a law."

The foregoing bill is the major piece of legislation directly affecting park districts which has, at this writing, been passed by the General Assembly in the present session. Other park district legislation, including Senate Bills 328, 329 and 330 (carried over from the 1973 session) and Senate Bill 1487 (sponsored by Senators Connolley, et al. in the Senate and by Representative Daniel Pierce in the House and which would remove the authority of the Regional Transportation Authority to condemn any park lands) have been retained in the Rules Committee despite motions by the sponsors to take them from committee and place them on the House calendar on second reading. At this late date, it appears unlikely that these measures can or will be considered prior to adjournment of the present session and prior to a possible fall session in 1974.

In other legislative action, House Bills 2629 and 2630 were consolidated after hearing in committee in the House. As originally drawn, this legislation would have required a mandatory change in the length of term of all park district commissioners from six to three years and would have required a mandatory increase in the number of commissioners at the next election from five to seven members. On the basis of objections raised on behalf of the Illinois Association of Park Districts, the sponsor Representative Robert S. Juckett consented to an amendment which would impose a mandatory requirement reducing the terms of park district commissioners from six to four years (in place of the three year term originally proposed) and would provide a permissive provision so that the number of commissioners in each park district could be increased from five to seven members either by ordinance adopted by the Board of Commissioners of the district or on the basis of a referendum called to vote on the issue by the residents and qualified voters of the district. This amended H.B. 2629 was passed as amended by the House and referred to the Rules Committee in the Senate. It appears that this bill will remain in the Senate Rules Committee and will not be acted on at the present session.

This type of legislation had been discussed by the Legislative Committee of the Association in prior years and generally approved on the basis of a permissive statute only. Further consideration should be given by the Association to such legislation at its next annual meeting. It would be helpful to the Legislative Committee if the questions raised by the proposed legislation could be discussed by each board prior to the Annual Meeting of the Association.

FAIR LABOR STANDARDS ACT APPLIES TO ALL STATE AND LOCAL GOVERNMENT EMPLOYEES

The 1974 amendments to the Fair Labor Standards Act (Federal Minimium Wage Law) extends coverage to all employees of State, local, and intrastate governmental agencies. Elected officials and appointees in the policy-making level and advisors are not covered.

The law provides that all non-exempt employees of public agencies must be paid not less than the following schedule:

$1.90 an hour beginning May 1, 1974;

$2.00 an hour beginning January 1975;

$2.20 an hour beginning January 1976; and $2.30 an hour after December 31, 1976.

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LEGAL AND LEGISLATIVE—

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Excepting where a specific overtime pay exemption is provided in the Act, all employees covered must be paid at least 1 1/2 times their regular rates of pay for all time worked after a 40 hour work week.

The Act does not require that an employee be paid each week. Payments may be made at other regular intervals, such as very two weeks, semi-monthly, or monthly, and the act does not require that both minimum wage and overtime be computed on the basis of hours worked in each work week. Hours of work, however, cannot be averaged over two or more work weeks except under special provisions affecting fire and police personnel. Compensatory time taken in a later pay period will not meet the overtime requirements.

The Act does not require premium pay for Saturday, Sunday or holiday work as such or vacation or severance pay, or a discharge notice; nor does it set any limit on the number of hours of work for persons 16 years of age or over.

A work week under the Act is a regular recurring period of 168 hours in the form of seven consecutive 24 hour periods. It may begin on any day of the week and at any hour of the day, and need not be the same for all departments and all employees. Once established, however, an employee's work week may not be changed unless the change is intended to be perminent. Hours worked includes all time an employee is required to be on duty or on the employer's premises, or at a prescribed work place.

Wage discrimination on the basis of sex is prohibited. Employees of one sex may not be paid at rates lower than are paid employees of the opposite sex in the establishment for equal work on jobs requiring substantially equal skill, effort and responsibility which are performed under similar working conditions. Under the Age Discrimination In Employment Act, most individuals who are at least 40 but less than 65 years of age are protected from age discrimination in matters of hiring, discharge, compensation or other terms, conditions, or privileges of employment.

Sixteen years is the minimum age for most employment under the Act although fourteen years is established as the minimum age for employment outside of school hours in a limited number of non-manufacturing occupations. Executive, administrative and professional employees are exempted from the minimum wage and overtime pay requirements.

All state and local governmental agencies (including park districts) which operate recreational establishments may utilize the exemption provided in Section 13 (a) (3) of the Act. This section provides a complete exemption from both minimum wage and overtime for employees of a recreational establishment which is not open for more than seven months in a year; or in which its average receipts during any six months of the preceding calendar year did not exceed one-third of its receipts for the other six months period. (This provision establishes the basis for determination of what constitutes seasonal recreational employment) .

Failure to pay the statutory minimum wage, overtime pay, or equal pay results in cumulative back wage liabilities. Further information should be obtained from: United States Department of Labor, Wage and Hour Division, Washington, D.C. 20210.

O.S.H.A. APPLIES TO PARK DISTRICTS

The Occupational Safety and Health Act (29 U.S.C., Sees. 651-678, enacted on December 29, 1970, applies to park districts. Section 13 (a) of this Act empowers United States District Courts to restrain any conditions or practices in employment which create eminent danger to employees and to require any affirmative action necessary to remove the eminence of such danger. Further information concerning the application of this act will be furnished in future bulletins and the magazine.

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