Executive Report

Attorney general's opinions stress Purchasing Act

TWO OPINIONS by Attorney General William J. Scott emphasize the importance of familiarity with the State Purchasing Act and the Corrupt Practices Act on the part of state personnel and state suppliers. In an opinion involving the 1974 State Fair, vendors were told their failure to inform themselves of the requirements of the purchasing law will cost them money. In a second opinion, questions concerning overlapping positions, paid and unpaid, between the Arts Council and institutions awarded grants by the council, were examined with respect to possible conflicts of interest and voiding of grants.

Pitfalls of selling to state
S-977 to Auditor General Robert G. Cronson,10/16/75

Businesses that sell to the state without regard to whether the buying agency complied with competitive bidding and other legal requirements do so at their peril, according to the attorney general's opinion on payment of claims arising out of the 1974 State Fair.

The 1975 legislature had appropriated funds to pay vendors who could not be paid because the fair agency had overspent its appropriation by almost $1 million. But, payments were subject to the joint approval of the governor and auditor general. This approval was to assure that the appropriation would be used for claims void only because of the lack of an appropriation, and not for payment of illegal contracts. The state fair agency, however, failed to comply with the State Purchasing Act until December I, 1974, so that contracts subject to the Purchasing Act entered into prior to that date are void.

"Private individuals dealing with the government must be aware of the statutory authority of persons with whom they deal," the attorney general said. "With due diligence these vendors could have discovered that the State Fair Agency had no rules or regulations on file with the Secretary of State ....

"Even acceptance of goods and services by the State under a void contract does not create a legal liability upon the State to pay for such goods and services. If this were not the case, then the State would be obligated to pay for what its department officials had irregularly and illegally obligated it to do. The object of the Illinois Purchasing Act is to prevent favoritism, corruption and extravagance in the awarding of public contracts and a determination that there was a legal obligation to pay for goods and services obtained in violation of the . . . Act would encourage a disregard of the Act and make it a nullity . . . ."

Conflict of interest on unpaid board
S-988 to Bruce Sagan, chairman, Illinois Arts Council, 10/29/75

The inquiry concerned possible conflicts of interest involving council members (who are unpaid), or panels of experts appointed by the council chairman, or paid council staff or consultants, and all of whom may serve in some capacity as trustees, paid consultants, or paid staff of a nonprofit corporation to which the council makes grants or receives and passes along federal funds. The opinion appraised these situations in the light of the Corrupt Practices Act and the Illinois Purchasing Act. The test to be made is whether the individual has a pecuniary interest in such a grant or funds.

There is no conflict for an unpaid council member when he is an unpaid trustee of a nonprofit corporation receiving funds through the council. A conflict exists and the grant contract is void, however, if the council member is a paid employee or consultant of the nonprofit corporation. Whether he votes on the grant is immaterial.

In the case of an unpaid member of a panel of experts who is also an unpaid trustee of a nonprofit corporation and where the panel makes no recommendation on the grant, no conflict exists. But when the individual is paid in either capacity, there is a conflict if the panel member is an officer as defined in the Corrupt Practices Act.

The Purchasing Act applies in situations involving paid staff or paid consultants of the council. If they serve as unpaid trustees of a nonprofit corporation which receives a grant or funds, no pecuniary interest is involved and hence no conflict. If, however, such an individual is a paid officer or employee of the nonprofit corporation, the existence of a violation depends on the facts in each case.

Treating widowers and widows alike
S-979 to Michael L. Mory, secretary. State Employees' Retirement System, 10/23/75

Widowers are now entitled to the same accidental death benefits as widows under the state employees' pension system, even though the death occurred prior to October 1 when a new law clarified the situation. Since similarly situated male and female members of the system contribute equally to the system, the variance in accidental death benefits is discriminatory and hence unconstitutional.

Serving in two offices
S-987 to Joseph M. Cronin, state superintendent of education, 10/19/75, and NP- 985, to Jack Hoogasian, state's attorney, Lake County, 10/23/75

An employee of the Illinois Office of Education may serve as a member of a local school board. There is no statutory or common law incompatibility between these two positions.

A county board member may serve on a county board of health. The specific statutory provision concerning county health departments which requires a county board member to serve on the county board of health prevails over a more general prohibition in the Corrupt Practices Act against county board members holding other offices.

No extra pay for deputy sheriffs
S-982 to Gerry L. Dondanville, state's attorney. Kane County, 10/23/75

A deputy sheriff under a county merit system, occupying an administrative position, may not be paid additional compensation above that set by the county board. "The purpose of a merit system is to pay and promote people according to their ability and not according to political considerations. If a sheriff is allowed to provide additional compensation to deputy sheriffs under the merit system by creating classifications outside such merit system, he will be able to frustrate the purpose of a merit system."

The attorney general suggested two alternatives: the merit commission could create classifications for the administrative position at a higher salary, or the post could be filled by a person not under the merit system and paid out of the civilian personnel budget.

Limits on counties without home rule
S-983 to Robert A. Downs, state's attorney, Fulton County, 10/23/75, and S-984 to Martin Rudman, state's attorney. Will County, 10/23/75

Counties that have not become home rule counties have only those powers delegated to them by the legislature. Consequently, Fulton County may not adopt an ordinance prohibiting private citizens from monitoring police radio frequencies. (In addition, there is no state law on the subject.) Nor may Will County by ordinance provide for an unpaid auxiliary police force. However, the attorney general suggested the sheriff as supervisor of safety could, with the approval of the county board, appoint assistant supervisors of safety. �