Executive Report

Attorney General Opinions

Ordinance on marijuana possession has no conflict with statute

MUNICIPALITIES, home rule and non-home rule, may enact ordinances making it a municipal offense knowingly to possess 30 grams or less of cannabis (marijuana). The public health power and police power provisions of the Illinois Municipal Code authorize such an ordinance which the non-home rule municipality of Hinsdale has passed.

The attorney general found no conflict with the Hinsdale ordinance and the Illinois Cannabis Control Act. If there is a conflict between a municipal ordinance and a state statute, the state law is controlling.

In the same opinion (S-1186) to DuPage County State's Atty. John J. Bowman on November 22, the attorney general said a municipality could enact an ordinance regulating conduct which is also regulated by the Illinois Criminal Code. As long as the General Assembly does not preempt this power to itself, home rule municipalities have concurrent powers. "The fact that a municipal ordinance and a State statute regulating the same conduct provide different penalties" does not constitute a conflict between the ordinance and the statute.

The attorney general said in his opinion that "when an individual is convicted of violating a municipal ordinance, a subsequent prosecution of the same individual arising out of the same incident under a State statute regulating the same conduct, would constitute double jeopardy in violation of both the Federal and State Constitutions."

Such a municipal ordinance regulating cannabis would not conflict with the Juvenile Court Act as long as the ordinance imposed only a fine and no other punishment.

Swine flu liability
County governments which administered swine flu shots under the recently stopped federal program are protected by Congress from liability for other than their own negligence, according to the attorney general's opinion (No. S-1171) November 19 to Joliet County State's Atty. Martin Rudman. The exclusive remedy for any injury or death arising out of the vaccination program is against the United States, according to the opinion based on Public Law 94-380.

There are exceptions. The county health department must cooperate in any suit alleged against the United States, and the federal government has the right to recover from the county payments made on account of the negligence of county health department employees and volunteers. The Local Governmental and Governmental Employees Tort Immunity Act does not protect a county from this liability.

Access to public records
The Department of Financial Institutions has the authority to release information from its records on currency exchanges unless the department determines the public's right to know is qualified by the interests of confidentiality, privacy or the need to protect sources of information, according to the attorney general's opinion (No. S-1191) to A. T. Tsoumas, department director.

The Community Currency Exchanges Act specifically provides that disciplinary and revocation orders of the department are part of the department's required records and therefore a public document and should be released to newspapers.

The department must decide whether its other records not specifically covered by statute should be disclosed, based on a balance between the public's fundamental right to inspect public records and those interests that call for protecting public records from public disclosure. The attorney general offered some guidelines for department decisions. Information required on licenses and freely submitted by licensees themselves, applications and sales agreements filed with the department could be open for public inspection. Financial statements unrelated to the currency exchange and information gathered by the department's own efforts, especially investigations undertaken for possible court action, are more likely to be qualified as records of confidentiality and security.

Pregnancy as disability
"The Illinois Pension Code prevents the board of the State Employees' Retirement System from treating pregnancy differently from other disabilities. The test for granting disability benefits to a system member is simply whether the member is incapable of performing his or her duties. Pregnancy is not excluded as a disability for which benefits are provided under section 14-162," is the attorney general's answer(No. S-1187) to Michael L. Mory, secretary of the State Employees' Retirement System on November 22. "The Board has no basis for excluding a person disabled by pregnancy from disability benefits," wrote Atty. Gen. William J. Scott./ C.S.G.

Opinions in brief

Prohibited interests in liquor licenses, S-114: Law enforcing public officials may be members of fraternal and civic organizations which have liquor licenses. They are prohibited from drawing a salary from such clubs, since this would involve a pecuniary interest.

Sale of alcoholic beverages, NP-1172: After the consolidation of two townships, the status of the territory with regard to the sale of alcoholic liquors remains the same as it was before consolidation.

Assessments of fees, S-1188: The state's attorney is not entitled to a statutory fee for revoking or hearing a petition to revoke an individual's probation or conditional discharge. The sheriff is entitled to one fee for committing a prisoner to jail. A fee for discharging a prisoner is allowed only at the termination of prison sentence.

Salaries of sheriff and county supervisor of safety, S-1185: A county board has no power to eliminate the sheriffs salary as supervisor of safety during his term of office but may change the salary effective at the commencement of the sheriff's new term.

Township assessor's employment of personnel, S-1184: The township assessor's power to employ deputies, clerks and secretaries is subject to the prior consent of the board of auditors. The Revenue Act of 1939 sets forth specific provisions, while a 1975 statute is silent on the matter of authority over employment and compensation.

State Board of Education, S-1179: Members of the State Board of Education who attend formal meetings of subsidiary bodies of the board may claim the $50 per diem for "meeting days" according to section 1 A-2 of The School Code. Since the board is assigned duties requiring the aid of standing committees and public hearings, the General Assembly has not limited "meeting days" to the board's regular monthly meetings.

Park district funds, S-1178: Park district officials may not use district funds to campaign for passage of bonding referenda. As a "special district" under Article Vll of the Illinois Constitution, a park district may not spend district funds without statutory authorization. The Park District Code also provides no authorization for campaign expenditures.

County funds for private agencies, S-1183: Members of a county board of a non-home rule county are not authorized to use or give funds or services to private organizations which serve the elderly. However, county board members may serve these organizations in their unofficial capacity if there is no conflict of interest.

Municipal preincorporation costs, S-1173: A municipality may not assume debts incurred for attorneys' fees in connection with the incorporation

26 / February 1977 / Illinois Issues

of the municipality. A non-home rule municipal corporation has only those powers provided by statute. No direct authorization is given in the Illinois Municipal Code for this purpose.

Group hospital, medical plans, NP-1176: A municipality, under section 10-4-2 of the Illinois Municipal Code, is not required to furnish retired policemen the municipality's group hospital and medical plan carried for its regular employees.

Horse Racing Act, NP-1175: The term "public official" as defined by section 3.15 of the Illinois Horse Racing Act of 1975 means a "public officer" representing the state of Illinois or a political subdivision of the state. It does not include elected federal officials or officials of other states.

County jails, S-1182: The prohibition against building a jail within 200 feet of a school building does not apply to a building which would be used as a sheriff's administrative office or juvenile detention facility.

Illinois State Toll Highway Authority, S-1190: The Illinois State Toll Highway Authority is not exempt from the provisions of P. A. 79-1441 which established a program assuring equal opportunity for employment for women, minorities and handicapped persons. P.A. 79-1441 does not conflict with the Toll Highways Act which gives power to the authority to employ and discharge its employees without regard to the requirements of the Department of Personnel.

Illinois Commerce Commission, S-1177: An intrastate radiophone communication or a paging service is not subject to regulation by the Illinois Commerce Commission. The definition of public utility in the Illinois Public Utilities Act does not apply to those services whose messages are transmitted solely by radio waves.

Banks as deputy collectors, NP-1181: The county collector does not have the authority to designate banks in the county as deputy collectors.

Rates for currency exchanges, S-1193: The director of the Department of Financial Institutions does not have the authority to set rates and tics which may be charged by community currency exchanges, since the Community Currency Exchanges Act does not specify that power in the legislative plan to regulate currency exchanges.

Interstate air taxis, S-1192: The Illinois Aeronautics Board does not have the authority to require an interstate air taxi, exempt from certification by the Civil Aeronautics Board, to obtain an Illinois certificate.

Savings and loan association as deputy collector, S-1180: A state savings and loan association may not act as deputy county collector under section 184 of the Revenue Act of 1939. However, county funds may be deposited in a state savings and loan association./ Mary C. Galligan 

CORRECTIONS
THE TERMS of three Illinois Supreme Court justices, William G. Clark and James A. Dooley, both of Chicago (1st District), and Thomas J. Moran, Waukegan (2nd District), will expire in 1986 and not in 1980 as reported in the January 1977 magazine.
INCUMBENT George E. Sangmeister (D., Mokena) was reelected to the state Senate for a two-year term as reported on page 26 in the January 1977 magazine. His name appeared incorrectly on page 25 in a list of incumbents who lost.ž

Judicial Rulings

Illinois Supreme Court

Attorney general vindicated

THE ATTORNEY GENERAL is the only state officer authorized by the Illinois Constitution to institute and prosecute cases before the Pollution Control Board, the Illinois Supreme Court decided in People ex rel. Scott v. Briceland, handed down Decembers. The opinion, written by Justice Ryan, affirmed a judgment of the Sangamon County Circuit Court, and held unconstitutional a section of the Environmental Protection Act authorizing the Environmental Protection Agency (EPA) to prosecute actions before the board.

The question was one which was explored earlier in Illinois Issues (Rubin G. Cohn, "Attorney General and Governor fight over control of lawyers employed by executive agencies," Jan. 1975, p. 9ff) and the opinion .cited the article by Cohn, who is professor of law at the University of Illinois. The court relied heavily on Constitutional Convention debates in deciding that there was no intent to change the interpretation of the attorney general's broad powers as "the only officer empowered to represent the State in any suit or proceeding in which the State is the real party in interest."

The attorney general, who had instituted the case against EPA, had also sought to hold Richard H. Briceland, EPA director, and Jeffrey R. Diver, deputy director, "personally liable for all litigation costs and expenses expended by the EPA for the prosecution of enforcement cases before the Board." This the court refused. "It is well established that a public officer is immune from individual liability for the performance of discretionary duties undertaken in good faith .... The defendants cannot be held liable for such an exercise of discretion which was made in their official capacities." The court also said the EPA and its officers were entitled to counsel other than the attorney general in this case testing EPA's legal representation authority.

The attorney general also figured in another case, Fuchs v. Bid-will, decided on Decembers. Fuchs and Businessmen for the Public Interest had sought to recover from legislators profits which they allegedly made from the purchase and resale of race track stock made available to them in return for influencing passage of legislation favorable to racing. The court, in an opinion by Justice Goldenhersh, held that only the attorney general had authority to bring a suit of this kind and "the public interest will not be served in permitting persons, without limitation, to institute actions of this nature against public officials when the Attorney General has declined to act." In dismissing the case, the court affirmed the original holding of the Sangamon County Circuit Court and reversed the Appellate Court.

Justice Schaefer was joined by two other justices, Kluczynski and Crebs, in dissenting, saying "in our opinion the public interest clearly requires that the merits of this claim be decided. Instead, the majority avoids that important decision by giving the Attorney General the exclusive right to bring this action — a right which he has not claimed and does not want." The case involved sale of stock by Marjorie Lindheimer Everett, who was also involved in the distribution of stock to the late Gov. Otto Kerner in a case in which Kerner was convicted. The stock was sold at $1 per share to the legislators, it was charged, and repurchased at prices ranging from $3 to $7 per share. The suit alleged that their profits ranged from $6,000 to $294,000.

The influence is 'evil'
The conviction of a DuPage County board member of violation of the Corrupt Practices Act was upheld by the Supreme Court in an opinion by Justice Kluczynski handed down December 3 on the case, People v. Savaiano. Patrick Savaiano, in his ex officio capacity as a forest preserve commissioner, served as chairman of the finance committee of the forest preserve commissioners. During that time, his committee recommended purchase of two tracts of land of which Savaiano was a secret part-owner. But, Savaiano disposed of his interest before the commissioners authorized the purchase of the tracts which were subsequently subject to a condemnation proceeding during which Savaiano's interest was discovered.

The Corrupt Practices Act makes it a class 4 felony for certain public officials, including county board members, to be directly or indirectly interested "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." Savaiano argued that he did not own the property at the time the contract was let. The court said this was too narrow an interpretation of the act. "It not only forbids an official from having a private interest in situations in which a binding

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