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    General Opinions

Rules apply to ambulances, not operators

Employees of a fire protection district who regularly provide ambulance service and emergency medical care and persons who provide such care to special service areas in county-owned ambulances are subject to section 535.65 of the Department of Public Health Rules. This section requires certification of an individual who actively functions as an Emergency Medical Technician-Ambulance (EMT-A). Since an exemption to some standards is allowed for ambulances owned by local government units, the question was whether or not this exemption extended to operators. The exemption was interpreted to apply only to vehicle standards, and not to personnel certification requirements.

In addition, the phrase "actively functions as an EMT-A" was defined to mean the activities of persons who perform basic life support services on a regular and ongoing basis. Certification standards are not required in isolated instances of first aid services by ordinary citizens, since the Emergency Medical Services Systems Act is aimed at a coordinated delivery system for emergency medical services. (File No. 82-053)

New investment rules for state board

The Illinois State Board of Investments may now invest funds without any specific restriction on the type of investments under Public Act 82-960. Because board members exercise discretionary authority over retirement systems and pension funds, they are fiduciaries and consequently subject to breach of fiduciary duty by failing to exercise standards of care set forth in Section 1-109 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 108½). The director and investment officers hired by the board are also considered fiduciaries, to the extent that the board has delegated discretionary authority to them.

Relatives of a board member or employees of the board may qualify as a "party in interest" with respect to the system or fund, and therefore fiduciaries are prohibited in engaging in certain transactions with them. The liability for breach of fiduciary duty does not by its own terms extend to a party in interest. However, if a party in interest has profited from a prohibited transaction, assets properly belonging to the system or fund may be recovered.

Board members should also use reasonable care to prevent another board member from committing a breach of duty. This section does not impose liability on any board member in a situation where an investment turns out to be a poor decision, rather where the board member or board collectively acted prudently when selecting the investment.

Section 1-114 of the code provides that board members make good on any losses to the system or fund due to a breach of fudiciary duties, or to restore any profits to the fiduciary if illegally gained. No authority exists for the board to purchase insurance to indemnify its fiduciaries against these liabilities.

Finally, if board members are sued in their official capacity, they may be represented by the attorney general, but this representation is unlikely if the officer or employee is sued personally for breach of fiduciary duty. Although these are general guidelines, the question of whether the attorney general shall represent any individual must be determined on a case-by-case basis. (File No. 82-059)

Practicing criminal law while county board member

No conflict of interest exists when a county board member, who is also an attorney, represents a defendant in a criminal case prosecuted by the state's attorney of the county. The same opinion holds for attorneys of the board member's legal firm or if the board member's spouse is an attorney who represents defendants prosecuted by the state's attorney. Although no exact precedent for the opinion was found, a similar case (In re Becker, 1959) charged an attorney with unethical conduct for representing private interests in zoning matters before the City of Chicago at the same time he was an alderman. The attorney's conduct was ruled ethical on the ground that the court, and not the legislative body, had complete jurisdiction and would make its determination without regard to the individual governing members. (File No. 82-060)□

April 1983 | Illinois Issues | 37