by
Stewart H. Diamond
Robert K. Bush
Keri-Lyn J. Krafthefer
Derke J. Price

1. Must a candidate for Alderman live in her ward for least a year preceding election or appointment?

ANSWER: Probably not. Some commentators believe an Alderman must have resided within the ward or district for at least a year prior to taking office. A recent federal case in New Jersey held that as long as a candidate had resided within the municipality for the requisite period of time, (one year in Illinois), he or she could not be precluded from taking office, especially in an instance of redistricting, where the candidate had not resided in the new district or ward for the requisite period of time, but had resided in the municipality. Another federal case holds unconstitutional a provision like the one in Illinois, which precludes candidates from taking office if they are in arrears in the payment of a tax or other indebtedness. Recent federal cases have found a large number of State technical election requirements unconstitutional. Many provisions of the Illinois Election Code, which courts have held unconstitutional, remain "on the books." Be sure to consult with your attorney before relying on Divisions of the Election Code.

2. Can an Alderman begin his term or remain in office if he spends half the year at a vacation house in Arizona?

ANSWER: Yes, Illinois law requires that an elected official be a resident and legal voter. Residence is defined as a permanent place in the municipality with an intention to remain in the community. It is up to the voters to determine whether they wish to elect an individual who will spend some or a great deal of the year outside of the jurisdiction. If the elected officials fails to perform his duties, the State's Attorney can bring a lawsuit to remove the individual from office.

3. Can an Alderman also be the Building Commissioner?

ANSWER: Yes, with conditions. An Alderman could be assigned the duties of a Building Commissioner so long as he is not given a salary for that second position. With certain specific statutory exceptions, such as the fact that the Clerk can be the Collector or other officers can serve as a Budget Officer, and the Mayor is automatically the Liquor Commissioner, elected officials cannot hold two offices within the municipality.

4. Can a police officer serve as the mayor?

ANSWER: Yes, with conditions. State law specifically gives police officers or firefighters the right to take elective offices. In keeping with the philosophy discussed in the last question, they cannot serve in both positions simultaneously, and they must request a leave of absence from their police or fire position. The municipality probably is not required to grant such a leave.

5. Can a municipality adopt a manager form of government by ordinance?

ANSWER: No, certain forms of governments, such as the manager form, the commission form and the strong Mayor form can only be adopted by voters in a municipality by approval of the change by referendum. A municipality, however, can adopt certain parts of these forms of government by giving particular officials extra powers by local ordinance. Those powers can also be withdrawn by ordinance. For example, many municipalities which have employed a professional administrator have given that new officer expanded powers by way of ordinance.

6. If a municipality has adopted the manager form of government, can it give the manager a multi-year contract?

ANSWER: Yes, non-home rule communities can give non-referendum managers multi-year contracts which do not extend beyond the term of the mayor. Home rule municipalities, which have adopted the manager system by referendum, can probably enter into longer contracts. Because the statutory provisions dealing with the manager form of government provide that the municipality can discharge the manager at any time, it may be that what the manager actually would get in such a contract is not a guarantee of the job, but only of the salary. A contract should have a severance clause.

7. Is the Mayor allowed to make motions and participate in the debate?

ANSWER: No and yes. In the commission form of government and in a few other governmental variants, the Mayor can participate in the actions of the legislative body just like any other Alderman or Trustee. In most forms of government, however, the Mayor or President serves as the presiding officer of the legislative body and is not permitted to make or second motions. The Mayor or President only votes in certain limited situations. Under some technical rules of parliamentary procedure, intended for large bodies, the presiding officer is very limited in the ability to engage in debate. These rules sometimes require the presiding officer to turn the chair over to another person in order to do so. In Illinois, absent some specific parliamentary procedure of this nature, Mayors and Village Presidents, while required to keep the parliamentary process orderly, are themselves permitted to be an active participant in those discussions.

8. Can a Municipal Clerk participate in legislative debate?

ANSWER: Yes, with permission. Municipal Clerks, though often elected officials, are not part of the legislative body. In most communities, the Clerks do not actively participate in legislative debate, but they certainly may be permitted to do with the acquiescence or specific consent of the legislative body or Chair of the meeting. Clerks, unlike the Mayor and legislators, do not have legislative immunity and their comments, if libelous, can result in suits against them.

9. What can a public body do if no quorum is present?

ANSWER: Very little. The City Council or Village Board is allowed to send representatives out in an effort to produce a quorum. Committees or other ancillary governmental bodies can only wait for a quorum to arrive. If large numbers of the public are present to address some issue which was to be on the agenda, we believe that the officials present can simply let the assembled citizens speak and invite them to come to a later meeting when a quorum should be present.

10. Can governments hold meetings outside of their jurisdiction?

ANSWER: Yes, the general rule regarding governmental meetings is that they should be held at a place and at a time when the citizens of that government could reasonably attend the meeting. In some cases, a municipality may need to move a meeting, hopefully in advance, to a public meeting room large enough to accommodate anticipated public attendance which may be located in an adjacent community. This should not be a legal problem so long as the meeting is announced in advance. If a great many people unexpectedly show up at meeting, the meeting can be recessed if a larger auditorium is available and reconvened with a quorum as soon as a transfer takes place. A note should be posted at the prior meeting location indicating that the location of the meeting has shifted. Municipalities sometimes hold advertised open retreat meetings at nearby resorts or conference centers.

11. Can a majority of a quorum, the full Council, or Board or one of its committees, go on a field trip to another State to view a potential vendor's operation or the facilities of a business seeking to move to the municipality and asking for special zoning consideration?

ANSWER: Yes, if the public body is merely going to the new location to observe and ask questions, as individuals rather than to collectively discuss the issue, such a meeting is acceptable. Some governments have called special meetings at the distant location and invited the press and the public to attend. In these situations, if you are in a county where your State's Attorney will quickly respond to a request for advice, such a request is not a bad idea. Even sending a letter to a State's Attorney indicating that such a trip or meeting is taking place and theoretically giving that official an opportunity to object to the trip probably also represents good political and public policy.

12. Are citizens entitled to speak at public meetings?

ANSWER: No, there is a distinction between a public meeting and public hearing. At a public hearing, the views of the public are being solicited and a substantial opportunity for members of the public to fully participate and ask questions is essential. At a public meeting itself, there is technically no requirement to permit the public to address the Council or Board. Almost every governmental body in Illinois permits comments at public meetings. Public hearings are different. An Illinois Appellate Court has held that the public must be given a meaningful opportunity to participate in public hearings. To suddenly cut off this opportunity in the midst of a controversy or to only give one side the ability to address the Board can result in both Open Meetings Act violations and lawsuits under the Federal Civil Rights Act.

13. Do State's Attorneys usually indict for Open Meetings Act violations?

ANSWER: No, where an Open Meetings Act violation is either unintended or takes place with facts where there is no clear prior precedent, almost every State's Attorney brought into these matters is satisfied if the municipality promises future compliance. Where the violation is clear or repetitive or takes place in the face of warnings or threats that a violation is about to occur, State's Attorneys may move to seek civil and criminal penalties.

14. Can an Alderman vote on a zoning variance if she didn't attend the Plan Commission meeting or the applicant's oral presentation before the Council at a prior meeting?

ANSWER: Yes, unlike judicial decisions, where judges are limited in their decision making process to the particular information that they have heard, seen or read, legislators can make their decisions on any basis and, in fact, no basis at all. Although legislators sometimes attend the hearings of recommendatory bodies, like a Plan Commission, there is literally no statutory requirement that they acknowledge having read the material submitted by the Plan Commission. Obviously, a conscientious member of a legislative body will have read the material, including full recommendations and any transcripts submitted, prior to a final vote on the matter. In zoning cases, officials usually make an effort to visit the site.

15. Can elected officials state that they will only grant a zoning variance when all of the adjacent property owners consent to the requested variance?

ANSWER: No, Illinois law does contain a number of provisions which require legislative bodies to pass matters by an extraordinary majority vote when protests of a particular kind and quantity are filed. Since members of a legislative body are elected to make up their own minds and present their own views, any formal acknowledgment by them that they would not grant a variance unless all neighbors consented would be a deprivation of the constitutional rights of the applicant for the variance. Of course, no one can tell what is in the mind of the legislators, but it is important for elected officials to remember that their duties are generally to distill the view of the public including individuals especially affected by change and to determine how those views fit with their own and are likely to move forward the betterment of the community.

16. Can a citizen sit in the front row of a council meeting and videotape the proceedings?

ANSWER: Yes, citizens are allowed to take audio or video recordings of public meetings. With modern equipment, the need for bulky materials and bright lights has largely disappeared. If the Council finds that the presence of the recording device in the first row is annoying, a different location may be set aside for videotaping, as long as the location does not prevent a clear and unobstructed view of the proceedings. A very conservative governmental body could probably deny the right of a citizen bent on recording from connecting to a publicly-financed power supply. A municipality, by ordinance, may prescribe reasonable regulations governing the recording of meetings.

17. Can a governmental body reconsider a vote?

ANSWER: Yes, in the absence of any specific procedural rules, general principles of Illinois law allow for such a reconsideration so long as the rights of third parties have not intervened. Although a Council or Board could later consider canceling a contract, it cannot reconsider the original adoption once the contract has been signed by the other party. The same is true of an ordinance once the Mayor or President has approved it. A motion to reconsider an action must be made by someone who was on the winning side in the prior vote, although a second may come from any member. If the motion to reconsider is adopted, the original proposition comes back before the Board or Council. In one case, the court held that a vote which initially upheld the recommendation of an advisory body, such as the plan commission, could not be reconsidered without the matter being returned for another public hearing before the advisory body.

18. Must all construction contracts be awarded as a result of competitive bidding?

ANSWER: No, State law allows a governmental body, upon the two-thirds vote of the Aldermen or Trustees, to waive competitive bidding. Governmental bodies can also reject all bids and then award the contract, by the extraordinary majority vote, without rebidding it. This practice should be used only infrequently, since ultimately contractors will not bid on public jobs if they believe that the bidding process will be thwarted.

19. Can a government award a contract to the second lowest bidder if that applicant is a local business and the company making the lowest bid is not?

ANSWER: No, governments cannot limit bids to local companies unless there is some very special reason why a more distant company could not reasonably fulfill the contract specifications. If there is some very special reason why proximity to the community by the bidders is required, that specification must be clearly listed in the contract and bid specifications. The award of a contract to the lowest responsible bidder may still be based on certain factors beyond price. Factors such as reputation, experience, lawsuits and available personnel may also be considered. A company which believes that it should have been awarded a contract cannot sit on its rights, but is required to immediately seek to enjoin the execution of the contract to the company which it deems to be unqualified.

20. Can a municipality outlaw an adult bookstore?

ANSWER: No, certain uses, such as adult bookstores are entitled to constitutional protections. Municipalities can pass ordinances which reasonably license, regulate and locate such adult uses within the community, but efforts to complete ban businesses which arguably possess some First Amendment federal constitutional protections generally result in municipal losses and damages.

21. Can a municipality set up a committee system without additional statutory authority?

ANSWER: Yes, Illinois law says little about the establishment of committees of the Council or Board. Even non-home rule communities can establish a series of committees or meet as a committee of the whole. Committee meetings must be conducted in accordance with the Open Meetings Act.

22. Can a municipality require a library district to apply for a special use before constructing a building?

ANSWER: Yes, there are a number of Illinois cases which deal with potential conflicts between governments. In general, the courts grant municipalities zoning authority over the buildings of local rather than regional governments. Requests from governments are, however, to be judged by a less strict standard than those of private parties, since the State has also given those governments the responsibility to carry out certain functions.

23. Can municipalities require that all churches receive special uses?

ANSWER: Probably not. Recent case law and statutory law has significantly reduced the power of municipalities over religious institutions and activities practiced by religious individuals. Where the action of the government in any way interferes with the religious practice, it must sustain its regulatory scheme under a very strict standard. Your attorney should be specifically consulted whenever a religious institution presents an application to a municipality which is likely to be rejected or where the applicant refuses to follow the normal process. In general, courts will require the religious institutions to at least apply for the permits.

24. Can a Village Board or City Council go into closed session to discuss the purchase of land for a public works garage "somewhere on the south side of the community?"

ANSWER: No, closed session can be used to discuss the purchase or acquisition of land, but only when the community has focused on a particular site or sites which it wishes to purchase. Policy decisions regarding the general area where land should be acquired, must be discussed in open session.

25. Can a municipality hire a public relations firm to assist it in mounting a campaign to oppose the unionization of a group of its employees?

ANSWER: No, State labor law forbids governmental bodies from hiring public relations firms or personnel consultants to assist it in creating such informational campaigns. One exception to this rule is the employment of attorneys who can assist municipalities in this process. It is important to remember that the use of threats, interference, promises or surveillance [TIPS] are all improper actions and, in a worse case, can result in the union being certified as a bargaining unit even if it has not won a majority vote in a representation election.

26. Can a municipality, by motion, waive the provisions of an ordinance?

ANSWER: Not without preparation. In general, an ordinance can only be changed by another ordinance. Where a municipality engages in a common practice, such as, for example, waiving the payment of a building permit fee for other public bodies, the ordinance itself should be amended to specifically allow the corporate authorities to waive the payment by motion.

27. Can the Mayor adjourn or recess a meeting without the vote of a Council or Board?

ANSWER: No, the duration of public meetings is left up to the legislative body to determine. In a famous case involving the City of Chicago, its then-Mayor walked out of a meeting saying that it had ended. A quorum of the Council remained and was found to have effectively passed a series of ordinances.

28. If a citizen appears at a Council or Board meeting asking for a resolution honoring a citizen in conjunction with a block club party, can the matter be added to the agenda and be acted upon?

ANSWER: No, a recent Illinois Appellate Court case casts doubt on whether governmental bodies can add new items to agendas and act upon them. The normal practice of governmental bodies to add non-controversial matters to agenda items and act upon them at the same meeting may be an unintended casualty of the new rule. Efforts will be made to reverse this decision by legislative change.

29. Can newly-elected officials raise their salaries at the first Council meeting after the election or the last one before the election?

ANSWER: No, State law now requires that the salary of elected officials cannot be increased or deceased unless the action is taken at least 180 days before the beginning of the term of the officer whose compensation is to be fixed. The compensation of a Collector who also serves as the Clerk may be increased or decreased during the term of the Clerk.

30. Can the Mayor veto a motion to close the Village Hall on Valentine's Day?

ANSWER: No, in those communities where the Mayor possesses veto power, that power is limited to all ordinances and motions or resolutions create liability or for the expenditure or appropriation of its monies.