Local Government Q&A
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Municipal Q&A - June 2004

What Must Municipal Officials Do To Comply With The New State Ethics Acts?
ANSWER: The Illinois General Assembly recently passed two new ethics laws which affect local governmental entities and school districts. Public Act 93-617 enacts a new AState Officials and Employees Ethics Act.@ This bill repeals the former Gift Ban Act, but re-enacts it in a slightly different form, with stricter gift ban rules. As in the earlier version of the Gift Ban Act, this State law principally deals with arcane issues relating to the executive and legislative branches of State government. The second law, Public Act 93-615, restricts the use of governmental funds and facilities for political purposes. These laws both were intended to provide a comprehensive package of ethics legislation, intended to correct problems that arose mostly at the state level. However, portions of each of these laws, both of which pre-empt home rule powers, affect units of local government and school districts. The purpose of this memo is to apprise you of the actions your governmental entity or school district must take to implement these new laws.

Both of these new laws required the Attorney General to issue a model ordinance and procedures for implementation of the new rules. However, the laws do not require local governments to adopt the ordinances in the form suggested by the Attorney General. During the past few months, the attorneys at Ancel, Glink have reviewed the State Officials and Employees Ethics Act and various commentary on this legislation, and have had discussions with officials from the Illinois Municipal League, the Township Officials of Illinois and other state organizations in an attempt to determine the easiest manner in which our governmental clients can comply with these laws, which are confusing, inconsistent and, in several places, probably unconstitutional.

1. The new gift ban law. As you may recall, we have been through this exercise before when, in 1999, the General Assembly passed the original Gift Ban Act. Lawsuits were quickly filed to enjoin the enforcement of the legislation. For years while these lawsuits were pending, the obligations of local government under the laws were uncertain. Eventually, in an act which provided no assistance at all, the Illinois Supreme Court finally concluded that the individuals who brought the lawsuit did not have standing to question the law and the case was dismissed without the Court addressing any of the contested issues.

This law requires you to pass an ordinance (local governments) or resolution (school districts) by May 19, 2004. As required by the new law, the Attorney General prepared a sample ordinance for local governmental bodies, which recommends the establishment of additional bureaucratic positions where none is required, and seems to force governments into seeking penalties for violations of the Acts which are probably unconstitutional and may result in state or federal damage suits if fully implemented. For this reason, we do not recommend that your entity adopt the Attorney General's proposed ordinance. We believe you may accomplish the legal requirements much more simply by adopting the ordinance we have included with these materials, for the reasons discussed below.

One part of the Attorney General's ordinance requires each governmental body to appoint an Ethics Advisor. While it is beneficial for governmental officials to understand the provisions of the Act, there are clearly better and easier ways to accomplish it than by creating thousands of ethical personal trainers. The Attorney General's ordinance also gives communities the right to establish Ethics Commissions, which permit an administrative method of processing citizen complaints instead of the traditional method of circuit court prosecutions for ordinance violations. Neither new law requires a unit of local government to appoint an Ethics Advisor or create an Ethics Commission.

We believe that, except for a small number of governmental bodies, the preferred enforcement method for any ethics complaint would be to use the old-fashioned method of ordinance violations, instead of appointing an Ethics Advisor and creating an Ethics Commission. In most cases, we would recommend letting other governmental bodies experiment with these courts in waiting, rather than establish them almost as a self-fulfilling prophecy to encourage complaints from disgruntled citizens. We suspect that, for most governmental bodies, the Ethics Commission would never do anything. That is not to say that all officials of governments are entirely ethical or will follow the rules set out in the new legislation. Rather, it is to say that a well-documented violation of the law will likely be treated more fairly, more economically, and more quickly by a prosecutor than by a newly-formed, inexperienced, and perhaps not politically pure Ethics Commission.

As an alternative, we are pleased to recommend the form of ordinance suggested by the Illinois Municipal League, which has streamlined the Attorney General's ordinance, and which can be applied to other, non-municipal, units of local government. The recommended ordinance, a copy of which is enclosed, is three pages long, rather than the eleven pages favored by the Illinois Attorney General. Its language is similar to that previously recommended by the League during the first incarnation of a State-mandated ethics statute. The Illinois Municipal League draft simply adopts the State law in all of its glory. It does exactly what the State required us to do and no more. The optional appointment of an Ethics Advisor, and the creation of an Ethics Commission, is simply left for another day. The ordinance, in a provision which may or may not be entirely effective, also agrees to adopt changes in the State law without requiring an actual change in the local law. Finally, it suggests that, if the Act is held to be unconstitutional in whole or in part, those unconstitutional provisions will be deleted from the mirror-image ordinance.

However, some municipalities or school districts may want to create an Ethics Commission and appoint an Ethics Advisor. An Ethics Commission is given the ability to evaluate citizen complaints and to make an initial determination as to whether the local Ethics Ordinance has been violated. If so, the Commission can proceed with hearings to administratively adjudicate those complaints. For some governmental bodies, where many complaints are likely to be filed, this administrative process may well protect all parties through the use of a more subtle tool than prosecution. One might argue that the Ethics Commission, which is to evaluate complaints before deciding to proceed with a hearing, are best able to turn down frivolous complaints. On the other hand, local prosecutors themselves, whose decisions are subject to public scrutiny, are not likely to bring cases which they do not think that they can win. If your entity would like to choose this option, please contact us, and we can provide you with an appropriate version of the ordinance providing for an Advisor and a Commission.

Below is a list of "Frequently Asked Questions" the new gift ban law.

2. New laws regarding political activities of officers and employees. Public Act 93-615 prohibits the use of governmental funds and facilities for political purposes. We have attached a comprehensive list of the prohibited and permitted activities under this law. Like the Golden Rule, these provisions can be quickly summarized. Governmental officers and employees should not be forced to do unwanted political work in return for their jobs. Unfortunately, the Legislators have taken thousands of words to attempt to implement this concept.

Most governmental officials have spent their full careers in complete compliance with each of these rules. For many of these officials, their adherence to the rules may have been assisted by the fact that they were never tempted. Other officials simply said Ano@ when efforts were made to force them to do political patronage work, or said Ano@ when they were offered more than the most ordinary non-corrupting gifts. It is true that for some political organizations, the rules on limiting political activities may come as something of a shock. Other officials may find their visits to fancy-sounding golf courses limited to the miniature kind. But from our perspective, the education of our officers and employees to these new rules does not require the creation of a total new bureaucracy. Instead, compliance can be achieved if the enforcement authority is a prosecutor free to take proper cases into the quasi-criminal justice system.

Below, for your review, is a list of "Frequently Asked Questions" about the Political Activities, and a sample ordinance or resolution which can be adopted by any unit of local government or school district in Illinois. We have not made it part of the code book of any government, since it can function as a free-standing ordinance or resolution. Since the law requires an ordinance or a resolution, even governmental bodies which normally operate through the passage of simple motions are both required and authorized to adopt this document in ordinance or resolution form. We have included a section on the penalties for ordinance enforcement. If you have any questions regarding these matters, please feel free to contact either Stewart H. Diamond or Keri-Lyn J. Krafthefer.***********************************************************************************************************
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW GIFT BAN LAW

(5 ILCS 430/10-10 et. seq.)

by
Stewart H. Diamond
Keri-Lyn J. Krafthefer
Ronette Leal-McCarthy

The new gift ban law was adopted on December 9, 2003. Many local governmental and school district officials are wrestling with the confusing provisions of this law, which regulates the offering, soliciting, making, or accepting of gifts by officers and employees of, and persons whose interests are or may be affected by governmental entities. These materials summarize some of the questions frequently asked about the new gift ban law.

What does this law prohibit?

This law specifies that no officer or employee, and no spouse of or immediate family member living with any officer or employee (collectively referred to herein as "recipients"), shall intentionally solicit or accept any gift from any prohibited source (see definitions below). Further, no prohibited source shall intentionally offer or make a gift that violates this law.

How does this law define an "officer" and an "employee"?

5 ILCS 430/70-5 of the new ethics legislation defines "officer" as an elected or appointed official, regardless of whether the official is compensated. An "employee" is defined as a "full-time, part-time, or contractual employee." Remember, however, that independent contractors are not contractual employees, so they are not barred from receiving gifts under this law.

How does this law affect spouses and family members of officers and employees?

Section 10-10 of the gift ban law, 5 ILCS 430/10-10 specifies that the ban applies to and includes the spouse of and immediate family living with the officer, member or employee.

What constitutes a "gift" under this law?

A gift means any gratuity, discount, entertainment, hospitality, loan, forbearance, or other tangible or intangible item having monetary value including, but not limited to, cash, food and drink, and honoraria for speaking engagements related to or attributable to government employment or official position of a Board member or employee. For a list of the many exceptions to this definition, see below.

What is a "prohibited source"?

Under 5 ILCS 430/1-5, a "prohibited source" means any person or entity who:

a. Is seeking official action by the officer or, in the case of an employee, by the employee or officer or another employee directing that employee;
b. Does business or seeks to do business with the official, or, in the case of an employee, with the employee or an official or another employee directing that employee;
c. Conducts activities regulated by the official or, in the case of an employee, by the employee or by an official or another employee directing that employee; or
d. Has an interest that may be substantially affected by the performance or non-performance of the official duties of the official or employee.

What does not constitute a gift under this law?

Note: Each of the following items is mutually exclusive and independent of one another.

1. Opportunities, benefits, and services that are available on the same conditions as for the general public.

2. Anything for which the officer or employee, or his or her spouse or immediate family member, pays the fair market value.

3. Any (i) contribution that is lawfully made under the Election Code or (ii) activities associated with a fund-raising event in support of a political organization or candidate.

4. Educational materials and missions.

5. Travel expenses for a meeting to discuss business.

6. A gift from a relative, meaning those people related to the individual as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, and including the father, mother, grandfather, or grandmother of the individual's spouse and the individual's fiancé or fiancée.

7. Anything provided by an individual on the basis of a personal friendship unless the recipient has reason to believe that, under the circumstances, the gift was provided because of the official position or employment of the recipient or his or her spouse or immediate family member and not because of the personal friendship. In determining whether a gift is provided on the basis of personal friendship, the recipient shall consider the circumstances under which the gift was offered, such as:
  1. the history of the relationship between the individual giving the gift and the recipient of the gift, including any previous exchange of gifts between those individuals;
  2. whether to the actual knowledge of the recipient the individual who gave the gift personally paid for the gift or sought a tax deduction or business reimbursement for the gift; and
  3. whether to the actual knowledge of the recipient the individual who gave the gift also at the same time gave the same or similar gifts to other officers or employees, or their spouses or immediate family members.

8. Food or refreshments not exceeding $75 per person in value on a single calendar day; provided that the food or refreshments are:
  1. consumed on the premises from which they were purchased or prepared; or
  2. catered. "Catered" means food or refreshments that are purchased ready to consume which are delivered by any means.

9. Food, refreshments, lodging, transportation, and other benefits resulting from outside business or employment activities (or outside activities that are not connected to the official duties of an officer or employee), if the benefits have not been offered or enhanced because of the official position or employment of the officer or employee, and are customarily provided to others in similar circumstances.

10. Intra-governmental and inter-governmental gifts. "Intra-governmental gift" means any gift given to an officer or employee from another officer or employee, and "inter-governmental gift" means any gift given to an officer or employee by an officer or employee of another governmental entity.

11. Bequests, inheritances, and other transfers at death.

12. Any item or items from any one prohibited source during any calendar year having a cumulative total value of less than $100.

What can officers or employees do if they receive gifts that are prohibited under this law?

If an officer or employee receives a gift that would be prohibited under these laws, the officer or employee, his or her spouse or an immediate family member living with the officer or employee, does not violate this policy if the recipient promptly takes reasonable action to return a gift from a prohibited source to its source or gives the gift or an amount equal to its value to an appropriate charity that is exempt from income taxation under Section 501 (c)(3) of the Internal Revenue Code.

Please contact us if you have any additional questions regarding this new law.

*********************************************************************************************************** FREQUENTLY ASKED QUESTIONS REGARDING THE NEW LAW PROHIBITING POLITICAL ACTIVITIES

by Stewart H. Diamond
Keri-Lyn J. Krafthefer
Ronette Leal-McCarthy

The Illinois General Assembly recently passed Public Act 93-615, which restricts the use of governmental funds and facilities for political purposes. This law is codified at 5 ILCS 430/5-15 and applies to units of local government and school districts through 5 ILCS 430/70-5. The purpose of this article is to explain the provisions of this new law.

1. What does this law prohibit?

This law prohibits also prohibits officers and employees of governmental entities from intentionally performing any prohibited political activity on "compensated time" and from intentionally misappropriating any governmental property or resources by engaging in any prohibited political activity for the benefit of any campaign for elective office or any political organization. The law does not prohibit people from engaging in political activity voluntarily off duty, without governmental compensation. Specific prohibitions include the following:

  • No officer or employee shall intentionally perform any prohibited political activity during any compensated time.

  • No office or employee shall intentionally use any property or resource of the governmental entity in connection with any prohibited political activity.

  • No officer or employee shall intentionally require any other officer or employee to perform any prohibited political activity (i) as part of that officer or employee's duties, (ii) as a condition of employment, or (iii) during any compensated time off (such as holidays, vacation or personal time off).

  • No officer or employee shall be required at any time to participate in any prohibited political activity in consideration for that officer or employee being awarded additional compensation or any benefit, whether in the form of a salary adjustment, bonus, compensatory time off, continued employment or otherwise, nor shall any officer or employee be awarded additional compensation or any benefit in consideration for his or her participation in any prohibited political activity.


2. How does this law define an "officer" and an "employee"?

5 ILCS 430/70-5 of the new ethics legislation defines "officer" as an elected or appointed official, regardless of whether the official is compensated. An "employee" is defined as a "full-time, part-time, or contractual employee." Remember, however, that independent contractors are not contractual employees, so they are not barred from receiving gifts under this law.

3. What is "compensated time"?

The statute defines "compensated time" as any time worked by or credited to an employee that counts toward any minimum work time requirement imposed as a condition of employment, but does not include any designated holiday or any period when the employee is on a leave of absence. 4 ILCS 430/1-5.

4. Does "compensated time" include vacation, personal, or compensatory time off?

No. If an employee wants to voluntarily engage in political activities while on vacation, personal or compensatory time off, he or she may do so.

5. What is a "prohibited political activity"?

The following constitute prohibited political activities:

  1. Preparing for, organizing, or participating in any political meeting, political rally, political demonstration, or other political event.
  2. Soliciting contributions, including but not limited to the purchase of, selling, distributing, or receiving payment tickets for any political fund-raiser, political meeting, or other political event.
  3. Soliciting, planning the solicitation of, or preparing any document or report regarding anything of value intended as a campaign contribution.
  4. Planning, conducting, or participating in a public opinion poll in connection with a campaign for elective office or on behalf of a political organization for political purposes or against any referendum question.
  5. Surveying or gathering information from potential or actual voters in an election to determine probable vote outcome in connection with a campaign for elective office or on behalf of a political organization for political purposes or for or against any referendum question.
  6. Assisting at the polls on election day on behalf of any political organization or candidate for elective office or for or against any referendum question.
  7. Soliciting votes on behalf of a candidate for elective office or a political organization or for or against any referendum question or helping in an effort to get voters to the polls.
  8. Initiating for circulation, preparing, circulating, reviewing, or filing any petition on behalf of a candidate for elective office or for or against any referendum question.
  9. Making contributions on behalf of any candidate for elective office in that capacity or in connection with a campaign for elective office.
  10. Preparing or reviewing the responses to candidate questionnaires.
  11. Distributing, preparing for distribution, or mailing campaign literature, campaign signs, or other campaign material on behalf of any candidate for elective office or for or against any referendum question.
  12. Campaigning for any elective office or for or against any referendum question.
  13. Managing or working on a campaign for elective office or for or against any referendum question.
  14. Serving as a delegate, alternate, or proxy to a political party convention.
  15. Participating in any recount or challenge to the outcome of any election.


Please contact us should you have additional questions regarding this new law.

***************************************************************************************************

AN ORDINANCE IMPLEMENTING THE PROVISIONS OF THE STATE OFFICIALS AND EMPLOYEES ETHICS ACT (5 ILCS 430/1-1 ET SEQ.) FOR THE __________________, ________ COUNTY, ILLINOIS

WHEREAS, the Illinois General Assembly has enacted the State Officials and Employees Ethics Act, 5 ILCS 430/1-1 et seq., ("Act") which is a comprehensive revision of the state statutes regulating ethical conduct, political activities and the solicitation and acceptance of gifts by state officials and employees; and
WHEREAS, pursuant to Section 70-5 of the Act (5 ILCS 430/70-5), all units of local government and school districts are required to adopt an ordinance or resolution regulating the political activities of, and the solicitation and acceptance of gifts by, their respective officers and employees, "in a manner no less restrictive" than the provisions of the Act, on or before May 19, 2004; and
WHEREAS, the _________________ desires to come into compliance with the provisions of the Act.
NOW, THEREFORE, BE IT ORDAINED BY THE _______________, ______ COUNTY, ILLINOIS, AS FOLLOWS:

SECTION 1:
A. The regulations of Sections 5-15 (5 ILCS 430/5-15) and Article 10 (5/ILCS 430/10-10 through 10-40) of the State Officials and Employees Ethics Act, 5 ILCS 430/1-1 et seq., (hereinafter referred to as the "Act"" in this Section) are hereby adopted by reference and made applicable to the officers and employees of this governmental entity to the extent required by 5 ILCS 430/70-5.

B. The solicitation or acceptance of gifts prohibited to be solicited or accepted under the Act, by any officer or any employee is hereby prohibited.

C. The offering or making of gifts prohibited to be offered or made to an officer or employee is hereby prohibited.

D. The participation in political activities prohibited under the Act, by any officer or employee is hereby prohibited.

E. For purposes of this Section, the terms "officer" and "employee" shall be defined as set forth in 5 ILCS 430/70-5(c).

F. The penalties for violations of this Section shall be the same as those penalties set forth in 5 ILCS 430/50-5 for similar violations of the Act.

G. This Section does not repeal or otherwise amend or modify any existing enactment which regulates the conduct of officers and employees. To the extent that any such existing ordinances or policies are less restrictive than this Section, however, the provisions of this Section shall prevail in accordance with the provisions of 5 ILCS 430/70-5(a).

H. Any amendment to the Act that becomes effective after the effective date of this Section shall be incorporated into this Section by reference and shall be applicable to the solicitation, acceptance, offering and making of gifts and to prohibited political activities. However, any amendment that makes its provisions optional for adoption shall not be incorporated into this Section by reference without formal action by this governmental entity.

I. If the Illinois Supreme Court declares the Act unconstitutional in its entirety, then this Section shall be repealed as of the date that the Illinois Supreme Court's decision becomes final and not subject to any further appeals or rehearings. This Section shall be deemed repealed without further action if the Act is found unconstitutional by the Illinois Supreme Court.

J. If the Illinois Supreme Court declares part of the Act unconstitutional but upholds the constitutionality of the remainder of the Act, or does not address the remainder of the Act, then the remainder of the Act as adopted by this Section shall remain in full force and effect; however, that part of this Section relating to the part of the Act found unconstitutional shall be deemed repealed without further action by this governmental entity.

SECTION 2: A violation of any provision of this Ordinance shall be punished through the bringing of a quasi-criminal judicial complaint by an attorney chosen in the manner provided by law for this governmental entity. That prosecutor shall utilize prosecutorial discretion in enforcing this Ordinance and may seek such penalties for a violation of this Ordinance as are allowed to be sought under local or state law.

SECTION 3: If any section, paragraph, clause, or provision of this Ordinance shall be held invalid, the invalidity thereof shall not affect any of the other provisions of this Ordinance.

SECTION 4: All Ordinances in conflict herewith are hereby repealed to the extent of such conflict. All previous Ordinances adopting the Gift Ban Act or its provisions are hereby repealed.

SECTION 5: This Ordinance shall be in full force and effect immediately as provided by law.

PASSED this __________ day of _____________________, pursuant to a roll call vote as follows:

VOTE AS FOLLOWS:
        YESNOABSENTPRESENT
            
            
            
            
            
            
            
            
            
TOTAL    


APPROVED this __________________ day of _____________, 2004.



________________________________________
ATTEST:

_____________________________


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