Robert A. Stuart

Legal & Legislative Notes

by Robert A. Stuart

Objections to park district nominating petitions heard by county officers electoral board. Contrary to the article which appeared in the last edition of "Illinois Parks and Recreation" objections filed to nominating petitions of candidates for election to park district Boards of Commissioners are heard by the County Officers Electoral Board rather than by the park district Board of Commissioners.

The Park District Code provides in Section 2-13 that:

"The park board shall conduct the election, establish precincts and polling places, and appoint the judges of election and fix their compensation. . . . but whenver all or any part of the territory embraced in any district is within the limits of any city, village or incorporated town which is subject to the provisions of Article 6, 14 and 18 of 'The Election Code,' the provisions of those Articles shall apply at all elections held in the district throughout so much of the district as is within the limits of the city, village or incorporated town. The election commission shall, however, certify to the board of the district the results of the election within the portion of the district under its supervision and the board of the district shall then canvass the entire returns . . ."

It would therefore appear that the park board had full authority to conduct the election establishing all necessary rules and regulations, including the hearing of objections to nominating petitions filed.

It has been held, however, that where The Park District Code fails to make provision concerning election procedures that the Election Code shall apply. Section 10-9.3 (Ch. 46, Ill. Rev. Stats. 1971) of the Election Code provides as follows:

"The following electoral boards are designated for the purpose of hearing and passing upon the objector's petition described in Section 10-8.

3. The county officers electoral board to hear and pass upon objections to the nominations of candidates for county and park district offices, and to hear and pass upon objections to the nominations of candidates for offices to be voted for by the electors of a division coterminous with or less than a county and other than a city, village or incorporated town or township, shall be composed of an associate judge resident in the county, to be designated by the chief judge, the county clerk, and the State's attorney of the county, of whom the judge shall be the chairman."

The Park District Code sets forth no specific election procedures to be followed in the conduct of park district elections. This fact has become increasingly clear from the great number of questions which have arisen in the various districts throughout the state during the conduct of the election procedures in 1973. As a result, several amendments to The Park District Code have been introduced in the present session of the General Assembly. In order to remedy much of the confusion which exists in the various park districts concerning election procedures the recommendation has been made to the Board of Directors of the Illinois Association of Park Districts that a special committee of the Legislative Committee consisting of lawyers who are dealing with park district election procedures be appointed to prepare and submit for introduction at the next session of the General Assembly a more complete article to be incorporated into the Code establishing definite procedures for the conduct of succeeding park district elections. The work of such a committee must be coordinated with the work of the Uniform Election Laws Committee of the General Assembly which is proposing numerous changes in the times for the holding of municipal elections in the state.

All park district commissioners and employees earning more than $20,000.00 must file statement of economic interests. The Illinois Governmental Ethics Act, Section 4A-105 provides as follows:

"... On April 30 of each year after 1972 a statement (of economic interests) must be filed by each person whose position at that time subjects him to to the filing requirements of Sections 4A-101 unless he has already filed a statement in relation to the same unit of government in that calendar year...."

In the event that any commissioner or employee of a park district earning more than $20,000.00 per year has not filed such a statement, he should immediately do so to avoid the possibility being declared ineligible to continue to hold his office or position of employment.

Court decisions interpreting Local Governmental and Governmental Employees Tort Immunity Act Chapter

Illinois Parks and Recreation 10 May/June, 1973

85 (Ill. Rev. Stats. 1971) Sections 1-101—.10-101. Several court decisions involving the construction of the provisions of the Governmental Immunity Act have been handed down by the courts of Illinois which are of interest and importance to park districts.

In the case of Gloria Yeater, Plaintiff-Appellant v. Decatur Park District, et al., Defendants-Appellees, the Appellate Court of the Fourth District held that a park district is not liable as a "local public entity" within the meaning of the "Local Governmental and Governmental Employees Tort Immunity Act" where the act or omission of its agent or employee did not constitute willful and wanton negligence.

In that case, the Plaintiff filed a suit against the park district and an employee of the district for damages based upon the allegation of the park district's failure to provide reasonable supervision over persons using a skating rink and negligently omitting the enforcement of reasonable safety regulations. The facts involved an employee of the district (who was not on duty at the time) who was skating backwards contrary to the rules of the park district and struck the plaintiff who was teaching a skating class at the rink.

The Appellate Court upheld the action of the lower court in dismissing the complaint as to the park district on the ground that there had been no allegation of willful and wanton negligence on the part of the district. The court in the Yeater case (an unpublished opinion) said:

". .. Subsequent to the Molitor case (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89), and the cases following it which abolished the doctrine of sovereign immunity of the state and its subsidiary municipal agencies, in 1965 the legislature of Illinois enacted the 'Local Governmental and Governmental Employees Tort Immunity Act,' relating to the tort immunity of local public entities, including park districts and their employees. (Ill. Rev. Stat. 1969, ch. 85, pars. 1-101 et seq.)

While such statute is in derogation of the common law as previously enunciated by the Supreme Court of this State and must be strictly construed, it places no duty on municipal authorities, such as park districts, to supervise an activity on or use of its public property. To the contrary, paragraph 3-108 of that Act relieves such local public entity and its employee from 'liability for an injury caused by a failure to supervise an activity on or the use of any public property,' except only in the use for purposes of swimming and as otherwise provided in that Act. We find no exception expressed which is applicable here.

While this court may or may not agree that this statute is 'good' public policy, it is the public policy of this State as legislated. The fact that the park district here may have voluntarily undertaken a duty of supervision by rules and regulations and posting of notices does not make it liable for deficiencies in that supervision. The only cases interpreting this statute (Fustin v. Board of Education of Community Unit District No. 2 (Fifth Dist. 1968), 101 Ill. App. 2d 113, 242 N.E.2d 308; Woodman v. Litchfield Community School District No. 12 (Fifth Dist. 1968), 102 Ill. App. 2d 330, 242 N.E.2d 780; and Mancha v. Field Museum of Natural History (First Dist. 1972), 5 Ill. App. 3d 699, 283 N.E.2d 899), hold that there is no liability on a local public entity for its acts or that of its employees unless such acts constitute willful or wanton negligence (Section 2-202 of the Tort Immunity Act, Ill. Rev. Stat. 1969, ch. 85, par. 2-202). . .."

In two cases, Housewright, et al. v. The City of LaHarpe (51 Ill. 2d 357) and Fanio v. John W. Breslin Co. (51 Ill. 2d 366), the Supreme Court of Illinois upheld the constitutionality of Section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act which provides that:

"... Within 6 months from the date that the injury or cause of action . . . was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment . . . caused the injury, must personally serve in the Office of the Secretary or Clerk .. . for the entity against whom or against whose employee the action is contemplated a written statement . . . giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any...."

Section 8-103 provides: 'If the notice under Section 8-102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees . . . shall be dismissed and the person to whom such cause of injury [sic] accrued shall be forever barred from further suing'."

However, the court in those decisions further held that in the event the municipality (or park district) had secured liability insurance to insure against any such loss or liability, the said provision shall have been waived and failure to serve such notice upon the municipality or park district within the said 6 months period does not constitute a valid defense to the action.

In reaching this decision, the court in those cases referred to the provisions of Section 9-103 of the Tort Immunity Act finding that the "defenses" of the notice requirement under Section 8-102 and the one year limitation period are waived. Section 9-103 provides:

"(a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Such insurance shall be carried with a company authorized by the Department of Insurance to write such coverage in Illinois. The expenditure of funds of the local public entity to purchase such insurance is proper for any local public entity, (b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act."

Thus, a park district which has secured liability insurance to insure against tort claims may not validly assert the defense granted to it by Chapter 85, Section 8-102 and the one year limitation period but instead can only rely upon the statutory limitation period of two years.

Illinois Parks and Recreation 11 May/June, 1973