Legal & Legislative Notes

by Robert A. Stuart General Counsel

Park Districts having suggestions for legislation to be presented to the 80th General Assembly in 1977 should immediately send their suggestions to the Springfield office of the Association or to the office of the General Counsel so that the same may be submitted to the Legislative Committee for consideration and the preparation of the preliminary draft. In the event drafts of such legislation are prepared by the attorneys for the local board, such drafts should be presented through the office of the General Counsel for review prior to submission to the Legislative Reference Bureau or the House or Senate sponsor.

STATEMENTS OF ECONOMIC INTERESTS MUST BE FILED BY CANDIDATES FOR PARK DISTRICT ELECTION

Article 4A of the Illinois Governmental Ethics Act (added by P.A. 77-1806 approved January 24, 1972) (Ill. Rev. Stats. 1975, Chapt. 127, Section 604A-101, et seq.) requires all candidates for park district office to file verified written statements of economic interests with the County Clerk at, or prior to, their filing of nominating petitions with the Secretary of the Park Board.

Section 4A-101 provides as follows:

"The following persons shall file verified written statements of economic interests, as provided in this Article:

. . . (g) Persons who are elected to an office ... in a unit of local government as defined by the Illinois Constitution, and candidates for nomination or election to such office ..."

Section 4A-105 provides:

" ...

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

After July 1, 1972 statements must also be filed as follows:

(a) A candidate for elective office shall file his statement at the time he takes the action necessary under the laws of this State to attempt to qualify for nomination, election, or retention to such office if he has not filed a statement in relation to the same unit of government within a year preceding such action . . ."

Section 4A-106 provides as follows:

The statements of economic interests required of persons listed in items (g) . . . of Section 4A-101 shall be filed with the county clerk of the county in which the person making the statement resides . . .

All statements of economic interest filed under this Section shall be available for examination and copying by the public at all reasonable times. Each person examining a statement must first fill out a form prepared by the Secretary of State identifying the examiner by name, occupation, address and telephone number, and listing the date of examination and reason for examination. The Secretary of State shall supply such forms to the county clerks annually and replenish such forms upon request.

. . . county clerk, . ... shall promptly notify each person required to file a statement under this Article of each instance of an examination of his statement by sending him a duplicate original of the identification form filled out by the person examining his statement."

Section 4A-107 provides:

"Any person required to file a statement of economic interests under this Article who willfully files a false or incomplete statement shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary for a term not to exceed one year, or both."

Forms for the filing of the "Statement of Economic Interests" may be secured from the office of the County Clerk. To facilitate and insure the filing of such statements by candidates it is suggested that the Secretary of the Park District secure a supply of these forms to be given to each candidate in the event he has not filed his statement as required. Candidates filing nominating petitions with the Secretary of the Board of the Park District should be required to file a receipt, or statement from the County Clerk, verifying the fact that such Statement of Disclosure has been filed prior to the filing of the nominating petition. Failure to file the statement as required under the Illinois Governmental Ethics Act will result in the disqualification of the candidate to hold office in the event of his election.

It should be noted also from the foregoing that those candidates who are running for re-election and have filed their statement as required under Section 4A-105 on April 30 of 1976 are not required to file another statement at the time of filing their nominating petitions. However, it must be borne in mind that each park district commissioner must file a statement on April 30 of each year, unless he has already filed a statement in relation to the same unit of government in that

Illinois Parks and Recreation 8 January/February, 1977

calendar year. Thus, those newly elected commissioners who have filed their statement at the time of filing their nominating petition in 1977 will not be required to re-file on April 30 in this calendar year.

PROVISIONS OF PARK DISTRICT CODE PERTAINING TO TRANSITION TO SEVEN MEMBER BOARDS AND FOUR YEAR TERMS RAISE QUESTIONS

Section 2-10a pertaining to increasing the size of the Board of Commissioners from 5 to 7 members and Section 2-12a pertaining to the reduction of the term of commissioners from 6 to 4 years were added by P.A. 79-1031 which became effective October 1, 1976 and P.A. 79-497 which became effective August 25, 1975. The enactment into law as a part of The Park District Code of these two provisions has raised a number of questions which are being asked by park districts throughout the State. It appears obvious that when each of these provisions was drafted by the Legislative Reference Bureau consideration was not given to the possibility that the park board would exercise its authority to increase the size of the board and decrease the term of the commissioners at the same time. Where the authority granted under either of these two Sections alone is exercised by the board, no particular problem arises. However, because of the language in the Sections a possible conflict is created when the authority under both of the Sections is exercised at the same time.

It should be noted that the authority granted under each of these two Sections is clearly permissive only and not mandatory and no board is required under the provisions to increase the size of its board or to reduce the length of the term of its commissioners unless in the discretion of the board alone either acting by the adoption of its resolution or as the result of a referendum it desires or is required to do so.

Section 2-10a of The Park District Code provides as follows:

"Any district may provide by referendum, or by resolution of the board, that the board shall be comprised of 7 commissioners. Any such referendum shall be initiated and held in the same manner as is provided by Section 28-4 of The Election Code with respect to actions authorized to be taken by referendum by units of local government under Article VII of the Constitution, except that such referendum may be held only at the first regular election, as defined in Article 1 of The Election Code, occurring at least 30 days after the filing of the petition requesting such referendum. If a majority of the votes cast on the proposition is in favor of the 7-member board, or if the board adopts a resolution stating that it is acting pursuant to this Section in order to create a 7-member board, then the following transition schedule shall be applied: At the election of commissioners next following by at least 60 days the date on which the proposition to create a 7-member board was approved at referendum or by resolution, the number of commissioners to be elected shall be 2 more than the number that would otherwise have been elected. If this results in the election of 4 commissioners at that election, one of the 4, to be determined by lot within 30 days after the election, shall serve for a term of 4 years instead of 6 years, so that his term will expire in the same year in which the term of only one of the incumbent commissioners expires. Thereafter all commissioners shall be elected for 6-year terms as provided in Section 2-12.

In any district where a 7-member board has been created pursuant to this Section, whether by referendum or by resolution, the number of commissioners may later be reduced to 5, but only by a referendum initiated and held in the same manner as prescribed in this Section for creating a 7-member board. No proposition to reduce the number of commissioners shall affect the terms of any commissioners holding office at the time of the referendum or to be elected within 60 days of the referendum."

Section 2-12a provides as follows:

"Any district may provide, either by resolution of the board or by referendum, that the term of commissioners shall be four years rather than six years. Any such referendum shall be initiated and held in the same manner as is provided in Section 28-4 of The Election Code with respect to actions authorized to be taken by units of local government under Article VII of the Constitution.

If a majority of the votes cast on the proposition is in favor of a 4-year term for commissioners, or if the Board adopts a resolution stating that it is acting pursuant to this Section to change term of office from six years to four years, commissioners thereafter elected, commencing with the first regular park district election at least 60 days after the date on which the proposition for 4-year terms was approved at referendum or by resolution, shall be elected for a term of four years. In order to provide for the transition from 6-year terms to 4-year terms, if two commissioners are to be elected at the first such election and if the term of only one commissioner is scheduled to expire in the next odd-numbered year after the year of such election, of the two commissioners elected, one shall serve a 2-year term and one a 4-year term, to be determined by lot between the two persons elected within 30 days after the election."

An analysis of the foregoing two Sections presents the following problems. In the event the board adopts its resolution to reduce the 6 year terms of its commissioners to 4 year terms, the transition schedule set forth in the second paragraph Continued on Page 24

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LEGAL AND LEGISLATIVE ...

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of Sec. 12a clearly establishes the manner in which the terms of the two commissioners elected shall be determined. That determination is made by lot determined within 30 days after the election under the provisions of that Section. Assuming that the authority granted under that Section is exercised by the board and at a subsequent date the authority granted under Section 2-10a is likewise exercised by the board by resolution, or as the result of a referendum, it would appear that despite the action previously taken under Section 2-10a the members of the newly created 7 member board would then be elected for 6 year terms under Paragraph 2 of that Section.

However, in the event the authority granted under each of the said Sections is exercised by resolution adopted at the same time so that a 7 member board is created by the result of the election occurring more than 60 days following the adoption of the resolution and the length of term of the members is reduced by similar action by resolution, the question becomes that as to whether the candidates run for a specific lesser term without respect to the staggering of terms and whether or not the determination of the length of term of the new elected members shall be established or determined by lot.

While the answer to this question is subject to judicial interpretation, it would appear from the language of the Sections as read together that the appropriate manner of determining the length of term of the newly elected commissioners would be by lot within a period of 30 days following the election.

Any board which has exercised its authority under both of these Sections at the same time should follow closely the written opinion of its attorney, inasmuch as the proper composition of the board might well ultimately affect future bonding questions.

RECENT DECISIONS

Dr. Martin Luther King, Jr. Movement, Inc., et al. vs. City of Chicago, et al. (No. 76 C 2923) (United States District Court N.D. Ill. E.D.) In an opinion filed September 13, 1976 the United States District Court, Northern District of Illinois, held that the plaintiffs had a constitutional right to proclaim in a particular park in the City of Chicago their protest against events which in their opinion had deprived Negro citizens of their constitutional rights in the park area; to disseminate their views to an audience composed of Caucasians who lived in the park area, and to call their attention to plaintiffs' dissatisfaction, solicit their support and bring action from public authorities. The Court in that opinion also held that race, color, national origin, sex or religion cannot be considered by those who exercise state regulatory powers (i.e. park districts) and, also, that in determining the question of discrimination by the state or a municipality because of race, color or condition the Court must consider the matter of not only whether equal protection of the laws has been denied in express terms, but also whether it has been denied in substance and in effect. The language of the opinion also appears to establish the rule that the mere threat or possibility of violence or hostility is not a sufficient basis upon which to deny the use of a public street or park to any group or organization.

The Court in this case, while holding that the City of Chicago in denying the plaintiffs a parade permit upon a certain street denied the plaintiffs their Constitutional rights, found that the Chicago Park District had not been guilty of such a violation because of the fact that they had previously scheduled another event involving the youth of the community and the fact that plaintiffs had not made an application for a permit to use the park.

This decision does raise a number of questions with respect to the extent of legislative discretion which a park district may exercise in controlling the use of its facilities.

Dunbar vs. Reiser (1 Ill. Dec. 89) (356 N.E. 2d 89) In an opinion filed October 1, 1976 the Supreme Court of Illinois has held that the filing of a Complaint within six months from the date of injury, or the accrual of the cause of action, satisfied the notice requirement under the provisions of the Tort Immunity Act (Ill. Rev. Stats. 1975, Ch. 85, Sec. 8-102).

In a well written dissenting opinion Justice Ryan, citing the case of Housewright vs. City of LaHarpe(51 Ill. 2d 357) said:

"Section 8-102 is unambiguous and clearly expresses the legislative intent that a local public entity be given certain information, in writing, within the time provided and we hold that the allegation of actual notices does not satisfy the statutory requirement of written notice." Mr. Justice Ryan then proceeded to distinguish the cases relied upon in the majority opinion.

City of Joliet vs. Bosworth (1 Ill. Dec. 355, 356 N.E. 2d 543). In its opinion filed October 1, 1976 the Supreme Court of Illinois has held that the Constitutional prohibition contained in the Illinois Constitution precluding counties from recovering costs of tax collection from local taxing bodies does not violate the Constitutional uniformity and equal protection requirements.

In this opinion the Court affirmed the judgment of the Circuit Court of Will County holding that a resolution adopted by the Will County Board imposing a 1% charge for tax collection was invalid as being contrary to the provisions of Section 9(a) of Article VII of the 1970 Constitution of Illinois.

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