proposed legislation on clarifying the intent of open ... · proposed legislation on clarifying the...

Proposed Legislation onClarifying the intent of Open Space Assessment

as Proposed by the County Assessment Officers Association of Illinois

1 AN ACT concerning revenue.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 "Section 5. The Property Tax Code is amended by changing

5 Section 10-155 as follows:

6 (35 ILCS 200/10-155)

7 Sec. 10-155. Open space land; valuation. In all counties,

8 in addition to valuation as otherwise permitted by law, land

9 which is used for open space purposes and has been so used for

10 the 3 years immediately preceding the year in which the

11 assessment is made, upon application under Section 10-160, shall

12 be valued on the basis of its fair cash value, estimated at the

13 price it would bring at a fair, voluntary sale for use by the

14 buyer for open space purposes.

15 Land is considered used for open space purposes if it is

16 more than 10 acres in area and:

Proposed Legislation on Clarifying the Intent of Open Space Assessment County Assessment Officers Association of Illinois

S

I (a) is actually and exclusively used for maintaining

2 or enhancing natural or scenic resources,

3 (b) protects air or streams or water supplies,

4 (c) promotes conservation of soil, wetlands, beaches,

5 or marshes, including ground cover or planted perennial

6 grasses, trees and shrubs and other natural perennial

7 growth, and including any body of water, whether man-made

8 or natural,

9 (d) conserves landscaped areas, such as public or

10 private golf courses,

11 (e) enhances the value to the public of abutting or

12 neighboring parks, forests, wildlife preserves, nature

13 reservations, sanctuaries, or other open spaces, or

14 (f) preserves historic sites.

15 Land is not considered used for open space purposes if it

16 is used primarily for residential purposes, or if it is improved

17 with hotels or lodging facilities, club houses, banquet

18 facilities, tennis or other courts, swimming pools, commercial

19 or industrial facilities, retail shops, or land and parking

20 areas serving any of those improvements. Such land shall be

21 valued at fair cash value in accordance with Section 9-145, or


1 in accordance with a classification ordinance adopted pursuant

2 to Section 9-150 of the Property Tax Code, and shall not be

3 valued as open space land. The General Assembly finds and

4 declares that this amendatory Act of the 97th General Assembly

S is a clarification of existing law and is an indication of its

6 previous intent in enacting and amending this Section.

7 If the land is improved with a water-retention dam that is

8 operated primarily for commercial purposes, the water-retention

9 dam is not considered to be used for open space purposes despite

10 the fact that any resulting man-made lake may be considered to

11 be used for open space purposes under this Section.

12 (Source: P.A. 95-70, eff. 1-1-08.)


a-

Benefits

• After a ruling by the Property Tax Appeal Board, all buildings on golf course properties thatare assessed as open space are assessed at $0; application of this interpretation of thedecision will result in millions of dollars in tax savings for such golf courses, includingproperty tax reductions in excess of 90% for large private country clubs with extensiveclubhouse and banquet facilities.

• As a result of this ruling, all other properties within the same taxing districts as thosecountry clubs will see increased property tax bills, as the millions of tax savings gained bygolf course properties will be paid by other taxpayers.

This statutory change is intended to clarify that land with certain types improvements willnot qualify for open space valuation, thus the improvements can be assessed.

• This bill would declare that it was not the intent of the general assembly to provide golfcourses with such a significant tax break at the expense of other taxpayers.

For More Information, Contact:

• Tim Bramlet, Legislative Agent .............................. (217) 741-4496County Assessment Officers Association of Illinois

• Marty Paulson, Lake County CCAO ........................ (847) 377-2191Open Space Legislation Coordinator for the CAOA

• Mark D. Armstrong, Kane County CCAO.............................................................(630) 208-3818Chairman of the Legislative and Policy Committee of the CAOA

• Cindi Lotz, Fayette County CCAO ........................................................................(618) 283-5020President of the County Assessment Officers Association of Illinois


N

U

Proposed Legislation onRevising Board of Review Partisan Requirements

as Proposed by the County Assessment Officers Association of Illinois




4 Section 5. The Property Tax Code is amended by changing

5 Section 6-15 and Section 6-34 as follows:

6 (35 ILCS 200/6-15)

7 Sec. 6-15. Political makeup and compensation. No more than

8 2 members of a Pèe board of review appointed under Section 6-5

9 shall be eonoiot of 2 mcmbcro affiliated with the same political

10 party polling thc highest vote for any county offioc in thc

11 county, and onc member of the party polling the occond highest

12 vote for the came county office at the loot general election

13 prior to any appointment made under this Section. Each member of

14 the board of review shall receive an annual salary to be fixed

15 by the county board and paid out of the county treasury.

16 (Source: P.A. 86-905; 87-1189; 88-455.)

17 (35 ILCS 200/6-34)

Proposed Legislation on Revising Board of Review Partisan Requirements Page 1County Assessment Officers Association of Illinois

I

1 Sec. 6-34. Political makeup. If the board of county

2 commissioners appoints a board of review as prescribed in

3 Section 6-30, no more than 2 members of the board of review

4 shall lee consist of 2 members affiliated with the same political

5 party _polling the highest vote for any county office in thc

6 county and one member of the party polling the second highest

7 vote for the sane county office at the last general election.

8 (Source: P.A. 90-552, eff. 1-1-99.)

9 Section 99. Effective date. This Act takes effect January

10 1, 2014.


Benefits

• Currently, appointed boards of review in both commission and non-commission countieshave a partisan requirement. Using the highest vote-getter in the most recent contestedpartisan county election, two board members must be appointed from the political party ofsaid highest vote getter, and one member must be appointed from the second highest votegetter in the same race. (See Attorney General Opinion 91-020, attached, for analysis ofthis issue)

• In a two-party system, this will mean that that the three board of review will be from thosetwo parties. However, it does not permit otherwise qualified non-partisan individuals frombeing eligible for appointment to the board of review.

• Where there are more than two parties, the statute appears to have consequences thatwere not intended. For instance, in a recent election in a large suburban county, one of thetwo major parties did not nominate a candidate, but a third party did so. Eventually, thethird party candidate was removed from the ballot by electoral board action. However, hadthis not taken place and had the major-party candidate been the highest vote-getter in thecounty, then the statute as it currently exists would have made it unlawful to appointsomeone from one of those majority parties to the Board of Review.

• This statutory change is intended to protect taxpayers by no longer excluding thoseaffiliated with certain political parties or those with no partisan affiliation.

For More Information, Contact:

Tim Bramlet, Legislative AgentCounty Assessment Officers Association of Illinois

. Mark D. Armstrong, Kane County CCAO .............................Chairman of the Legislative and Policy Committee of the CAOA

• Cindi Lotz, Fayette County CCAO ...........................................................President of the County Assessment Officers Association of Illinois

(217) 741-4496

(630) 208-3818

(618) 283-5020


FILE NO.

COUNTIES:DeterininatAffiliaticBoard of I

HonorableGreene CotGreene CotCarrolltor

Dear Mr. C

section 8

120, par.

regarding

tat. 1989, ch.

ROLAND W. BIJRRISATTORNEY GENERALSTATE OF ILLINOIS

April 25, 1991

"Ci * The board of review shall at alltimes consist of 2 members affiliated with thepolitical party polling the highest vote for anycounty office in the county, and one member ofthe party polling the second highest vote for thesame county office in the county at the lastgeneral election in the county prior to the timeany appointment is made by virtue of this section.

I,

500 South Second Street, Springfield, Illinois 62706 217-782-1090 • TDD 217-785-2771 • FAX 217-782-7046100 West Randolph Street, Chicago, Illinois 60601 312-814-3000 TDD 312-814-7123 • FAX 312-814-3806

Honorable Norbert Goetten -2-

Specifically, you ask whether, in determining the political

affiliation of the members of the board of review, the vote in

either the-election of a resident circuit-judge or an at-large

election for four county board seats may be considered. For

the reasons hereinafter stated, it is my opinion that the

composition of the board of review cannot be based upon either

a judicial or an at-large county board race.

According to the information which you have furnished,

among the officers elected at the November 6, 1990, general

election in Greene County were: county clerk, county

treasurer, county sheriff, four county board members and a

resident circuit judge. The highest vote total was recorded

for the unopposed candidate for the office of county

treasurer. In opinion 3-1425, issued April 13, 1979 (1979 Ill.

Att'y. Gen. op. 46), however, Attorney General Scott advised

that because one member of the board of review must be

affiliated with the political party polling the Second highest

vote for the same office as the party polling the highest vote,

the political affiliation of board of review members must

neccessarily be based upon a contested election. Therefore,

although the unopposed candidate for treasurer polled the

highest number of votes, that race cannot be considered in

determining the board of review membership.

The next highest vote in a two-candidate race for a

single office in the county was polled by a candidate for


resident circuit judge. You question whether this was an

election for a "county office," for purposes of section 8 of

the Revenue Act of 1939.

Article VII, sections 3 and 4 of the 1970 Constitution

(Ill. Const. 1970, art. VII, secs. 3, 4) provide for the

selection of county board members and, in each county, a

sheriff, county clerk, treasurer, coroner, recorder, assessor,

auditor "and such other officers as provided by law or by

county ordinance." These are county offices and comprise the

group of officers responsible for governing the county. In

contrast, resident circuit judges, even though elected within

each county, are elected as officers in the judicial branch of

State government pursuant to Article VI of the constitution.

(Ill. Const. 1970, art. VI, sec. 7,12.) There is only one

circuit court in each judicial circuit, and a resident circuit

judge serves the entire circuit, not just the county from which

he is elected. (Ill. Const. 1970, art. VI, sec. 7(b).)

Further, each circuit judge is subject to assignment by the

Supreme Court to any court in the State. (Ill. Const. 1970,

art. VI, sec. 15.) Based upon these provisions, it is my

opinion that the office of resident circuit judge is a State,

not a county, office. consequently, the election of a resident

circuit judge may not be considered in determining the

political affiliation of board of review members.

In the November 6, 1990, general election in Greene

County, four county board seats were filled at-large. Five

Honorable Norbert Goetten -4-.

candidates ran for four seats. A candidate affiliated with one

major party polled 4575 votes, and four other candidates, all

of whom were affiliated with the other major party, polled

4564, 4158, 3357, and 3198, respectively. The party with which

the single candidate was affiliated claims to have polled the

highest number of votes for a "county office", for purposes of

section 8 of the Revenue Act of 1939. It is my opinion,

however, that this race also cannot be used as the basis for

determining the political affiliation of the board of review.

Section 8 of the Revenue Act of 1939 requires that 2

members of the board of review be affiliated with the party

polling the highest vote for a county office, and that one

member be affiliated with the party polling the second highest

vote for the same office. In this instance, the candidate

receiving the highest vote total cannot be said to have been

running for the same office as the other four candidates. All

five were running for election to any one of four offices, and

four of the five were, in fact, elected to four different

offices. Since both of the candidates who polled the highest

vote totals were elected to separate offices, they cannot be

said to have stood for election to the same office.

Implicit in the language of section 8 is the

requirement that the political affiliation of the members of

the board of review be based upon a race for a single county

office for which there are two or more candidates running.


Several candidates running for multiple offices are not running

for the same office. Consequently, it is impossible for one

party to poll the highest vote and another the second highest

vote for the same office, in those circumstances, just as such

a result is impossible where one candidate runs unopposed for

an office. Therefore, it is my opinion that an at-large

election for multiple county board seats cannot be considered

in effectuating the provisions of section 8 of the Revenue Act

of 1939, as they relate to the composition of the board of

review.

Respectfully yours,

ROLM4D W. BURRISATTORNEY GENERAL

Proposed Legislation onEliminating County Board Member Conflicts of Interest




4 Section 5. The Property Tax Code is amended by changing

5 Section 6-5 as follows:

6 (35 rLCS 200/6-5)

7 Sec. 6-5. Appointed boards of review. In counties under

8 township organization with less than 3,000,000 inhabitants in

9 which no board of review is elected under Section 6-35, there

10 shall be an appointed board of review to review the assessments

11 made by the supervisor of assessments. When there is no existing

12 appointed board of review, the chairman of the county board

13 shall appoint, with approval of the county board, 3 citizens of

14 the county to comprise the board of review for that county, 2 to

15 serve for a one year term commencing on the following June 1,

16 and one to serve for a 2 year term commencing on the same date.

17 When an appointed board of review already exists, successors

18 shall be appointed and qualified to serve for terms of 2 years

I

Proposed Legislation on Eliminating County Board Member Conflicts of Interest Page 1

1 commencing on June 1 of the year of appointment and until their

2 successors are appointed and qualified. Vacancies shall be

3 filled in like manner as original appointments, for the balance

4 of the unexpired term. Members of the county board a-y are not

5 eligible to be appointed to the board of review after January 1,

6 2014, except that sitting county board members who were

7 appointed prior to January 1, 2014 may continue to serve and be

8 reappointed to a county board of review. A member of the board

9 of review may be reappointed. No person may serve on the board

10 of review who is not qualified by experience and training in

11 property appraisal and property tax administration.

12 (Source: P.A. 86-905; 87-1189; 88-455.)

13 Section 99. Effective date. This Act takes effect upon

14 becoming law.

Proposed Legislation on Eliminating County Board Member Conflicts of Interest Page 2

Benefits

• Local government officials are generally ineligible to be appointed to a county board ofreview in non-commission counties due to an inherent conflict of interest (See AttorneyGeneral Opinion S-1459, attached, for analysis of this issue). The principal reason for theincompatibility of these offices is that local government officials who vote on property taxlevies (and thus have an interest in those tax levies) cannot be disinterested third parties inruling on assessment complaints.

However, members of a county board in a non-commission county are eligible forappointment to a county board of review, as specifically provided by statute (See AttorneyGeneral Opinion 5-877, attached, for analysis of this issue). The practice of having countyboard members automatically serve on a board of review was common prior to theadoption of the 1970 constitution. While it is increasingly uncommon, there still exists thepractice of granting county board members seats on the board of review, even thoughcounty board members also vote on one or more tax levies for the very same propertiesupon which they would be called to make a ruling.

This statutory change would provide taxpayer the same protection from conflicts ofinterest relating to county board members that currently exists for all other taxing bodies.

• Recognizing that existing dual office holders may have also amassed years of knowledgethat has value to a Board of Review, the legislation provides for a "grandfather clause" thatpermits existing dual office holders to continue, but prohibits new ones.

Proposed Legislation on Eliminating County Board Member Conflictsof Interest Page 3

/'4)•

WILUAM J. SCOTTATTORNEY GENERAL

STATE OF ILLINOISSPRINGFIELD

I0•

August 20, 1979

This re s yoti'u's4ter requesting an

opinion as toUeso n is prohibited from holding

the offices ofee and camber of the board.of

review simültaa situation is prohibited only

when

oinimt

s involved are incompatible. For the

reasostated, it is my opinion that the

offictrustee and member of the board of

revie•iblé.

Incompatibility betneen offices exists where

the constitution, or a statute, specifically prohibits

the occupant of either of those offices from holding the

other or where the duties of either office are such that

Honorable Kelly D. Long - 2.

the holder of one cannot, in every instance, Properly,fully and faithfully perform all the duties of the other

Office . (People ex rd. Heyer v. Haas (1908), 145 Ill.

App. 283.) I can find no Constitutional or statutory

Prohibition on a township trustee also being a member

of the board of review. The duties of a board of town

trustees are generally set forth in article xiii of

"AN ACT to revise the law in relation to township

organization" (Ill. Rev. Stat. 1977, ch. 139, par.

117 etThe duties of a board of review are set

forth in sections ios, 108a and lOSb of the Revenue Act

of 1939. (Ill. Rev. Stat. 1977, ch. 120, pars. 589,

589.1, 589.2.) In examining the duties of these two offices,

there is a duty which a member of the board of review has

which could prevent the proper performance of his duties

as a township trustee. Section 108b of the Revenue Act of

1939 (Ill. Rev. Stat. 1977, ch. 120, par. 589.2) requires

the board of review to review any assessment made by any

local assessment officer or officers upon written complaint

made by any taxing body and filed with the board within 20

calendar days after the assessment books are delivered to

the board. By operation of this statute, a.memberof the

board of review would have to review an assessment of which

he, as a member of the township board of trustees, a taxingbody, complained

Honorable Kelly D. Long - 3.

Because of this duty, a person could not properly,

fully and faithfully perform his duties as.. both a township

trustee and a member of the board of review. I am there-

fore of the opinion that the offices of township trustee

and member of the board of review are incompatible.

Very truly yours,

ATTORNEY GENERAL

FILE NO

OFFICESCountyAppointwise ToibilityWith tbForestof RevS

RonorabStAte'sLake ccCountyWaukega

Dear Mr

WILLIAM J. EconATTORNEY GENERALSTATE OF ILLINOIS

500 SOUTH SECOND STREETSPRINGFIELD

82708

March 17, 1975

Statutes, 1971, states:

I f 1. No member of a county board, duringthe term of office for which he is elected,may be appointed too accept or hold any officeother than chairman of the county board ormember of the regional planning commission byappointment or election of the board of which.he is a 'eer. Any such prohibited appointmentor election is void. .

Honorable Jack Hoogasian - 2.

several questions arise. Other sections inthe statutes authorize, appointment of countyboard meters to other positions, for sample:Forest Preserve commission, Chairman of theForest Preserve. Board of Review., TownshipSupervisors and the like.

It is to be noted that this specific sectionbecame effective August 17, 1971, and presumablyindicates the latest legislature and intent.The following questions, therefore, arises

1. May a county board member serve in. anyother capacity other than chairman of thecounty board or as ru.ntCy of the regionalplanning commission.

2. May a county 'board meter. during the termof office for which he is elected, resign andbe appointed by that county board to a positionhe otherwise could not serve it he continuedas a county board meter.

Responding to your second question first, I direct

your attention to the general rules of Statutory construction

applicable in Illinois. In construing statutes to give effect

to the intent of the General Assembly, courts will look to the

object and purpose to be subserved by the statute. (Application

of County Collector, 70 Ill. App. 2*3 180, 229 N.E. 3d 497.) The

primary object of statutory construction is to give effect to

the. legislative intent and courts will consider the reason or

necessity for an enactment, the contemporaneous conditions,

Honorable Jack floogasian - 3.

existing circumstances and the object sought to be achieved

by the statute. (Lincoln National Life Insurance Co. v.

McCarthy. 10 Iii. 24 469.) Section 1 of "AN ACT to prevent

fraudulent and corrupt practices in the making or accepting

of official appointments and contracts by public "

(Ill. Rev, stat. 1973. ch. 102. par. 1) was approved and

enacted by the General Assembly of the State of Illinois on

April 9. 1872, and has continued in effect with minor

modifications since that time. It may be assumed accordingly

that the section evidences a long continuing concern of the

Cannel Assembly far predating 1971 that honest and efficient

local governmental units be maintained. In construction of

statutes words should be given the meaning intended by the

lawmakers. (McCarthy, supra.) It is my opinion that the

language 'during the term of office for which he it elected".contained in the Act, prohibits appointment of a county board

meter who has resigned for the purpose of accepting a posit iat

to which he could not have been appointed if be had remained

a county board member. The statute, arnstrued in its entirety.


clearly proscribes use of the power of one public office

to gain access to another public office.

The test of whether a. statute is complete as enacted

by the General Aueeibly is whether it is sufficiently definite

to enable one reading it to know his rights and obligations

thereunder., (Arnolt v City of Highland Park, 52 Ill. 26 27.)

The language of section 1 of the Act is sufficiently definite

to,: give notice of its prohibitions and sanctions to both

county boards and individual board members. the phrase

"during the term of office for which he is elected" would

be superfluous if the General Assembly did not intend toinclude within the statute the situation which your question

suggests. The language reflects the concern of the Assembly

that public duties be discharged efficiently and impartially.

* public office is a public trust and the legislature may

impose on those to whom public office is entrusted such

conditions as it sees fit to secure efficient and impartial

discharge of public duties. (?sople v. Murray, 301 Iii. 349.)

Honorable Jack floogasian - S.

It is consequently my opinion that a county board meter

may not, during the term of office for which he is elected,

resign and be appointed by that county board to a position

to which he could not be appointed if he continued as S

county board member.

In your first question you have asked whether a

county board member may serve in any capacity other than

chairman of the county board or mnmher of the regional

planning commission. My answer to your question will be

limited to a discussion of the offices which you have

specifically mentioned in your letter, i.e.. forest preserve

ccmiesioner, president of the forest preserve commission,

meter of the board of review, and township supervisor.

Pint, with respect to the office of forest preserve

cónniesioner, in counties such as yours, where the boundaries

of the forest preserve district and the county are co-

extensive, the members of the county board automatically

exercise the powers and duties of the forest preserve

commissioners. This power extends specifically from section

3a of "AN ACT to provide for the creation and management

Roncrable Jack Bocgaaian - G.

of forest preserve districts" (Iii .. Rev. Stat. 1973. ch.

57 1/2 par. 3a) which provides in relevant part:

n. . * in case the boundaries of any suchdistrict are co-extensive with the boundariesof any county, city, village, incorporatedtown sanitary district., the corporate authoritiesof such county, city, village, incorporated townor sanitary district shall have and exercisethe powers and privileges and perform the dutiesand functions of the commissioners provided forheroin and in such case no commissioner shall beappointed for such district. * * *"

With respect to the president of the forest preserve

Qnnl5.jon, I have previously held in opinion S-GOB, August 20.

1973,. addressed to you, that in counties under one million

population where the boundaries of the forest preserve district

and the county are coextensive, the president of the forest

preserve commission is chosen by the forest preserve

commissioners. Of course, in your county, the forest preserve

commissioners are by the torte of statute the members of the

county board. However, it should be noted that in choosing

the president of the commission, the commissioners act as

officers of the forest preserve district, a municipal

corporation separate and distinct from the county, and do not

Honorable Jack Roogasian - 7.

act as county board members. . See • Peabody v. Forest Preserve

District, 320 Iii. 454. 462.

incompatibility between offices arises where the

Constitution, or a statute, specifically prohibits the

occupant of either of the offices from holding the other,

or where because of the duties of either office a conflict

of interest may arise, or where the duties of either office

are such that the holder of one cannot in every instance

properly and faithfully perform all the duties of the other.

People ex rel. Meyer v. .!fl' 145 Ill. App. 263.

The only statutory provision which might forbid a

county board enO,er from holding either of these two

positions is section 1 of 'SAN ACT to prevent fraudulent and

corrupt practices ' * (Ill. Rev. Stat. 1973, ch. 102, par.

1) which reads:

"S I. No member of a county board, duringthe term of office for which he is elected, maybe appointed to, accept or bold any office otherthan chairman of the county board or mentor ofthe regional planning commission by appointmentorelection of the board of which he is a member.Any such prohibited appointment or election isvoid. this Section shall not preclude a me"er

Ronorable Jack Roogas tan - S.

of the county board from being selected or fromserving as a member of the Counts personnel Ad-visory Board as provided in Section 12-17.2 of.The Illinois Public Aid code', approved April 11,1967, as amended, or as a member of a CountyExtension Board as provided in section 7 of the'County Cooperative Extension LV' • approved Au-gust 2. 1963, as amended. (emphasis added.)

It must be emphasized that section 1 prohibits a

county board meter from being appointed or elected to another

office (with the stated exceptions) where such appointment

or election is made. by the county board of which he is a

meter. The positions of forest preserve commissioner

and president of the forest preserve commission are not

filled by election or appointment by the county board. The

county board meters constitute the forest preserve commission

by legislative action without election or appointment by the

county board. Also, in the selection of the president of the

forest preserve commission, the county board members are not

performing a duty of the county board, but rather a duty of

the forest preserve caission.

With respect to the members of the board . of review,

however, a different type of problem is presented. Section 8

Ronorable Jack iloogasian — 9.

of the Revenue Act of 1939 (Iii. Rev, stat. 1973, ch. 120,

par. 489) provides:

"5 8. In counties under township organizationcontaining lees than 150,000 inhabitants, andin such counties which have by the lastpreceding federal census reached or exceeded apopulation of 150,000 but in which no board of re-view has heretofore been elected pursuant to Sec-tion 10 of this Act or authorized by referendumas provided in Section 10,, there shall be a boardof review to review the assessments male by thesupervisor of assessments, until June 1, 1914, orthe completion of the review of 1973 assessments,whichever is later, f ha rh)Lr1utn of the countyboard shall be ex-officio chairman of the board

of

review appointed before the effective date of thisamendatory Act of 1973 Spire on June 1. 1974,or upon ccspleticn of the review of 1973 assess-ments, whichever is ister. Before June 1. 1974,the chairman ofthe county board shall appoint,!kttthe approval of the county board. 3 citizens

one yeareto serve

.aN, .saaLat.a.w tIsw £JI. £flacaawLtheir respective successors shall be appointed andqualified in like manner to serve for terms of 2years commencing on June 1 of the year of ap-pointment. Vacancies on the board shall be filledin like manner as original appointments, for thebalance of the unexpired term. Members of the

Act prohibits the reappointment of a mntèr ofthe board of review." (emphasis added.)


By the plain language of section 8, a county board

member may be appointed to the board of review by the county

board chairman with the advice and consent of the county board.

Thus, section 8 is inconsistent with the prohibition containedcontained

in section 1 of AN ACT to prevent fraudulent and corrupt

Practices •* *

Where there are two statutes, one dealing with a

subject in general and comprehensive terms • and the other

dealing with the same subject in a narrow and definite way.

the two statutes should be read together with a view toward

a consistent legislative policy. (Rosehifl cemetery V. Lauder,

406 Ill. 408) To the extent the two are in conflict, the

special statute will prevail over the general one. (Peop3.

exrel. Southfield Apartment Co. V. Jarecki, 408 111. 266.)

The result is reinforced where, as here, the special Act is

enacted at a later date. Bowes v. City of hicgo, 3 211. 24

175i see. Op. Atty. Gen. NP-866, February 4, 1975.

To the extent, therefore, that section 9of the

Revenue Act of 1939 provides that a county board member may

be appointed by the zounty board to serve as a member of the

Iionornble Jack Rotqn!ian

board of review, it stands as an exception to the general

rule stated in section 1 of "AN ACT to prevent fraudulent

and corrupt practicesi etc." consequently, it is my opinion

that a county board member may be appointed to the board of

review in counties with a population in excess of 150.000.

but less than one million.

To summarize, with respect to the positions of

member and president of the forest preserve commission,

section 1 of "AN AC? to prevent fraudulent and corrupt

practices * *" does not apply since those positions are not

elected or appointed by county board action. Concerning a

member of the board of review, the specific statute governing

that office which allows the county board member to fill

the office by appointment of the county board provides an

exception to the general, earlier enacted statute prohibiting

such dual office holding.

As there are specific statutory provisions which

allow a county board member to serve simultaneously in the

capacity of forest preserve commissioner, president of the

forest preserve commission or meter of the board of review,


it is not necessary to discuss the con law rule of

incompatibility. Since incompatibility is founded upon

principles of public policy, it is unquestionably within

the power of the legislature to provide that two offices

may be held by the same individual even though such offices

might be held to be incompatible at common law. Marini v.

Holster (N.J.). 218k. 2d 887; AhtOv. Weaver, (N.J.) 89 A.

2d 27: child. v. Moses. (S. Ct. N.Y.) 26 X.T.S. 2d 574. affirmed

38 N.Y.S. 24 704, 3 McQuillin Nnicipal corporations". 3rd

Ed. Revised, sec. 12.67, at 296.

I will next turn nV attention to the question

whether a county board member may also nerve in the capacity

of township supervisor. For over 100 years the powers of the

county board in counties under township organization have been

exercised by a board of supervisors composed of township super-

visors and assistant township supervisors. However, because of

the U.S. Supreme court decisions in Rake v. Carr, 369 U.s • 186,

and Avery v. Midland County, Texas, 390 U.S. 470, it became

necessary to correct the "one man, one vote imbalance on

the county board in counties under township organization. See,


Taylor v. county of at Clair, 51 XII. 21 367: People z tel.

;Oro V. The 3d. of Town Auditors, Rock Island township. 48

Ill. 2d 202..

Therefore, in keeping with those decisions, the

General Assembly enacted Public Acts 16-1650 through 76-1654,

and in particular 76-1652. effective October 2, 1969, which

amended section 23 of "AN ACT to revise the law in relation

to counties" (Xli. Rev. Stat. 1973, ch. 34. par. 302) to

read as follows:

05 23. The powers of the county as a body corporateor politic, shall be exercised by a county board, towits In counties Under township organization (ex-cept the county of Cook) • by the board of super-visors, which shall be composed of the town andeth other supervisors as are or may be electedpursuant to law, until the first Monday in May,1972, and, commencing with that date, shallcomposed of the county board members elected under'An Act relating to the composition and electionof county boards in certain counties'. enacted bythe 76th General Assembly; in the County of Cool,by a board of county caumissioners, pursuant tosection 7. article 10 of the constitution: incounties not under township organization, by theboard of county commissioner*."

In an opinion issued February 13, 1970 (S-130) • I

determined that the holding of the office of county board member

Honorable Jackilcogasian - 14.

elected from districts, or at large, in accordance with

Public Acts 76-1650 through 76-1653 was not incompatible

with holding the office of township supervisor. That opinion

was based upon the historical practice, unwavering through

100 years, that the legislature had at all times viewed

the duties and functions of the two offices as compatible.

Since there was a statutory history of interwoven functions

between the offices, and since it did not appear that the

legislature had amended section 23 in the belief that the

offices were incoatible, it was my view that legislative

judgment with respect to proper public policy should be left

to stand.

However, the cumulative effect of recent developnonts

in local governmental law which have taken place since the

issuance of 8-130, and in particular the adoption of a new

State Constitution, and the expansion of the powers and

functions of townships as a separate entity apart from the

powers and functions of counties, leads me to the, unavoidable

conclusion that the offices of township supervisor and county

board member must now be considered incompatible.

HonOrable Jack Hoogasian - 15..

Specifically, the chief area of movement in the

development of the law since 1.970, and the chief reason for

my concern with respect to possible conflicts of Interest.

involves the increased powers of crunties and townships to

contract with each other, and the expanded subjects and

purposes of such contracts. These additional powers

and overlapping functions assigned to townships and counties

of Scent date Invite a clash of obligations each unit

of government owes to its respective citizens which is far

greater in intensity and scope than that which existed under

the prior statutory scheme. My concern is focused on the

fact that a person acting in the dual capacity of county board

meter and township supervisor cannot fully nor fairly represent

the interests of both governments with respect to contracts

between such governmental units.

The corporate powers of the county are exercised by

the county board. (Xli. Rev. Stat. 1973, ch. 34. par. 302j

The county board is empowered to manage the county funds and

county business (Ill. Rev. Stat. 1973. oh. 34. par. 403), and

make on behalf of the county all contracts in relation to the

property and concerns of the county necessary to the exercise

S

Honorable Jack Boogasian - 1.6.

of its corporate powers. (Ill. Rev. Stat. 1973, ch. 34, par.

303.) A member of the county board, of course, takes part

in the formulation, acceptance and ratification of such

contracts.

Section 1 of article flit of "AN AC? to revise the

law in relation to township organization" (til. Rev. Stat.

1973, ch. 139, par. 117) provides in part:

-5 1. in each town the supervisor, town cler)tand three other members elected at large from thetown as provided in Section 1 of Article VII ofthis Act, shall constitute a board of auditorsuntil the 20th day after the 1973 township election.commencing with the .20th day after the 1973 election,the board of auditors shall consist of the supervisorand 4 other members elected at large from the town asprovided in Section 1 of Article VII of this Act,and the town clerk shall be the clerk of the boardof auditors but not a voting meter thereof. Eachperson on the board of auditors shall cast butone vote and the Supervisor shall be the chairmanof such board. * * * fl

Thus, the township supervisor is a voting sitar

of the board of auditors • and like the county board members

participates in the decision making process in the exercise

of the powers vested in the board of town auditors.

The, first important development which has bearing


on the present issue was the inclusion of the section on

Intergovernmental Cooperation within the Illinois Constitution

of 1970 (Xli. conet.. art. VII. sec. 30), and the enactment

of the Intergovernmental cooperation Act. (Ill. Rev. stat.1973. ch. 127. pars 741 et sea.) Section 2 of that Act

(Ill. Rev. Stat. 1973, ch. 127, par. 742) providess

Por the purpose of this Act:

(1) The term 'public agency' shall mean any unitof local government as defined in the IllinoisConstitution of 1970. * * * ft

Section 3 of the Intergovernmental Cooperation Act

(Ill. Rev. Stat. 1973, oh. 127 par. 743) provides:

Any power or powers, privileges or authority exer-cised or which may be exercised by a public agencyof this State may be exercised and enjoyed jointlywith any other public agency of this state andjointly with any public agency of any other stateor of the United States to the extent that laws ofsuch other state or of the United States do notprohibit joint exercise or enjoyment."

Section 5 of the same Act (Iii. Rev. Stat- 1973.-- -- -------WI27 •

par. 74S')rovits, -

Any one or more public agencies may contract withany one or more other public agencies to perform

Honorable Jack Soogasian - 10.

any governmental service, activity or undertakingwhich any of the public agencies entering into thecontract is authorized by law to perform, providedthat such contract shall be authorized by the gov-erning body of each party to the contract. Suchcontract shall not forth fully the purposes, powers,rights, objectives, and responsibilities of the con-tracting parties.

it is thus clear that a member of the county board, in

the exercise of the corporate authority of the county., would be

reqàired, as part of his Statutory duties, to vote upon contracts

with the township of which he is the supervisor. Whereas

prior to the adoption of the new constitution and the enactment

of the intergovernmental Cooperation Act, the power of the

county and township to enter into contracts was restricted

to statutorily specified objects and purposes in limited

areas, it is now clear that the two units of government nay

contract in extremely braid areas of activity not recognized

prior to 1970.

ft should be pointed out that the general corporatepowers of the township to make contracts are exercised by the

town electors at the town meeting. (Ill. Rev., stat. 1973., ch.

139. pars. 38 and 391 Greqq v, Bourbonnais, 327 Ill. App. 253.)


Since township officers and boards have only those powers which

are conferred on them by statute, (Anders v Town of oavi1le,

4$ Ill. App. 2d 104) it would appear that the board of town

auditors do not have the power to enter into intergovernmental

agreements pursuant to the Intergovernmental Cooperation An.

However, in addition to the broad powers to enter Into

intergovernmental agreements granted to county boards and

thus to county board meters by the Intergovernmental

cooperation Act, recent imendraenta have also granted broad

powers directly to the board of town aAditors. Specifically.

Public Act 78-1189 amended section 20 of article XIII of "AN

ACT to revise the law in relation to township organization"

(Ill. Rev, stat. 1973. ch. 139. par. 126.10) and as amended

reads as follows:

"The board of town auditors may enter into anycooperative agreement or contract with any othergovernmental entity, not-for-profit corporation.or non-profit conrmity service association withrespect to the expenditure of township funds • orfunds lade available to the township under thefederal State and Local Fiscal Assistance Act of1972, to provide any of the following servicesto the residents of the townships

1. Ordinary and necessary maintenance and operatingexpenses for,

Honorable Jack lioogasian - 20.

(a)public safety (including law enforcement,fire protection, and building coda enforcement),(b)environmental protection (including sewagedisposal. sanitation 1 and pollution abatement),(a) public transportation. (including transitsystems and streets and roads)(d) health,(.e) recreation,(f) libraries, and(g) social services for the poor and aged; and

2. Ordinary and necessary capital expendituresauthorized by laws.

In order to be eligible to receive funds from thetownship under this Section any private not-for-profitcorporation or community service association shallhave been in existence at least one year prior to thereceipt of the funds."

It should be underscored that the above amendment

has granted the power to the board of town auditors to expend

not only Federal revenue sharing funds, but also its own

township funds in areas where previously the township had

no such power. (See, op. Atty. Gen. 8-693. February 7, 1974;

Op. Atty. Gen. 8-838, November 26, 1974.) Note also that the

board of town auditors are, in the first instance, authorized

to enter into the specified agreements, bypassing the town

electors.

Ronorable Jazt Roogasian - 21.

- So as to emphasize this new degree of overlapping

functions of counties and townships which has been brought

about by the combination of the enactments of the Intergovern-

mental Cooperation Act and Public Act 76-1189, the following

represents an example of the statutory functions of the county

which correspond to the new areas of township function setout in the amendment. With respect tot

(1) Public safety: The County Safety Council(ill. Rev, stat. 1973 cit. 34, pars. 5671et BOQ..)r contracts for police (Ill: Rev.gEr"j.973, cit. 34. par. 3601) and fire(Ill. Rev, stat. 1973. cit. 139g. par. 39.32)protection between counties and townships,eradication of dangerous and unsafe buildings(.111. Rev. stat. 1973, oh. 34, par. 429.8).

(2) Environmental protection, Sewage disposal,sanitation and waterworks systems (Ill. Rev.Stat. 1973, cit. 34, pars. 3101 at naq4tgarbage disposal, landfills (Ill. Rev. Stat.1973 ch. 34. pars. 413. 418); conservation(Ill.. Rev, Stat. 1973, oh. 34. par. 303 9th.12th and 14th): air contamination control (Xli.Rev. Stat. 1973, oh. 34, par. 421.2).

(3) Public trannortation, Acquisition andconstruction of parking facilities (Ill. Rev.Stat. 1973, cit. 34. par. 3302).

(4) Healths clinic, for alcoholics (Ill. Rev. Stat.1973. oh. 34. par. 429.17): hospitals (111. Rev.


Stat. 1973,.ch. 34, par. 303 7th)r ccunitymental health boards (Ill. Rev. Stat. 1973, cit.34, par. 419.2): care and treatment of tuber-culosis (Ill. Rev. Stat. 1973, cit. 34, pare.303 15th, 413, 5101 public healthdepartment. (Ill. Rev. Stat. 1973, cit. 34. par.419, 211. Rev. Stat4 1973. cit. 111 1/2. pars.20(c) etppg.)i au1ance services (tii. Rev.Stat. 1973, oh. 34, par. 419.1)1 creation ofboards of health (Xli. Rev, stat. 1973, cit.34, pars. 3001 et nad County HospitalGoverning ccimission (Ill. Rev. Stat. 1973,oh. 34, pars. 5011 et g., 5022p countysheltered care and nursing homes for infirmand chronically ill (Ill. Rev. Stat. 1973, oh.34, par. 416).

(5) Recreations park and recreational areas (111.Rev. :$tht 1973, ch. 34, par. 303 19th).

(6) Social Services for the poor and aged, communityaction agencies (Ill. Rev. Stat. 1973, cit.. 34,par.. 429.19)1 homes for the aged (Ill. Rev.Stat. 1973, cit. 34, pars. 3561

In all of the above area;, the county board and the

board of town auditors may enter into contracts with each

other to provide a particular Der vice to the people of the

township and the county. In addition, the contractual

scheme way allow more township funds, including Federal revenue

sharing funds, to be funneled to county projects, or vice

versa. Even in this regard it should be noted that the county


board has certain responsibilities with regard to coordinating

Federal and State aid. (Xli. Rev. Stat. 1973, ch. 34. par.

403-1) This responsibility of a county board member may

conflict with his responsibility as a township supervisor

to expend the revenue sharing funds the township receives

on its own.

The conflict of interest that will arise by the

simultaneous holding of the two offices is best explained

by examining the kinds of issues that an individual in both

offices must consider and vote upon. Chief among these are:

What services shall, be provided to people ofthe county and of the township?

Which governmental entity (county or township)should provide the service?

in what area of the county should the servicebe provided (e.g., location of buildings, parks,rocreflionál areas, streets and parking areas,landfills, etc.)?

With a view to the priority expenditures ofeach unit of government, the revenue of whichunit of government shall be used to providethe service?

What specific terms shall be contained in acontract between the county and township?

Honorable Jack Boogasian - 24.

In attempting to make decisions in each of the above

areas, the dual office holder cannot fairly represent the

conflicting interests of the two units of government. In

particular where the service is to be provided pursuant to a

contract entered into between the township and county, the

dual office is clearly representing, and attempting to

negotiate a contract most advantageous to, the interest of

both parties to the bargain.

In Meflonough V. Roach, 35 M.J. 153, 171 A. 2d 307.

the Supreme court. of New Jersey held that the offices of mayor

of a town and member of a Board of chosen Freeholders of

a county were incompatible. After discussing the various

statutory provisions which authorize the county to contract

with the town, the court stated at 171 23. 309*

"In all of these matters the terms upon whichthe project is to be pursued are left to theagreement of the public bodies. In the negotiationsthe county board is bound to consider the interestsof all of its citizens while the local governingbody has a like obligation to the citizenry of themunicipality alone. No man, much less a publicfiduciary, can sit on both sides of a bargainingtable. He cannot in one capacity pass with


undivided loyalty upon proposals he advancesin his other role. * * *' (See, also, 2sitsatel. Xraemer V. Bags Cal. App., 130 P. 2d 243.)

In a previous opinion, involving an ana1ogou

situation, I held that an individual holding the offices of

alderman of a municipality and county board member could not

fully represent the interests of both governments when they are

contracting with each other. (1972 op. Atty. Gen. 45.) see.

also, UP-731, April 2, 1974, (county board member and director of

soil and water conservation district): UP-522, October 27,

1972, (county board meter and trustee of sanitary district):

UP-1342, February 17, 1965, (county board meirthor and city

council meter).

From the foregoing, I must conclude that the offices

of county board meter and township supervisor are incompatible.

It is well settled in Illinois that the acceptance

of an incompatible office by the incumbent of another office

will be regarded as a resignation or vacation of the first

office. (People v. aott, 261 Ill. App. 2611 People a ret.

Myers v. Haas, 145 Ill. App. 283.) Formal resignáticen, or

Hc.norabe Jack Roogasian a 26.

ouster by legal proceeding is not required Packinqham V.

Parker, 66 Iii. App. 96, 100.

I am, of course, mindful that presently there are

a large number of individuals throughout the state who

simultaneously hold' both the office of township supervisor

and county board member. In order to determine to what

extent the rule of automatic vacation of office applies

to these individuals, it is first necessary to determine at

what point intime the offices legally became incompatible.

As I have stated, my opinion that the offices must now be

considered incompatible is largely based upon the cumulative

development of the law with regard to townships and counties

since 1970. It Is not clear, and I need not decide herein,

whether at the time of the adoption of the Local Government

article in the Constitution of 1970, and the enactment of the

Intergovernmental Cooperation Act, a sufficient conflict

of interest arose between the offices so an to warrant a

holding of incompatibility. It is abundantly clear that the

coirbination of these developments, plus the recent enactment


of Public Act 78-1189 granting additional and broader powers

and functions to townships in areas which overlap the already

existing powers and functions of counties, requires the

conclusion that on the effective date of pubjf.c Act 7S-1189

(September 5, 1974) the offices were incompatible.

Statutes should be construed so as to give them

prospective operation only, unless legislative intention to

given them retrospective operation is clear and undoubtable.

(Quincy Training post, Inc. v. The Dept. of Revenue, 12 Iii.

App.. 3d 75 Xersten V. Voight, 164 Iii.. 314; Capone V. The

U.S.,. 51 F. 2d 609.) It has been held that if a person

holding an office is not ineligible for another office at

the time he is elected to the latter, he is not rendered

itelj.gtble by a subsequent statute which wakes the holding

of the other office grounds for ineligibility. The statute

must not be given the drastic effect of retroactively removing

an officer who was competent to servo in an office at the time

of the election or appointment under the previous statute.

II

Honorable Jack Hooqasian - 28.

Tacker v. The State (Miss.) 42 so. 796; accord, Baillie V.

The town of Medley (Fla.) 262 So. 24 693, 697; state v

Mucci, (Ohio) 225 U.Z4 2d 238, 241.

Therefore, it is my opinion that those who have

taken up the duties of both the offices of township super-

visor and county board member prior to septàter S., 194 ., may

retain both offices until either the duration of the term,

or actual vacation of either office. It is sty further opthlftz,

and I believe a court would hold., that any township sup.rviSr

who has assumed the office of county board member, or any

county board member who has assumed the office of township

supervisor, by election or appointment., after September 5,

1914, has ipso facto resigned and vacated the prior held

office.

Very truly yours,

ATTORNEY GENERAL

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