Attorney general issues opinions

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2000)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 01-007 through 01-011 and informal opinions I-01-026 through I-01-049 that may be of interest to the government bar. (See, "Attorney general issues opinions" ISBA Standing Committee on Government Lawyers newsletter, October 2001, Vol. 3, No. 1, for a summary official opinions 01-001 through 01-006 and informal opinions I-01-001 through I-01-025.)

Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield Office at (217) 782-9070. Copies official opinions may also be found on the Internet at <http:// www.ag.state. il.us/opinions/opinions.html>.

Opinion No. 01-007, issued October 29, 2001: state's attorney's entitlement to conviction fees upon disposition of supervision. Pursuant to section 4-2002 of the Counties Code, state's attorneys in counties with under 3,000,000 in population are entitled to receive certain fees for each conviction. The term "conviction" is defined as a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense. A disposition of supervision, however, is not an adjudication of guilt. Moreover, if the court determines that a defendant has successfully complied with all of the conditions of supervision, the court discharges the defendant and enters a judgment dismissing the charges. Consequently, a disposition of supervision is not a conviction, and, therefore, a state's attorney is not entitled to a conviction fee when a defendant is placed on supervision. 55 ILCS 5/4-2002 (West 2000).

Opinion No. 01-009, issued October 31, 2001: effect of a pardon on the issuance of a teaching certificate. The State Board of Education and the Teacher Certification Board may consider the past conviction of an applicant for a teaching certificate in determining whether the applicant is of good character, even though the applicant has been pardoned with respect to the conviction and the records relating to the arrest and conviction have been expunged. Neither the pardon nor the expungement eliminates the underlying conduct, and the State Board is not required to ignore information concerning those matters that may be available to it from other sources.

Opinion No. 01-010, issued November 2, 2001: off-site account wagering. (1) Licensed wagering facilities in Illinois cannot legally accept off-site account wagers either from persons in Illinois or persons in other states, because off-site account wagering is not authorized by the provisions of the Horse Racing Act and the acceptance off-site account wagers would therefore violate subsection 28-1(a)(2) of the Criminal Code of 1961. (2) Persons in Illinois cannot legally place off-site account wagers electronically because doing so would violate subsections 28-1(a)(11) and/or (12) of the Criminal Code of 1961, even if such wagers were placed with an entity that is licensed and operating in another state. (3) The mere sending of wagering information to a person in Illinois by cable or other signal, however, is not prohibited without proof that such information is actually being used for purposes of gambling. (4) Illinois organization licensees can legally send signals of their races to entities licensed in another state to conduct pari-mutuel wagering, including off-site account wagering, provided that the entity accepts wagers only within the state by which it is licensed, and that all parties comply with the provisions of the Interstate Horseracing Act.

Informal Opinion No. I-01-029, issued July 2, 2001: interest of local public officials in the sale of liquor. Where municipal officers have arranged, after their election, to transfer ownership and management of their businesses to adult children, so as to enable the business to continue to hold liquor licenses, whether the officers retain direct interests in the businesses are questions of fact which must be determined, based upon financing and other arrangements, by the liquor commission or another tribunal with jurisdiction in the matter. 235 ILCS 5/6-2(a) (10), (11) and (14) (West 2000).

Informal Opinion No. I-01-032, issued July 16, 2001: municipality's authority to impose liens on real property for delinquent electric charges. In the absence of a statute so providing, a non-home-rule municipality is without authority to impose a lien upon the real property for which it supplies electric utility services when charges for such service become delinquent. Any ordinance by which a municipality attempts to do so will be ineffective. 65 ILCS 5/11-117-1, 11-117-12 (West 2000).

Informal Opinion No. I-01-033, issued July 16, 2001: police powers of investigators of the Illinois Department of Revenue. As a general proposition, investigators of the Illinois Department of Revenue do not have the authority to exercise their limited police powers to enforce the provisions of penal statutes other than taxing measures administered by the Department of Revenue. Such investigators may make arrests for violations of penal laws which they personally observe, but only to the extent that a private citizen may do so. Once a valid arrest has been made, however, an investigator may exercise his or her police powers to address the situation. Moreover, in the event that an investigator is summoned to the aid of a law enforcement officer having general jurisdiction, he or she may exercise his or her police powers to the same extent as the requesting officer.

Informal Opinion No. I-01-038, issued September 27, 2001: imposition of a tax on the state by a home rule county. The state is not subject to a tax levied by a home rule unit where the state is performing a governmental function, unless the General Assembly expressly waives this immunity. The provision of parking spaces to state employees as part of their compensation pursuant to a lease entered into by the Department of Central Management Services is a governmental function. Consequently, the state is not subject to the Cook County Parking Lot and Garage Operations Tax.

Informal Opinion No. I-01-042, issued October 30, 2001: suspension of pension benefits upon reemployment. The appointment of a retired judge to serve as a member of a state administrative board which meets fewer than 75 times per year, may properly be considered "temporary employment" as that phrase is used in subsection 18-127(b) of the Illinois Pension Code. Thus, the appointment will not require the suspension of the retiree's annuity, as long as the retiree is not compensated for more than 75 days of service in any calendar year. 40 ILCS 5/18-127 (West 2000).

Informal Opinion No. I-01-043, issued October 31, 2001: detention of juveniles charged with domestic battery or violation of order of protection. Pursuant to subsection (d) of Supreme Court Rule 528, when a person is charged with the offense of domestic battery, a violation of an order of protection or a violation of a similar local ordinance, he or she may not be admitted to bail but must be held in custody until bail can be set by the court. Article V of the Juvenile Court Act of 1987 establishes the procedures for the arrest, release, detention and trial of minors alleged to be delinquent. Unless one of the enumerated exceptions set out in section 5-120 of the Juvenile Court Act applies, no minor under 17 years of age at the time of an alleged offense may be prosecuted under the criminal laws of the state. Unless a juvenile was subject to such an exception, the juvenile's arrest and release would be governed by the Juvenile Court Act of 1987, not the rules applying to adult criminal court, including Supreme Court Rule 528. 705 ILCS 405/5-120 (West 2000); Supreme Court Rule 528 (188 Ill. 2d R. 528).