As reported earlier, the General Assembly adopted legislation regulating the conduct of elected officials and governmental employees in May. The Governor signed House Bill 672 in August, but he noted there were ambiguities and inconsistencies in the bill which should be clarified with remedial legislation. Various governmental groups, such as the Illinois Municipal League, drafted legislation to clear up these problems, but the new legislation was not adopted during the fall veto session. Accordingly, local governments and school districts must abide by the law as written, and adopt their own gift ban policies before July 1, 1999.
The law's main purpose is to regulate giving and receiving of gifts by public officials and those who do business with them. Gift is defined as:
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, honoraria for speaking engagements related to or attributable to government employment or the official position of an employee, member, officer or judge.
The law generally prohibits such gifts, but lists 23 categories of gifts which are permitted. Complaints that local government and school district officials and employees violated the law will be heard by the statewide Legislative Ethics Commission (LEC). Local governments and school districts do not have to appoint their own Ethics Commission. The LEC will examine complaints of violations of the gift ban law and recommend some type of action to the violator's "ultimate jurisdictional authority". The law contains no definition of who the "ultimate jurisdictional authority" of a municipal or school district official is. Presumably, it would be the governing board, such as a city council, village board or school board.
The LEC can dismiss a complaint, recommend action to the violator's ultimate jurisdictional authority, and/or impose a fine for violation. Independent of any action by the LEC, the State's Attorney can prosecute a person for violating the law, which is a "business offense" (not a misdemeanor or felony) subject to a fine of up to $5,000.00. The LEC is exempt from the Freedom of Information and Open Meetings acts.
The law also requires local governments and school districts to appoint an Ethics Officer. The Ethics Officer has only two limited powers. The Ethics Officer must provide advice on complying with the new law, but does not have to be given the authority to investigate violations of the law. Secondly, the Ethics Officer is also to review Statements of Economic Interests "before they are filed with the Secretary of State" -- a requirement which seems to make no sense, as the local government and school officials who must file these statements file them with county clerks. Additionally, the law doesn't say what action the Ethics Officer should take after reviewing the statements.
As currently drafted, the law requires units of local government and school districts to "prohibit the solicitation and acceptance of gifts" and to enforce those prohibitions, "in a manner substantially in accordance with the requirements of" the new law and to "adopt provisions no less restrictive than the provisions of" the new law, all before July 1, 1999. The law also provides that "non-salaried appointed or elected officials may be exempted".
No official or employee may solicit or accept any gift from any prohibited source. A "prohibited source" is a person or entity who is attempting to influence, do business with, is regulated by, or has interests affected by performance or non-performance of officials or registered lobbyists.
Exemptions from this gift ban are:
- Anything bought at market value by the recipient
- Lawful political contributions
- Gifts from relatives, as defined in the law
- Gifts from "personal friends", as defined in the law
- Commercially reasonable loans
- Legal defense fund contributions
- Intra- and inter-office gifts, as defined in the law
- Food, refreshments, lodging and transportation:
- resulting from the outside business or employment of the employee or officer, if the benefits were not offered or enhanced because of the person's governmental position or employment, and are customarily provided to others in similar circumstances;
- customarily provided by an prospective employer in connection with bona fide employment discussions; or
- provided by a political organization in connection with a fundraising or campaign event sponsored by that organization
- resulting from the outside business or employment of the employee or officer, if the benefits were not offered or enhanced because of the person's governmental position or employment, and are customarily provided to others in similar circumstances;
- Pension or employee benefit plans
- Informational materials such as books, articles, periodicals and tapes
- Prizes for open public competitions or random drawings
- Honorary degrees
- Training (including food and refreshments furnished to all attendees as an integral part of the training), if the training is in the interest of the governmental body
- Educational missions, including foreign or domestic meetings to educate public officials on matters of public policy, to which the person may be invited along with similar government officials or employees
- Inheritances and transfers at the time of death
- Items paid for or contracted for the government
- A gift of personal hospitality at a personal residence other than from persons such as lobbyists
- Free attendance at widely attended job-related or civic events or conventions, provided:
- the person participates in the event as a speaker or panel participant, by presenting information related to government, or by performing a ceremonial function appropriate to the person's position;
- attendance at the event is appropriate to the performance of civic affairs in Illinois or the official duties of the person; and
- with respect to charitable events, the person may not accept reimbursement for transportation or lodging
A person may accept an unsolicited offer of free attendance at the event for an accompanying individual.
"Free attendance" may include waiver or all or part of a conference or other fee, the provision of transportation and food, refreshments, entertainment and instructional materials provided to all attendees as an integral part of the event. The term does not include entertainment collateral to the event, nor does it include food or refreshments taken other than in a group setting with all or substantially all the attendees (except as described in #22 to 24 below)
- the person participates in the event as a speaker or panel participant, by presenting information related to government, or by performing a ceremonial function appropriate to the person's position;
- Opportunities and benefits available to the general public or employees as a group
- Commemorative plaques, trophies, or similar items
- Golf or tennis
- Food or refreshments of nominal value
- Meals or beverages consumed on the premises on which they were purchased
- Catered food or refreshments
- Promotional donations of products by Illinois companies of minimal value
- Gifts of nominal value, examples of which are "t-shirts, greeting cards and baseball caps"
Activities which are substantially recreational in nature are not considered to be in connection with official duties.
The law appears to require that existing policies which are more restrictive than the law remain in place. It also authorizes implementation of policies which are more restrictive. The law pre-empts authority of home rule units to enact provisions less stringent than the law provides.
Model policy/ordinance available
Robbins Schwartz has prepared a model ordinance for municipalities and related governmental bodies, and a model policy for school boards, which meets the requirements of the new law.