When a city's ethics ordinance carries jail-time penalties heavier than the usual cap on municipal ordinance violations, who can prosecute the violations: the State's Attorney or the city attorney?
Plain-English summary
Kendall County State's Attorney Eric C. Weis asked the AG who is supposed to prosecute violations of a city ethics ordinance, when the ordinance has penalties heavier than the ordinary cap on municipal ordinance violations.
The puzzle exists because the State Officials and Employees Ethics Act, in section 70-5, requires every Illinois unit of local government and school district to adopt an ethics ordinance "no less restrictive" than sections 5-15 (state political-activities limits) and Article 10 (state gift restrictions) of the Ethics Act. The state penalties for violating those provisions are stiff: a Class A misdemeanor (up to 364 days in jail and a $2,500 fine) for political-activities violations, and a business offense (a fine of $1,001 to $5,000) for gift-rule violations. Those penalties exceed what the Illinois Municipal Code generally allows a city to impose for an ordinance violation, namely up to six months in jail and up to $750 in fines.
If the local ethics ordinance must carry penalties as harsh as the state Act, but those penalties exceed the normal city power, two questions follow. First, can a city actually impose those penalties? Second, if it can, who prosecutes the violation? Attorney General Lisa Madigan answered both. The Ethics Act, she concluded, must be read as an implied grant of legislative authority for municipalities to adopt and enforce ethics ordinances with the heavier penalties; otherwise the "no less restrictive" requirement would be impossible to satisfy. And because a State's Attorney is generally not obligated to prosecute another unit of local government's ordinance violations, the prosecution function falls to the city's own attorney (or to outside counsel that the city retains). The AG also noted, in a footnote, that under the Intergovernmental Cooperation Act a county board could contract with the State's Attorney to prosecute municipal ordinance violations, but that path requires an explicit agreement.
Currency note
This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: Why doesn't the State's Attorney prosecute these violations?
A: A State's Attorney's statutory duty under 55 ILCS 5/3-9005(a)(1) is to prosecute "actions on behalf of the people of the State or county for violations of State law." The Ethics Act's local-ordinance requirement does not turn a local ordinance violation into a state-law violation. The AG cited Hazen v. County of Peoria, 138 Ill. App. 3d 836 (1985), and a 1977 AG opinion confirming that a State's Attorney is under no duty to prosecute ordinance violations adopted by units of local government other than the county itself.
Q: Why was there even a question about whether a municipality could impose these penalties?
A: Sections 1-2-1 and 1-2-1.1 of the Illinois Municipal Code cap fines for general municipal ordinance violations at $750 and imprisonment at six months. The Ethics Act's required penalties exceed both numbers (Class A misdemeanor: up to 364 days; business offense: up to $5,000). For non-home-rule cities, that gap is not just inconvenient. Scadron v. City of Des Plaines limits non-home-rule municipalities to powers expressly granted or necessarily implied by statute. Without an implied grant, the city would be unable to satisfy the state mandate.
Q: How does the home-rule rule fit in?
A: Home-rule municipalities have broader powers under article VII, section 6(a) of the Illinois Constitution to "exercise any power and perform any function pertaining to its government and affairs." But article VII, section 6(e) carves out one important limit: a home-rule unit can only impose imprisonment longer than six months "as the General Assembly may provide by law." So home-rule units also need a state legislative grant to reach the heavier Ethics Act penalties. The AG's necessary-implication reading of section 70-5 supplied that grant for both home-rule and non-home-rule cities.
Q: What is the "no less restrictive" requirement?
A: Subsection 70-5(a) requires every unit of local government and every school district to adopt an ordinance or resolution that regulates "in a manner no less restrictive than" sections 5-15 and Article 10 of the Ethics Act, the political activities of officers and employees and the giving and accepting of gifts. Section 70-10 expressly extends that requirement to penalties: a "governmental entity may provide in the ordinance or resolution required by this Article . . . penalties similar to those provided in this Act for similar conduct."
Q: Could a city contract with the State's Attorney to handle these prosecutions?
A: Yes, under article VII, section 10(a) of the Illinois Constitution and sections 3 and 5 of the Intergovernmental Cooperation Act, a county board, with the approval of the State's Attorney, could enter into an agreement under which the State's Attorney's office would prosecute municipal ordinance violations. The opinion noted this option in a footnote. Without such an agreement, the prosecution function stays with the municipal attorney.
Background and statutory framework
The State Officials and Employees Ethics Act was enacted in 2003 as a comprehensive overhaul of state ethics rules covering political activities, gifts, and revolving-door restrictions for executive- and legislative-branch officers and employees. Most of the Act's substantive prohibitions apply directly only to state-level offices. Section 70-5, however, sets up a "no less restrictive" requirement that pushes the political-activities and gift rules out to every unit of local government and every school district in the state.
The AG's office has played an active role in implementing section 70-5. In 2004, the office published a Model Ethics Ordinance and a companion Guide to the Implementation of the Model Ethics Ordinance. Both documents recommended that local ordinances replicate the state Act's penalties to satisfy the "no less restrictive" requirement.
Penalty structure under the state Act. A person who intentionally violates section 5-15 (the political-activities prohibition) is guilty of a Class A misdemeanor, punishable under 730 ILCS 5/5-4.5-55(a), (e) by up to 364 days of imprisonment and a fine of up to $2,500. A person who intentionally violates Article 10 (the gift rules) is guilty of a business offense punishable by a fine of $1,001 to $5,000.
Penalty caps under the Municipal Code. Section 1-2-1 of the Municipal Code authorizes a municipality to "pass all ordinances and make all rules and regulations proper or necessary . . . with such fines or penalties as may be deemed proper. No fine or penalty, however, except civil penalties provided for failure to make returns or to pay any taxes levied by the municipality shall exceed $750 and no imprisonment authorized in Section 1-2-9 for failure to pay any fine, penalty or cost shall exceed 6 months for one offense." Section 1-2-1.1 separately authorizes municipalities to make an ordinance violation a misdemeanor punishable by up to six months in a non-penitentiary penal institution, and provides that the municipality is "authorized to prosecute violations of penal ordinances enacted under this Section as criminal offenses by its corporate attorney in the circuit court."
The AG's analytical move was to treat section 70-5 as an implied state-legislative grant of power to local governments to adopt and enforce ethics ordinances with the heavier penalties the state Act requires. Without that grant, the "no less restrictive" requirement could not be carried out by any municipality, home-rule or otherwise.
Citations and references
Statutes and constitutional provisions (as cited in the opinion):
- 5 ILCS 430/1-5, 5-15, 10-10 et seq., 20-5(d), 25-5(d), 30-5(a), 50-5, 70-5, 70-10
- 5 ILCS 220/3, 5 (Intergovernmental Cooperation Act)
- 55 ILCS 5/3-9005(a)(1)
- 65 ILCS 5/1-2-1, 1-2-1.1
- 730 ILCS 5/5-4.5-55(a), (e); 5/5-4.5-80(a)
- Ill. Const. 1970, art. VII, § 6(a), (e); § 10(a)
- Public Act 97-813, effective July 13, 2012
- Public Act 97-697, effective June 22, 2012
Cases:
- Hazen v. County of Peoria, 138 Ill. App. 3d 836 (1985)
- Scadron v. City of Des Plaines, 153 Ill. 2d 164 (1992)
- 1977 Ill. Att'y Gen. Op. 31
Source
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/df2475ca37/2012%2012-002%20GOVERNMENTAL%20ETHICS%20Municipal%20Attorney%E2%80%99s%20Authority%20to%20Prosecute%20Alleged%20Violations%20of%20Municipality%E2%80%99s%20Ethics%20Ordinance.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
December 21, 2012
FILE NO. 12-002
GOVERNMENTAL ETHICS AND CONFLICT OF INTEREST:
Municipal Attorney's Authority to Prosecute Alleged Violations of a Municipality's Ethics Ordinance
The Honorable Eric C. Weis
State's Attorney, Kendall County
Kendall County Courthouse
807 West John Street
Yorkville, Illinois 60560
Dear Mr. Weis:
I have your letter inquiring whether a municipal attorney may prosecute alleged violations of a municipality's ethics ordinance, adopted pursuant to section 70-5 of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/70-5 (West 2010)), if the violations carry penalties in excess of the limitations ordinarily applicable to penalties for municipal ordinance violations. For the reasons stated below, it is my opinion that a municipal attorney may prosecute alleged violations of a municipality's ethics ordinance, as long as the penalties prescribed in the ordinance are consistent with the provisions of the Ethics Act, regardless of whether those penalties would otherwise exceed the general limitations applicable to municipal ordinance violations.
BACKGROUND
The Ethics Act represents a comprehensive revision and expansion of State statutes regulating ethical conduct, political activities, and the making and acceptance of gifts by public officers and public employees. Although the provisions of the Ethics Act are directly applicable only to the officers and employees of the executive and legislative branches of State government (see generally 5 ILCS 430/1-5 (West 2010), as amended by Public Act 97-813, effective July 13, 2012; 5 ILCS 430/20-5(d) (West 2011 Supp.); 5 ILCS 430/25-5(d), 30-5(a) (West 2010)), subsection 70-5(a) of the Ethics Act (5 ILCS 430/70-5(a) (West 2010)) requires that all units of local government and school districts:
adopt an ordinance or resolution that regulates, in a manner no less restrictive than Section 5-15 and Article 10 of this Act, (i) the political activities of officers and employees of the governmental entity and (ii) the soliciting and accepting of gifts by and the offering and making of gifts to officers and employees of the governmental entity.
Section 5-15 of the Ethics Act prohibits State officers and employees from engaging in various political activities while on compensated time. Article 10 of the Ethics Act limits the circumstances in which State officers and employees may accept gifts from, among others, a "prohibited source," as that term is defined in the Act.
Section 50-5 of the Ethics Act (5 ILCS 430/50-5 (West 2010)) contains the penalty provisions for a violation of the Act and provides, in pertinent part:
(a) A person is guilty of a Class A misdemeanor if that person intentionally violates . . . Section 5-15 . . . .
. . .
(c) A person who intentionally violates any provision of Article 10 is guilty of a business offense and subject to a fine of at least $1,001 and up to $5,000.
As required by subsection 70-5(b) of the Ethics Act, in 2004, this office drafted and published a Model Ethics Ordinance to provide guidance to units of local government in complying with their obligation to adopt appropriate ethics regulations. Although not required by the Ethics Act, this office also published a companion document entitled "A Guide to the Implementation of the Model Ethics Ordinance." The Guide is keyed to the provisions of the Model Ordinance and provides analysis regarding the Ethics Act and the requirements for units of local government in adopting ordinances that implement the provisions of the Ethics Act. In keeping with the Ethics Act's requirement that an ordinance be "no less restrictive" than its provisions, both the Model Ordinance and the Guide suggest that a violation of a unit of local government's ethics ordinance should result in penalties equal to those found in the Ethics Act.
You have asked whether a municipal attorney has the authority to prosecute a violation of a municipal ethics ordinance adopted pursuant to the Ethics Act, if the penalty for a violation includes "criminal penalties," such as a term of incarceration, or whether only the State's Attorney may prosecute such violations.
ANALYSIS
State's Attorneys' duties include prosecuting actions on behalf of the people of the State or county for violations of State law. 55 ILCS 5/3-9005(a)(1) (West 2011 Supp.). Nothing in the Ethics Act provides that a violation of a local ethics ordinance constitutes a violation of State law. Further, a State's Attorney is under no duty to prosecute ordinance violations adopted by units of local government other than those of the county he or she serves, regardless of the penalty prescribed. See Hazen v. County of Peoria, 138 Ill. App. 3d 836, 842 (1985); 1977 Ill. Att'y Gen. Op. 31. Consequently, a State's Attorney's duties do not include the prosecution of alleged violations of a municipality's ethics ordinance.
Whether a municipal attorney has the authority to prosecute a violation of a municipal ethics ordinance carrying a penalty of incarceration in excess of six months necessarily depends on whether the municipality has been delegated the requisite authority to adopt an ethics ordinance which imposes such penalties. See generally Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174 (1992) (non-home-rule municipalities possess only those powers that are expressly granted to them by the constitution or by statute, together with those powers necessarily implied therefrom to effectuate the powers that have been expressly granted); see also Ill. Const. 1970, art. VII, § 6(a) ("a home rule unit may exercise any power and perform any function pertaining to its government and affairs[,]" except to the extent home rule powers have been limited pursuant to article VII, section 6, of the Constitution). If so, it follows that an attorney representing the municipality has the authority to prosecute violations of the ordinance.
Under the plain and unambiguous language of section 70-5, units of local government are expressly authorized to adopt ethics ordinances and resolutions addressing the political activities of officers and employees and the solicitation and acceptance of gifts. The penalties for violations of section 5-15 and article 10 of the Ethics Act exceed the penalties that Illinois statutes generally allow municipalities to impose for ordinance violations. See, e.g., 65 ILCS 5/1-2-1, 1-2-1.1 (West 2010). Specifically, a violation of section 5-15 is a Class A misdemeanor with a penalty of up to 364 days of imprisonment and a fine not to exceed $2,500. See 730 ILCS 5/5-4.5-55(a), (e) (West 2010), as amended by Public Act 97-697, effective June 22, 2012. A violation of article 10 of the Ethics Act is a business offense punishable by a fine of not less than $1,001 nor more than $5,000. See 730 ILCS 5/5-4.5-80(a) (West 2010) (the fine for a business offense is generally "the amount specified in the statute defining that offense").
Subsection 70-5(a) of the Ethics Act, however, expressly provides that local ethics ordinances must be "no less restrictive" than the State statute's provisions. Section 70-10 (5 ILCS 430/70-10 (West 2010)) establishes that this requirement also extends to the penalties for violations of the ordinances. In section 70-10, the General Assembly empowered units of local government to impose penalties equivalent to those imposed by the Ethics Act by authorizing "[a] governmental entity [to] provide in the ordinance or resolution required by this Article . . . penalties similar to those provided in this Act for similar conduct." Accordingly, a local ordinance must impose equivalent penalties for violations of equivalent prohibitions. A lesser penalty would clearly be "less restrictive" than the provisions of the Ethics Act.
The power to adopt penal ordinances and the penalties that may be imposed are generally dependent upon a grant of authority from the General Assembly. Although the Ethics Act does not expressly state that its provisions constitute a grant of authority from the General Assembly to units of local government to impose penalties in the amounts set out by law, it must necessarily be interpreted as just that. A unit of local government which does not have the power to enact penal ordinances or to impose fines consistent with those of the Ethics Act could not adopt regulations "no less restrictive" than those of the Act.
Consequently, it is my opinion that the Ethics Act is intended to provide units of local government with all of the power necessary to effectuate the General Assembly's purposes. By requiring that a unit of local government's ordinance be "no less restrictive" than the Ethics Act's provisions, the Ethics Act grants municipalities the authority to adopt ethics ordinances which impose such penalties. It then follows, in my opinion, that an attorney representing a municipality that has adopted such an ethics ordinance possesses the authority to prosecute the violations of the ordinances so adopted.
CONCLUSION
The State Officials and Employees Ethics Act requires units of local government, including municipalities, to enact ethics ordinances or resolutions that provide equivalent penalties to those imposed by the Ethics Act for similar conduct, and concomitantly empowers units of local government to enforce those ordinances. In the case of a municipality, providing for the enforcement of ordinance violations is the responsibility of the corporate authorities. The corporate authorities may assign the prosecutorial function to a municipal attorney or to outside counsel. (Pursuant to sections 3 and 5 of the Intergovernmental Cooperation Act (5 ILCS 220/3, 5 (West 2010)) and article VII, subsection 10(a), of the Illinois Constitution of 1970, a county board, with the approval of the State's Attorney, could enter into a contract with a municipality's corporate authorities under the terms of which the State's Attorney's office would prosecute municipal ordinance violations.) Accordingly, it is my opinion that a municipal attorney may prosecute alleged violations of the municipality's ethics ordinance, adopted pursuant to section 70-5 of the Ethics Act, notwithstanding that the penalties prescribed therein exceed the limitations ordinarily applicable to punishment for municipal ordinance violations.
Very truly yours,
LISA MADIGAN
ATTORNEY GENERAL