Can an Illinois state representative also work part-time as a city police detective without violating the constitutional ban on dual public compensation?

Plain-English summary

Representative John Cabello was a City of Rockford police detective who took an unpaid leave of absence after being appointed (and later elected) to the Illinois House. He wanted to resume his detective duties part-time. Representative Jack Franks, chair of the State Government Administration Committee, asked the AG whether that was permitted under article IV, section 2(e) of the Illinois Constitution.

AG Lisa Madigan ran through three layers of analysis. First, the common-law incompatibility-of-offices doctrine did not apply, because rank-and-file police officers are public employees rather than public officers, and even if it did apply, no Illinois statute and no inherent duty conflict bars the combination. Second, article IV, section 2(e) does prohibit a General Assembly member from receiving compensation as a public officer or employee from any other governmental entity "for time during which he is in attendance as a member of the General Assembly," but the framing debates of the 1970 Constitution made clear that the rule targets dual pay for the same time, not the second job itself. A legislator can collect city pay for actual days worked when the General Assembly is in session but recessed, or when not in session at all. Third, "compensation" includes fringe benefits, so accrued vacation, sick leave, and PTO must be prorated to exclude session days. Using existing accrued leave to draw a city paycheck during a session day is also barred, since it would amount to double pay.

The bottom line: yes, the legislator can also be a city police detective; no, he cannot get paid (in any form) by the city for time the General Assembly is in session and not in recess.

Currency note

This opinion was issued in 2014. 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: What does article IV, section 2(e) actually prohibit?
A: At the time of the opinion, it provided: "No member of the General Assembly shall receive compensation as a public officer or employee from any other governmental entity for time during which he is in attendance as a member of the General Assembly."

Q: How did the framers of the 1970 Constitution explain that language?
A: The Committee on the Legislative Article initially proposed barring legislators from receiving "compensation and allowances as a public employee and as a member of the General Assembly," using a legislator-policeman as their working example. The Convention rejected that broader prohibition and adopted the narrower "for time during which he is in attendance" language. Delegate Mathias described the goal as preventing "dual compensation, payment from two public payrolls for the same time," not banning concurrent public employment outright. Delegate Kelley explained that the legislator could "spend one day in the legislature and not get paid * * * for that day by the governmental entity he is employed by, but then he can go back to his employing agency and be paid for days during the time the legislature is in session but recessed."

Q: What about the doctrine of incompatibility of offices?
A: The AG noted that the doctrine, in Illinois, applies only to public officers, not public employees. Citing Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill. App. 3d 926 (1976), the opinion observed that rank-and-file police officers are generally treated as public employees, so the doctrine did not apply. The AG also noted Rogers v. Village of Tinley Park, 116 Ill. App. 3d 437 (1983), as an outlier that did not engage with the longstanding officer-employee distinction.

Q: Does the constitutional bar reach fringe benefits, not just salary?
A: Yes. The opinion concluded that "compensation" in article IV, section 2(e) includes both salary and fringe benefits, citing 1978 Ill. Att'y Gen. Op. 179, 180 (paid vacation and sick leave are forms of compensation). Vacation accrual, sick leave accrual, and PTO must be adjusted (either by accrual rate or amount) to exclude any time the General Assembly was in session and not in recess.

Q: What about benefits that don't accrue per day worked, like a dental plan?
A: The opinion acknowledged some benefits are not tied to days worked. It said the public employer must adjust those benefits if there is a "practical way" to do so, but a categorical opinion was not possible. Each benefit must be evaluated case by case.

Q: Can the legislator use accrued vacation or PTO to draw a city check during a session day?
A: No. The opinion's footnote explained that letting a legislator draw paid time off as a city employee on a session day would entitle him to his "full city salary and other compensation" for that day, contravening the dual-pay ban.

Background and statutory framework

Under the Illinois Constitution of 1870, members of the General Assembly were prohibited from holding any other lucrative office at all. The 1970 Convention narrowed and modernized that rule into article IV, section 2(e): no flat prohibition on outside employment, but a clean ban on overlapping pay during legislative attendance.

Legislator pay structure has shifted across Illinois history (per diem until 1897, biennial salary until 1941, annual salary, and then monthly installments since 1977 under Public Act 79-1333). At the time of the opinion, legislators were paid in 12 monthly installments under 25 ILCS 115/1 (West 2013 Supp., as amended by P.A. 98-682). The frequency of legislator pay does not change the analysis. The constitutional rule keys to attendance, not pay schedule.

The General Assembly is, under article IV, section 5, "a continuous body" during the term for which House members are elected. The opinion's narrow reading of "in attendance" means the bar reaches days the relevant chamber is convened and conducting business, not the entire two-year period.

Citations and references

Statutes:
- Ill. Const. 1970, art. IV, §§ 2(e), 5
- Ill. Const. 1870, art. IV, §§ 3, 15 (historical predecessor)
- 25 ILCS 115/1 (West 2013 Supp., as amended by P.A. 98-682)

Cases:
- People ex rel. Fitzsimmons v. Swailes, 101 Ill. 2d 458 (1984)
- People ex rel. Smith v. Brown, 356 Ill. App. 3d 1096 (2005)
- People ex rel. Myers v. Haas, 145 Ill. App. 283 (1908)
- Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill. App. 3d 926 (1976)
- Rogers v. Village of Tinley Park, 116 Ill. App. 3d 437 (1983)
- Committee for Educational Rights v. Edgar, 174 Ill. 2d 1 (1996)
- League of Women Voters of Peoria v. County of Peoria, 121 Ill. 2d 236 (1987)

Source

• Landing page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/14786b9908/2014%2014-002%20LEGISLATIVE%20BRANCH%20State%20Representative%20Receiving%20Compensation%20as%20Police%20Detective.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 23, 2014

FILE NO. 14-002
LEGISLATIVE BRANCH:
State Representative Receiving Compensation as Police Detective

The Honorable Jack D. Franks
Chairman, State Government Administration Committee
State Representative, 63rd District
1193 South Eastwood Drive
Woodstock, Illinois 60098

Dear Representative Franks:

I have your letter inquiring about the application of article IV, section 2(e), of the Illinois Constitution of 1970 to a member of the General Assembly who is also employed as a city police detective. For the reasons set out below, it is my opinion that a legislator may be employed simultaneously as a police detective while serving in the General Assembly. Pursuant to article IV, section 2(e), of the Illinois Constitution of 1970, however, he may not be compensated for his city employment for the time during which the General Assembly is in session and not in recess.

BACKGROUND

The focus of your letter is on Representative John Cabello, who is employed as a police detective by the City of Rockford and was appointed to the Illinois House of Representatives in August 2012. Since assuming legislative office, the Representative has been on a continuous leave of absence from his city position. At the November 4, 2014, general election, Representative Cabello was elected to a two-year term of office. The Representative would like to resume his duties as a city police detective on a part-time basis. Questions have arisen as to whether such a part-time arrangement would be permissible under article IV, section 2(e), of the Illinois Constitution of 1970.

ANALYSIS

Incompatibility of Offices

When considering whether a public officer may hold two public positions simultaneously, the analysis begins with a review of the common law doctrine of incompatibility of offices. In the current circumstances, as discussed below, the doctrine does not apply. Offices are deemed incompatible, when: (1) a State statute specifically prohibits the occupant of either one of the offices in question from holding the other; or (2) the duties of either office are such that the holder of one office cannot in every instance fully and faithfully perform all of the duties of the other office. People ex rel. Fitzsimmons v. Swailes, 101 Ill. 2d 458, 465 (1984); People ex rel. Smith v. Brown, 356 Ill. App. 3d 1096, 1098 (2005); People ex rel. Myers v. Haas, 145 Ill. App. 283, 286 (1908). In Illinois, however, the doctrine of incompatibility of offices is applicable only to officers and not to employees. 1975 Ill. Att'y Gen. Op. 278. Because rank and file police officers are generally considered to be public employees, rather than officers of the municipality they serve (see generally Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill. App. 3d 926, 931-32 (1976)), the doctrine would not be applicable in these circumstances.

Even assuming that the doctrine applied here, it would not bar simultaneous service in the positions of Illinois State Representative and city police detective. In this case, there is no statute that prohibits a city police detective from serving as a legislator. Moreover, the duties of the two positions do not appear to conflict. Consequently, even under the doctrine of incompatibility of offices, it does not appear that one person would be precluded from holding the positions of Illinois State Representative and city police detective simultaneously.

Constitutional Limitations

Article IV, section 2(e), of the Constitution provides, in pertinent part:

(e) No member of the General Assembly shall receive compensation as a public officer or employee from any other governmental entity for time during which he is in attendance as a member of the General Assembly.

Section 2(e) does not prohibit a General Assembly member from simultaneously holding a local public office or from receiving compensation for services performed as an employee for a unit of local government. See generally 1980 Ill. Att'y Gen. Op. 116; 1976 Ill. Att'y Gen. Op. 49. Rather, section 2(e) prohibits a General Assembly member from "receiv[ing] compensation" for local government service "for time during which he is in attendance as a member of the General Assembly."

Constitutional Debates

Under the Illinois Constitution of 1870, members of the General Assembly were prohibited from holding any other lucrative office. Ill. Const. 1870, art. IV, §3; see also Ill. Const. 1870, art. IV, §15. The Committee on the Legislative Article of the Sixth Constitutional Convention redrafted the Constitution to clarify and combine all provisions concerning dual office-holding and to specifically address a member of the General Assembly serving as a public employee. The Committee initially drafted section 2(e) so as to prohibit a member of the General Assembly from receiving "compensation and allowances as a public employee and as a member of the General Assembly" and from holding "any other elective or appointive public office." In explaining the intent behind the prohibition, the Committee used as an example a legislator who was also a police officer:

To be seated as a member of the General Assembly, a member who is a public employee would necessarily have to take a leave of absence, if possible, or resign from his position as a public employee. The intent of this language is to preclude dual or joint salaries at any time during a legislative session. For example, if the General Assembly were in session during January, February and March, a member who was a policeman could not receive any salary except his legislative salary. But when the session concluded at the end of March, he could resume his salaried position as a policeman while ceasing to receive his salary as a legislator.

Following extensive debate, the proposal was rejected and the pertinent language was replaced with what is now the first sentence of section 2(e). The debate concerning section 2(e), as introduced, focused primarily on whether a General Assembly member should be prohibited from receiving compensation as a public employee while also serving in the General Assembly.

Proponents of the language of section 2(e) clearly intended to prohibit a member of the General Assembly from receiving "dual compensation, payment from two public payrolls for the same time" (Remarks of Delegate Mathias, 4 Record of Proceedings, Sixth Illinois Constitutional Convention 2835), while still permitting a member to be compensated by a unit of local government "for days that were used actually performing his duties as a public employee notwithstanding the fact [that] the General Assembly may be in session but recessed." 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1469.

Accordingly, a General Assembly member could be paid "for the days where he is actually working for the governmental entity, such as would be on a per diem basis." Remarks of Delegate Kelley, 4 Record of Proceedings, Sixth Illinois Constitutional Convention 2671.

Thus, it is my opinion that the constitutional debates clearly reflect that it was the framers' intent to allow a General Assembly member to be employed by another governmental entity, as long as he or she does not receive compensation from that public employment for the time during which the General Assembly is in session and not in recess.

Fringe Benefits

The issue also arises as to whether the prohibition on receiving compensation from another governmental entity while the General Assembly is in session applies to the accrual of fringe benefits, such as paid vacation and insurance coverage. As previously discussed, article IV, section 2(e), prohibits General Assembly members from receiving "compensation" as a public officer or employee for the time during which the General Assembly is in session and not in recess. The Illinois Constitution does not expressly define the term "compensation," however. It is a longstanding principle that unless otherwise defined, "compensation" includes both salary and fringe benefits. See 1978 Ill. Att'y Gen. Op. 179, 180 (paid vacation and sick leave are both forms of compensation). To permit members of the General Assembly to receive fringe benefits from their other public employment based on days when the General Assembly is in session would contravene the intent of article IV, section 2(e), of the Constitution.

Accordingly, it is my opinion that a General Assembly member may not receive fringe benefits from public employment, such as accruing vacation time, sick leave, or paid time off, if the benefits are calculated to include credit for time that the General Assembly was in session. Thus, if the police detective-legislator would ordinarily accrue one vacation day for every month that he is in active service for the city, for example, then either the accrual rate or the amount of the benefit earned must be adjusted to exclude credit for any time that the General Assembly was in session and not in recess.

I would point out, however, that there may be certain fringe benefits that do not accrue or otherwise correlate to the number of days or weeks worked, such as dental plans that include semi-annual exams. In those instances, to the extent that there is a practical way to adjust the particular benefit, the public employer must do so. Whether a particular fringe benefit accrues based on the number of days or weeks worked will depend on an examination of the circumstances surrounding each case and is not an issue that can be resolved in a legal opinion of this office.

CONCLUSION

Pursuant to article IV, section 2(e), of the Illinois Constitution of 1970, a General Assembly member may receive compensation for services performed for another governmental entity. However, section 2(e) prohibits the General Assembly member from receiving compensation from the governmental employer for the time during which the General Assembly is in session and not in recess. The term "compensation" includes salary, as well as fringe benefits.

Accordingly, it is my opinion that a legislator may be employed simultaneously as a city police detective while serving in the General Assembly. Pursuant to article IV, section 2(e), of the Illinois Constitution of 1970, however, it is my further opinion that he may not receive compensation, including the accrual of fringe benefits, from the city for the time during which the General Assembly is in session and not in recess.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL