HB3459 94TH GENERAL ASSEMBLY

LRB094 07656 AJO 37829 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB3459

Introduced 02/23/05, by Rep. Michael Tryon

SYNOPSIS AS INTRODUCED:

10 ILCS 5/25-2	from Ch. 46, par. 25-2
65 ILCS 5/3.1-10-5	from Ch. 24, par. 3.1-10-5
65 ILCS 5/3.1-10-50
65 ILCS 5/3.1-10-51 new
65 ILCS 5/5-2-15	from Ch. 24, par. 5-2-15

Amends the Election Code. Provides that a municipality having a population under 500,000 is not subject to the Section regarding the events by which an elective office becomes vacant. Amends the Illinois Municipal Code. Provides that a person who resides in a newly incorporated municipality or who resides in an area of a municipality that has been redistricted is eligible for elective municipal office, notwithstanding that the person has not lived in the new municipality or the different district for at least one year. Describes the events upon which a municipal elective office becomes vacant, such as unconditional resignation, conditional resignation, death, disability, and abandonment. Provides for the election of an acting mayor and an acting president in the event of a vacancy. Provides for the appointment of an alderman or trustee to fill a vacancy. Provides when a vacant position with an unexpired term must be filled by an election. Provides for filling a vacancy in an office of a municipal officer or an alderman. Provides for filling the vacancy of the office of a village alderman or trustee. Effective January 1, 2006.

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Election Code is amended by changing Section 25-2 as follows:

(10 ILCS 5/25-2) (from Ch. 46, par. 25-2)

Sec. 25-2. Events on which an elective office becomes vacant. Every elective office shall become vacant on the happening of any of the following events before the expiration of the term of such office:

(1) The death of the incumbent.

(2) His or her resignation.

(3) His or her becoming a person under legal disability.

(4) His or her ceasing to be an inhabitant of the State; or if the office is local, his or her ceasing to be an inhabitant of the district, county, town, or precinct for which he or she was elected; provided, that the provisions of this paragraph shall not apply to township officers whose township boundaries are changed in accordance with Section 10-20 of the Township Code, nor to township or multi-township assessors elected under Sections 2-5 through 2-15 of the Property Tax Code.

(5) His or her conviction of an infamous crime, or of any offense involving a violation of official oath.

(6) His or her removal from office.

(7) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit or file such oath or bond within the time prescribed by law.

(8) The decision of a competent tribunal declaring his or her election void.

No elective office, except as herein otherwise provided, shall become vacant until the successor of the incumbent of such office has been appointed or elected, as the case may be, and qualified.

An unconditional resignation, effective at a future date, may not be withdrawn after it is received by the officer authorized to fill the vacancy. Such resignation shall create a vacancy in office for the purpose of determining the time period which would require an election. The resigning office holder may continue to hold such office until the date or event specified in such resignation, but no later than the date at which his or her successor is elected and qualified.

An admission of guilt of a criminal offense that would, upon conviction, disqualify the holder of an elective office from holding that office, in the form of a written agreement with State or federal prosecutors to plead guilty to a felony, bribery, perjury, or other infamous crime under State or federal law, shall constitute a resignation from that office, effective at the time the plea agreement is made.

For purposes of this Section, a conviction for an offense that disqualifies the holder of an elective office from holding that office shall occur on the date of the return of a guilty verdict or, in the case of a trial by the court, the entry of a finding of guilt.

This Section does not apply to any elected or appointed officers or officials of any municipality having a population under 500,000.

(Source: P.A. 90-707, eff. 8-7-98.)

Section 10. The Illinois Municipal Code is amended by changing Sections 3.1-10-5, 3.1-10-50, and 5-2-15 and by adding Section 3.1-10-51 as follows:

(65 ILCS 5/3.1-10-5) (from Ch. 24, par. 3.1-10-5)

Sec. 3.1-10-5. Qualifications; elective office.

(a) A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and, in other than newly incorporated municipalities, has resided in the municipality at least one year next preceding the election or appointment, except as provided in subsection (c) of Section 3.1-20-25, subsection (b) of Section 3.1-25-75, Section 5-2-2, or Section 5-2-11.

(b) A person is not eligible for an elective municipal office if that person is in arrears in the payment of a tax or other indebtedness due to the municipality or has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony.

(c) A person is not eligible for the office of alderman of a ward unless that person has resided in the ward that the person seeks to represent, and a person is not eligible for the office of trustee of a district unless that person has resided in the municipality, at least one year next preceding the election or appointment, except as provided in subsection (c) of Section 3.1-20-25, subsection (b) of Section 3.1-25-75, Section 5-2-2, or Section 5-2-11.

(Source: P.A. 93-847, eff. 7-30-04.)

(65 ILCS 5/3.1-10-50)

Sec. 3.1-10-50. Events upon which an elective office becomes vacant Vacancies.

(a) Vacancy by resignation. A resignation is not effective unless it is in writing and signed by the person holding the elective office.

(1) Unconditional resignation. An unconditional resignation by a person holding the elective office may specify a future date, not later than 60 days after the date the resignation is received by the officer authorized to fill the vacancy, at which time it becomes operative, but the resignation may not be withdrawn after it is received by the officer authorized to fill the vacancy. The effective date of a resignation that does not specify a future date at which it becomes operative is the date the resignation is received by the officer authorized to fill the vacancy. The effective date of a resignation that has a specified future effective date is that specified future date or the date the resignation is received by the officer authorized to fill the vacancy, whichever date occurs later.

(2) Conditional resignation. A resignation that does not become effective unless a specified event occurs can be withdrawn at any time prior to the occurrence of the specified event, but if not withdrawn, the effective date of the resignation is the date of the occurrence of the specified event or the date the resignation is received by the officer authorized to fill the vacancy, whichever date occurs later.

(3) Vacancy upon the effective date. For the purpose of determining the time period that would require an election to fill the vacancy by resignation or the commencement of the 60-day time period referred to in subsection (e), the resignation of an elected officer is deemed to have created a vacancy as of the effective date of the resignation.

(4) Duty of the clerk. If a resignation is delivered to the clerk of the municipality, the clerk shall forward a certified copy of the written resignation to the official who is authorized to fill the vacancy.

(b) Vacancy by death or disability. A vacancy occurs in an office by reason of the death of the incumbent. The date of the death may be established by the date shown on the death certificate or other evidence. A vacancy occurs in an office by permanent physical or mental disability rendering the person incapable of performing the duties of the office. The corporate authorities have the authority to make the determination whether an officer is incapable of performing the duties of the office because of a permanent physical or mental disability. A finding of mental disability shall not be made prior to the appointment by a court of a guardian ad litem for the officer or until a duly licensed doctor certifies, in writing, that the officer is mentally impaired to the extent that the officer is unable to effectively perform the duties of the office. If the corporate authorities find that an officer is incapable of performing the duties of the office due to permanent physical or mental disability, that person is removed from the office and the vacancy of the office occurs on the date of the determination.

(c) Vacancy by other causes.

(1) Abandonment and other causes. A vacancy occurs in an office by reason of abandonment of office; removal from office; or failure to qualify; or more than temporary removal of residence from the municipality; or in the case of an alderman of a ward or councilman or trustee of a district, more than temporary removal of residence from the ward or district, as the case may be. The corporate authorities have the authority to determine whether a vacancy under this subsection has occurred. If the corporate authorities determine that a vacancy exists, the office is deemed vacant as of the date of that determination for all purposes including the calculation under subsections (e), (f), and (g).

(2) Guilty of a criminal offense. An admission of guilt of a criminal offense that upon conviction would disqualify the municipal officer from holding the office, in the form of a written agreement with State or federal prosecutors to plead guilty to a felony, bribery, perjury, or other infamous crime under State or federal law, constitutes a resignation from that office, effective on the date the plea agreement is made. For purposes of this Section, a conviction for an offense that disqualifies a municipal officer from holding that office occurs on the date of the return of a guilty verdict or, in the case of a trial by the court, on the entry of a finding of guilt.

(3) Election declared void. A vacancy occurs on the date of the decision of a competent tribunal declaring the election of the officer void.

(d) Election of an acting mayor or acting president. The election of an acting mayor or acting president pursuant to subsection (f) or (g) does not create a vacancy in the original office of the person on the city council or as a trustee, as the case may be, unless the person resigns from the original office following election as acting mayor or acting president. If the person resigns from the original office following election as acting mayor or acting president, then the original office must be filled pursuant to the terms of this Section and the acting mayor or acting president shall exercise the powers of the mayor or president and shall vote and have veto power in the manner provided by law for a mayor or president. If the person does not resign from the original office following election as acting mayor or acting president, then the acting mayor or acting president shall exercise the powers of the mayor or president but shall be entitled to vote only in the manner provided for as the holder of the original office and shall not have the power to veto. If the person does not resign from the original office following election as acting mayor or acting president, and if that person's original term of office has not expired when a mayor or president is elected and has qualified for office, the acting mayor or acting-president shall return to the original office for the remainder of the term thereof.

(e) Appointment to fill alderman or trustee vacancy. An appointment by the mayor or president or acting mayor or acting president, as the case may be, of a qualified person as described in Section 3.1-10-5 of this Code to fill a vacancy in the office of alderman or trustee must be made within 60 days after the vacancy occurs. Once the appointment of the qualified person has been forwarded to the corporate authorities, the corporate authorities shall act upon the appointment within 30 days. If the appointment fails to receive the advice and consent of the corporate authorities within 30 days, the mayor or president or acting mayor or acting president shall appoint and forward to the corporate authorities a second qualified person as described in Section 3.1-10-5. Once the appointment of the second qualified person has been forwarded to the corporate authorities, the corporate authorities shall act upon the appointment within 30 days. If the appointment of the second qualified person also fails to receive the advice and consent of the corporate authorities, then the mayor or president or acting mayor or acting president, without the advice and consent of the corporate authorities, may make a temporary appointment from those persons who were appointed but whose appointments failed to receive the advice and consent of the corporate authorities. The person receiving the temporary appointment shall serve until an appointment has received the advice and consent and the appointee has qualified or until a person has been elected and has qualified, whichever first occurs.

(f) Election to fill vacancies in municipal offices with 4-year terms. If a vacancy occurs in an elective municipal office with a 4-year term and there remains an unexpired portion of the term of at least 28 months, and the vacancy occurs at least 130 days before the general municipal election next scheduled under the general election law, then the vacancy shall be filled for the remainder of the term at that general municipal election. Whenever an election is held for this purpose, the municipal clerk shall certify the office to be filled and the candidates for the office to the proper election authorities as provided in the general election law. If a vacancy occurs with less than 28 months remaining in the unexpired portion of the term or less than 130 days before the general municipal election, then:

(1) Mayor or president. If the vacancy is in the office of mayor or president, the vacancy must be filled by the corporate authorities electing one of their members as acting mayor or acting president. Except as set forth in subsection (d), the acting mayor or acting president shall perform the duties and possess all the rights and powers of the mayor or president until a mayor or president is elected at the next general municipal election and has qualified. However, in villages with a population of less than 5,000, if each of the trustees either declines the election as acting president or is not elected by a majority vote of the trustees presently holding office, then the trustees may elect, as acting president, any other village resident who is qualified to hold municipal office, and the acting president shall exercise the powers of the president and shall vote and have veto power in the manner provided by law for a president.

(2) Alderman or trustee. If the vacancy is in the office of alderman or trustee, the vacancy must be filled by the mayor or president or acting mayor or acting president, as the case may be, in accordance with subsection (e).

(3) Other elective office. If the vacancy is in any elective municipal office other than mayor or president or alderman or trustee, the mayor or president or acting mayor or acting president, as the case may be, must appoint a qualified person to hold the office until the office is filled by election, subject to the advice and consent of the city council or the board of trustees, as the case may be.

(g) Vacancies in municipal offices with 2-year terms. In the case of an elective municipal office with a 2-year term, if the vacancy occurs at least 130 days before the general municipal election next scheduled under the general election law, the vacancy shall be filled for the remainder of the term at that general municipal election. If the vacancy occurs less than 130 days before the general municipal election, then:

(1) Mayor or president. If the vacancy is in the office of mayor or president, the vacancy must be filled by the corporate authorities electing one of their members as acting mayor or acting president. Except as set forth in subsection (d), the acting mayor or acting president shall perform the duties and possess all the rights and powers of the mayor or president until a mayor or president is elected at the next general municipal election and has qualified. However, in villages with a population of less than 5,000, if each of the trustees either declines the election as acting president or is not elected by a majority vote of the trustees presently holding office, then the trustees may elect, as acting president, any other village resident who is qualified to hold municipal office, and the acting president shall exercise the powers of the president and shall vote and have veto power in the manner provided by law for a president.

(2) Alderman or trustee. If the vacancy is in the office of alderman or trustee, the vacancy must be filled by the mayor or president or acting mayor or acting president, as the case may be, in accordance with subsection (e).

(3) Other elective office. If the vacancy is in any elective municipal office other than mayor or president or alderman or trustee, the mayor or president or acting mayor or acting president, as the case may be, must appoint a qualified person to hold the office until the office is filled by election, subject to the advice and consent of the city council or the board of trustees, as the case may be.

(h) In cases of vacancies arising by reason of an election being declared void pursuant to paragraph (3) of subsection (c), persons holding elective office prior thereto shall hold office until their successors are elected and qualified or appointed and confirmed by advice and consent, as the case may be.

(a) A municipal officer may resign from office. A vacancy occurs in an office by reason of resignation, failure to elect or qualify (in which case the incumbent shall remain in office until the vacancy is filled), death, permanent physical or mental disability rendering the person incapable of performing the duties of his or her office, conviction of a disqualifying crime, abandonment of office, removal from office, or removal of residence from the municipality or, in the case of aldermen of a ward or trustees of a district, removal of residence from the ward or district, as the case may be. An admission of guilt of a criminal offense that would, upon conviction, disqualify the municipal officer from holding that office, in the form of a written agreement with State or federal prosecutors to plead guilty to a felony, bribery, perjury, or other infamous crime under State or federal law, shall constitute a resignation from that office, effective at the time the plea agreement is made. For purposes of this Section, a conviction for an offense that disqualifies the municipal officer from holding that office shall occur on the date of the return of a guilty verdict or, in the case of a trial by the court, the entry of a finding of guilt.

(b) If a vacancy occurs in an elective municipal office with a 4-year term and there remains an unexpired portion of the term of at least 28 months, and the vacancy occurs at least 130 days before the general municipal election next scheduled under the general election law, the vacancy shall be filled for the remainder of the term at that general municipal election. Whenever an election is held for this purpose, the municipal clerk shall certify the office to be filled and the candidates for the office to the proper election authorities as provided in the general election law. If the vacancy is in the office of mayor, the city council shall elect one of their members acting mayor; if the vacancy is in the office of president, the vacancy shall be filled by the appointment by the trustees of an acting president from the members of the board of trustees. In villages with a population of less than 5,000, if each of the members of the board of trustees either declines the appointment as acting president or is not approved for the appointment by a majority vote of the trustees presently holding office, then the board of trustees may appoint as acting president any other village resident who is qualified to hold municipal office. The acting mayor or acting president shall perform the duties and possess all the rights and powers of the mayor or president until a successor to fill the vacancy has been elected and has qualified. If the vacancy is in any other elective municipal office, then until the office is filled by election, the mayor or president shall appoint a qualified person to the office subject to the advice and consent of the city council or trustees.

(c) In a 2 year term, or if the vacancy occurs later than the time provided in subsection (b) in a 4 year term, a vacancy in the office of mayor shall be filled by the corporate authorities electing one of their members acting mayor; if the vacancy is in the office of president, the vacancy shall be filled by the appointment by the trustees of an acting president from the members of the board of trustees. In villages with a population of less than 5,000, if each of the members of the board of trustees either declines the appointment as acting president or is not approved for the appointment by a majority vote of the trustees presently holding office, then the board of trustees may appoint as acting president any other village resident who is qualified to hold municipal office. The acting mayor or acting president shall perform the duties and possess all the rights and powers of the mayor or president until a mayor or president is elected at the next general municipal election and has qualified. A vacancy in any elective office other than mayor or president shall be filled by appointment by the mayor or president, with the advice and consent of the corporate authorities.

(d) Municipal officers appointed or elected under this Section shall hold office until their successors are elected and have qualified.

(e) An appointment to fill a vacancy in the office of alderman shall be made within 60 days after the vacancy occurs. The requirement that an appointment be made within 60 days is an exclusive power and function of the State and is a denial and limitation under Article VII, Section 6, subsection (h) of the Illinois Constitution of the power of a home rule municipality to require that an appointment be made within a different period after the vacancy occurs.

(Source: P.A. 90-429, eff. 8-15-97; 90-707, eff. 8-7-98; 91-357, eff. 7-29-99.)

(65 ILCS 5/3.1-10-51 new)

Sec. 3.1-10-51. Vacancies in municipalities with a population of 500,000 or more.

(a) A municipal officer may resign from office. A vacancy occurs in an office by reason of resignation, failure to elect or qualify (in which case the incumbent shall remain in office until the vacancy is filled), death, permanent physical or mental disability rendering the person incapable of performing the duties of his or her office, conviction of a disqualifying crime, abandonment of office, removal from office, or removal of residence from the municipality or, in the case of an alderman of a ward, removal of residence from the ward. An admission of guilt of a criminal offense that would, upon conviction, disqualify the municipal officer from holding that office, in the form of a written agreement with State or federal prosecutors to plead guilty to a felony, bribery, perjury, or other infamous crime under State or federal law, shall constitute a resignation from that office, effective at the time the plea agreement is made. For purposes of this Section, a conviction for an offense that disqualifies the municipal officer from holding that office occurs on the date of the return of a guilty verdict or, in the case of a trial by the court, the entry of a finding of guilt.

(b) If a vacancy occurs in an elective municipal office with a 4-year term and there remains an unexpired portion of the term of at least 28 months, and the vacancy occurs at least 130 days before the general municipal election next scheduled under the general election law, then the vacancy shall be filled for the remainder of the term at that general municipal election. Whenever an election is held for this purpose, the municipal clerk shall certify the office to be filled and the candidates for the office to the proper election authorities as provided in the general election law. If the vacancy is in the office of mayor, the city council shall elect one of their members acting mayor. The acting mayor shall perform the duties and possess all the rights and powers of the mayor or president until a successor to fill the vacancy has been elected and has qualified. If the vacancy is in any other elective municipal office, then until the office is filled by election, the mayor or president shall appoint a qualified person to the office subject to the advice and consent of the city council or trustees.

(c) A municipal officer appointed or elected under this Section shall hold office until the officer's successor is elected and has qualified.

(d) An appointment to fill a vacancy in the office of alderman shall be made within 60 days after the vacancy occurs. The requirement that an appointment be made within 60 days is an exclusive power and function of the State and is a denial and limitation under Article VII, Section 6, subsection (h) of the Illinois Constitution of the power of a home rule municipality to require that an appointment be made within a different period after the vacancy occurs.

(e) This Section applies only to municipalities with a population of 500,000 or more.

(65 ILCS 5/5-2-15) (from Ch. 24, par. 5-2-15)

Sec. 5-2-15. Trustees; tenure; vacancies.

(a) In each village operating under Section 5-2-12, the electors of the village shall elect 6 trustees. The term of office of the trustees shall be 4 years and until their successors are elected and have qualified. Trustees elected at the first election for village officers after a village is incorporated, however, shall by lot designate one-half of their number whose terms shall be 2 years and until their successors are elected and have qualified. In all villages having a population of less than 50,000 in which only 3 trustees were elected for a 4 year term in the year 1941, 3 trustees shall be elected for a 4 year term at the regular village election in the year 1943, and thereafter 3 trustees shall be elected in each odd numbered year for a term of 4 years.

(b) Appointment to fill an alderman or trustee vacancy. An appointment by the mayor or president or acting mayor or acting president, as the case may be, of a qualified person as described in Section 3.1-10-5 of this Code to fill a vacancy in the office of alderman or trustee must be made within 60 days after the vacancy occurs. Once the appointment of the qualified person has been forwarded to the corporate authorities, the corporate authorities shall act upon the appointment within 30 days. If the appointment fails to receive the advice and consent of the corporate authorities within the 30 days, the mayor or president or acting mayor or acting president shall appoint and forward to the corporate authorities a second qualified person as described in Section 3.1-10-5. Once the appointment of the second qualified person has been forwarded to the corporate authorities, the corporate authorities shall act upon the appointment within 30 days. If the appointment of the second qualified person also fails to receive the advice and consent of the corporate authorities within 30 days, then the mayor or president or acting mayor or acting president, without the advice and consent of the corporate authorities, may make a temporary appointment from those persons who were appointed but whose appointments failed to receive the advice and consent of the corporate authorities. The person receiving the temporary appointment shall serve until an appointment has received the advice and consent of the corporate authorities or until a person has been elected and has qualified, whichever first occurs. Whenever a vacancy in the office of a trustee in any village, whether incorporated under a general or a special Act, occurs during his or her term, the vacancy shall be filled for the remainder of the term as provided in Section 3.1-10-50. During the period from the time that the vacancy occurs until a trustee is elected under this Section and has qualified, the vacancy may be filled by the appointment of a trustee by the president with the advice and consent of the remaining trustees. An appointment to fill a vacancy shall be made within 60 days after the vacancy occurs. The requirement that an appointment be made within 60 days is an exclusive power and function of the State and is a denial and limitation under Article VII, Section 6, subsection (h) of the Illinois Constitution of the power of a home rule municipality to require that an appointment be made within a different period after the vacancy occurs.

(Source: P.A. 87-1052; 87-1119; 88-45.)

Section 99. Effective date. This Act takes effect January 1, 2006.