Full Text of HB5366 102nd General Assembly
HB5366 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB5366 Introduced 1/31/2022, by Rep. Brad Halbrook SYNOPSIS AS INTRODUCED: |
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Amends the Illinois Municipal Code. For vacancies for abandonment and other causes in municipalities with a population under 500,000, removes language providing that the corporate authorities have the authority to determine whether a vacancy has occurred and, if the corporate authorities determine that a vacancy exists, the office is deemed vacant as of the date of that determination. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning local government.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Municipal Code is amended by | 5 | | changing Section 3.1-10-50 as follows:
| 6 | | (65 ILCS 5/3.1-10-50)
| 7 | | Sec. 3.1-10-50. Events upon which an elective office | 8 | | becomes vacant in municipality with population under 500,000.
| 9 | | (a) Vacancy by resignation. A resignation is not effective | 10 | | unless it is in
writing, signed by the person holding the | 11 | | elective office, and notarized.
| 12 | | (1) Unconditional resignation. An unconditional | 13 | | resignation by a person holding the elective office may | 14 | | specify a future date, not later than 60 days after the | 15 | | date the resignation is received by the officer authorized | 16 | | to fill the vacancy, at
which time it becomes operative, | 17 | | but the resignation may not be withdrawn after it is
| 18 | | received by the officer authorized to fill the vacancy. | 19 | | The effective date of a resignation that does not specify | 20 | | a future date at which it becomes operative is the date the
| 21 | | resignation is received by the officer authorized to fill | 22 | | the vacancy. The effective date of
a resignation that has | 23 | | a specified future effective date is that specified future |
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| 1 | | date or the date the resignation is received by the | 2 | | officer authorized to fill the vacancy, whichever date | 3 | | occurs later. | 4 | | (2) Conditional resignation. A resignation that does | 5 | | not become
effective unless a specified event occurs can | 6 | | be withdrawn at any time prior to the occurrence of the | 7 | | specified event, but if not withdrawn, the effective date | 8 | | of the
resignation is the date of the occurrence of the | 9 | | specified event or the date the resignation is received by | 10 | | the officer authorized to fill the vacancy, whichever date | 11 | | occurs later. | 12 | | (3) Vacancy upon the effective date. For the purpose | 13 | | of determining the time period that would require an | 14 | | election to fill the vacancy by resignation or the | 15 | | commencement of the 60-day time period referred to in | 16 | | subsection (e), the resignation of an elected officer is | 17 | | deemed to have created a vacancy as of the effective date | 18 | | of the resignation. | 19 | | (4) Duty of the clerk. If a resignation is delivered | 20 | | to the clerk of the municipality, the clerk shall forward | 21 | | a certified copy of the written resignation to the | 22 | | official who is authorized to fill the vacancy within 7 | 23 | | business days after receipt of the resignation. | 24 | | (b) Vacancy by death or disability. A vacancy occurs in an | 25 | | office by reason
of the death of the incumbent. The date of the | 26 | | death may be established by the date shown on the death
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| 1 | | certificate. A vacancy occurs in an office by permanent | 2 | | physical or
mental disability rendering the person incapable | 3 | | of performing the duties of the office.
The corporate | 4 | | authorities have the authority to make the determination | 5 | | whether an officer is incapable of performing the duties of | 6 | | the office because of a permanent physical or mental | 7 | | disability. A finding of mental disability shall not be made | 8 | | prior to the appointment by a court of a guardian ad litem for | 9 | | the officer or until a duly licensed
doctor certifies, in | 10 | | writing, that the officer is mentally impaired to the extent | 11 | | that the
officer is unable to effectively perform the duties | 12 | | of the office. If the corporate
authorities find that an | 13 | | officer is incapable of performing the duties of the office | 14 | | due to permanent
physical or mental disability, that person is | 15 | | removed from the office and the vacancy of the office occurs on | 16 | | the date of the determination. | 17 | | (c) Vacancy by other causes. | 18 | | (1) Abandonment and other causes. A vacancy occurs in | 19 | | an office by reason of abandonment of office; removal from | 20 | | office; or failure to qualify; or more than
temporary | 21 | | removal of residence from the municipality; or in the case | 22 | | of an alderperson of a ward or councilman or trustee of a | 23 | | district, more than temporary removal of residence
from | 24 | | the ward or district, as the case may be. The corporate | 25 | | authorities have the authority to determine whether a | 26 | | vacancy under this subsection has occurred. If the |
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| 1 | | corporate authorities determine that a vacancy exists, the | 2 | | office is deemed vacant as of the date of that | 3 | | determination for all purposes including the calculation | 4 | | under subsections (e), (f), and (g). | 5 | | (2) Guilty of a criminal offense. An admission of | 6 | | guilt of a criminal
offense that upon conviction would | 7 | | disqualify the municipal officer from holding the
office, | 8 | | in the form of a written agreement with State or federal | 9 | | prosecutors to plead guilty to a felony, bribery, perjury, | 10 | | or other infamous crime under State or federal law, | 11 | | constitutes a resignation from that office, effective on | 12 | | the date the plea agreement is made. For purposes of this | 13 | | Section, a conviction for an offense that disqualifies a | 14 | | municipal officer from holding that office occurs on the | 15 | | date of the return of a guilty verdict or, in the case of a | 16 | | trial by the court, on the entry of a finding of guilt. | 17 | | (3) Election declared void. A vacancy occurs on the | 18 | | date of the decision of a competent tribunal declaring the | 19 | | election of the officer void. | 20 | | (4) Owing a debt to the municipality. A vacancy occurs | 21 | | if a municipal official fails to pay a debt to a | 22 | | municipality in which the official has been elected or | 23 | | appointed to an elected position subject to the following: | 24 | | (A) Before a vacancy may occur under this | 25 | | paragraph (4), the municipal clerk shall deliver, by | 26 | | personal service, a written notice to the municipal |
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| 1 | | official that (i) the municipal official is in arrears | 2 | | of a debt to the municipality, (ii) that municipal | 3 | | official must either pay or contest the debt within 30 | 4 | | days after receipt of the notice or the municipal | 5 | | official will be disqualified and his or her office | 6 | | vacated, and (iii) if the municipal official chooses | 7 | | to contest the debt, the municipal official must | 8 | | provide written notice to the municipal clerk of the | 9 | | contesting of the debt. A copy of the notice, and the | 10 | | notice to contest, shall also be mailed by the | 11 | | municipal clerk to the appointed municipal attorney by | 12 | | certified mail. If the municipal clerk is the | 13 | | municipal official indebted to the municipality, the | 14 | | mayor or president of the municipality shall assume | 15 | | the duties of the municipal clerk required under this | 16 | | paragraph (4). | 17 | | (B) In the event that the municipal official | 18 | | chooses to contest the debt, a hearing shall be held | 19 | | within 30 days of the municipal clerk's receipt of the | 20 | | written notice of contest from the municipal official. | 21 | | An appointed municipal hearing officer shall preside | 22 | | over the hearing, and shall hear testimony and accept | 23 | | evidence relevant to the existence of the debt owed by | 24 | | the municipal officer to the municipality. | 25 | | (C) Upon the conclusion of the hearing, the | 26 | | hearing officer shall make a determination on the |
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| 1 | | basis of the evidence presented as to whether or not | 2 | | the municipal official is in arrears of a debt to the | 3 | | municipality. The determination shall be in writing | 4 | | and shall be designated as findings, decision, and | 5 | | order. The findings, decision, and order shall | 6 | | include: (i) the hearing officer's findings of fact; | 7 | | (ii) a decision of whether or not the municipal | 8 | | official is in arrears of a debt to the municipality | 9 | | based upon the findings of fact; and (iii) an order | 10 | | that either directs the municipal official to pay the | 11 | | debt within 30 days or be disqualified and his or her | 12 | | office vacated or dismisses the matter if a debt owed | 13 | | to the municipality is not proved. A copy of the | 14 | | hearing officer's written determination shall be | 15 | | served upon the municipal official in open proceedings | 16 | | before the hearing officer. If the municipal official | 17 | | does not appear for receipt of the written | 18 | | determination, the written determination shall be | 19 | | deemed to have been served on the municipal official | 20 | | on the date when a copy of the written determination is | 21 | | personally served on the municipal official or on the | 22 | | date when a copy of the written determination is | 23 | | deposited in the United States mail, postage prepaid, | 24 | | addressed to the municipal official at the address on | 25 | | record with the municipality. | 26 | | (D) A municipal official aggrieved by the |
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| 1 | | determination of a hearing officer may secure judicial | 2 | | review of such determination in the circuit court of | 3 | | the county in which the hearing was held. The | 4 | | municipal official seeking judicial review must file a | 5 | | petition with the clerk of the court and must serve a | 6 | | copy of the petition upon the municipality by | 7 | | registered or certified mail within 5 days after | 8 | | service of the determination of the hearing officer. | 9 | | The petition shall contain a brief statement of the | 10 | | reasons why the determination of the hearing officer | 11 | | should be reversed. The municipal official shall file | 12 | | proof of service with the clerk of the court. No answer | 13 | | to the petition need be filed, but the municipality | 14 | | shall cause the record of proceedings before the | 15 | | hearing officer to be filed with the clerk of the court | 16 | | on or before the date of the hearing on the petition or | 17 | | as ordered by the court.
The court shall set the matter | 18 | | for hearing to be held within 30 days after the filing | 19 | | of the petition and shall make its decision promptly | 20 | | after such hearing. | 21 | | (E) If a municipal official chooses to pay the | 22 | | debt, or is ordered to pay the debt after the hearing, | 23 | | the municipal official must present proof of payment | 24 | | to the municipal clerk that the debt was paid in full, | 25 | | and, if applicable, within the required time period as | 26 | | ordered by a hearing officer or circuit court judge. |
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| 1 | | (F) A municipal official will be disqualified and | 2 | | his or her office vacated pursuant to this paragraph | 3 | | (4) on the later of the following times if the | 4 | | municipal official: (i) fails to pay or contest the | 5 | | debt within 30 days of the municipal official's | 6 | | receipt of the notice of the debt; (ii) fails to pay | 7 | | the debt within 30 days after being served with a | 8 | | written determination under subparagraph (C) ordering | 9 | | the municipal official to pay the debt; or (iii) fails | 10 | | to pay the debt within 30 days after being served with | 11 | | a decision pursuant to subparagraph (D) upholding a | 12 | | hearing officer's determination that the municipal | 13 | | officer has failed to pay a debt owed to a | 14 | | municipality. | 15 | | (G) For purposes of this paragraph, a "debt" shall | 16 | | mean an arrearage in a definitely ascertainable and | 17 | | quantifiable amount after service of written notice | 18 | | thereof, in the payment of any indebtedness due to the | 19 | | municipality, which has been adjudicated before a | 20 | | tribunal with jurisdiction over the matter. A | 21 | | municipal official is considered in arrears of a debt | 22 | | to a municipality if a debt is more than 30 days | 23 | | overdue from the date the debt was due. | 24 | | (d) Election of an acting mayor or acting president. The | 25 | | election of an acting mayor or acting president pursuant to | 26 | | subsection (f) or (g) does not create a vacancy in the original |
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| 1 | | office of the person on the city council or as a trustee, as | 2 | | the case may be, unless the person resigns from the original | 3 | | office following election as acting mayor
or acting president. | 4 | | If the person resigns from the original office following
| 5 | | election as acting mayor or acting president, then the | 6 | | original office must be filled pursuant to the terms of this | 7 | | Section and the acting mayor or acting president shall
| 8 | | exercise the powers of the mayor or president and shall vote | 9 | | and have veto power in the manner provided by law for a mayor | 10 | | or president. If the person does not resign from
the original | 11 | | office following election as acting mayor or acting president, | 12 | | then the
acting mayor or acting president shall exercise the | 13 | | powers of the mayor or president but shall be entitled to vote | 14 | | only in the manner provided for as the holder of the original | 15 | | office and shall not have the power to veto. If the person does | 16 | | not resign from the
original office following election as | 17 | | acting mayor or acting president, and if that person's | 18 | | original term of office has not expired when a mayor or | 19 | | president is elected and has
qualified for office, the acting | 20 | | mayor or acting-president shall return to the original office | 21 | | for the remainder of the term thereof. | 22 | | (e) Appointment to fill alderperson or trustee vacancy. An | 23 | | appointment by the
mayor or president or acting mayor or | 24 | | acting president, as the case may be, of a qualified person as | 25 | | described in Section 3.1-10-5 of this Code to fill a vacancy in | 26 | | the office of alderperson or trustee must be made within 60 |
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| 1 | | days after the vacancy occurs. Once the appointment of the | 2 | | qualified person has been forwarded to the corporate
| 3 | | authorities, the corporate authorities shall act upon the | 4 | | appointment within 30 days. If the appointment fails to | 5 | | receive the advice and consent of the corporate authorities | 6 | | within 30 days, the mayor or president or acting mayor or | 7 | | acting president shall appoint and forward to the corporate | 8 | | authorities a second qualified person as described in Section | 9 | | 3.1-10-5. Once the appointment of the second qualified person | 10 | | has been
forwarded to the corporate authorities, the corporate | 11 | | authorities shall act upon the
appointment within 30 days. If | 12 | | the appointment of the second qualified person also fails to | 13 | | receive the advice and consent of the corporate authorities, | 14 | | then the mayor or president or acting mayor or acting | 15 | | president, without the advice and consent of the corporate | 16 | | authorities, may make a temporary appointment from those | 17 | | persons who were appointed but whose appointments failed to | 18 | | receive the advice and consent of the corporate authorities. | 19 | | The person receiving the temporary appointment shall serve | 20 | | until an appointment has received the advice and consent and | 21 | | the appointee has qualified or until a person has been elected | 22 | | and has qualified, whichever first occurs. | 23 | | (f) Election to fill vacancies in municipal offices with | 24 | | 4-year terms. If a vacancy occurs in an elective municipal | 25 | | office with a 4-year term and there remains an unexpired | 26 | | portion of the term of at least 28 months, and the vacancy |
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| 1 | | occurs at least 130 days before
the general municipal election | 2 | | next scheduled under the general election law, then the | 3 | | vacancy shall be filled for the remainder of the term at that | 4 | | general municipal election. Whenever
an election is held for | 5 | | this purpose, the municipal clerk shall certify the office to | 6 | | be filled and the candidates for the office to the proper | 7 | | election authorities as provided in the general election law. | 8 | | If a vacancy occurs with less than 28 months remaining in the
| 9 | | unexpired portion of the term or less than 130 days before the | 10 | | general municipal election, then: | 11 | | (1) Mayor or president. If the
vacancy is in the | 12 | | office of mayor or president, the vacancy must be filled | 13 | | by the
corporate authorities electing one of their members | 14 | | as acting mayor or acting president. Except as set forth | 15 | | in subsection (d), the acting mayor or acting president | 16 | | shall perform the duties and possess all the rights and | 17 | | powers of the mayor or president until a mayor or | 18 | | president is elected at the next general municipal | 19 | | election and has qualified. However, in
villages with a | 20 | | population of less than 5,000, if each of the trustees | 21 | | either declines the
election as acting president or is not | 22 | | elected by a majority vote of the trustees presently
| 23 | | holding office, then the trustees may elect, as acting | 24 | | president, any other village resident who is qualified to | 25 | | hold municipal office, and the acting president shall | 26 | | exercise the powers of the president and shall vote and |
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| 1 | | have veto power in the manner provided by law for a | 2 | | president. | 3 | | (2) Alderperson or trustee. If the vacancy is in the | 4 | | office of alderperson or
trustee, the vacancy must be | 5 | | filled by the mayor or president or acting mayor or acting | 6 | | president, as the case may be, in accordance with | 7 | | subsection (e). | 8 | | (3) Other elective office. If the vacancy is in any | 9 | | elective municipal office other than mayor or president or | 10 | | alderperson or trustee, the mayor or president or acting | 11 | | mayor or acting president, as the case may be, must | 12 | | appoint a qualified person to hold the office until the | 13 | | office is filled by election, subject to the advice and | 14 | | consent of
the city council or the board of trustees, as | 15 | | the case may be. | 16 | | (g) Vacancies in municipal offices with 2-year terms. In | 17 | | the case of an elective municipal office with a 2-year term, if | 18 | | the vacancy occurs at least 130 days before the general | 19 | | municipal election next scheduled under the general election | 20 | | law, the vacancy shall be filled for the remainder of the term | 21 | | at
that general municipal election. If the vacancy occurs less | 22 | | than 130 days before the general municipal election, then: | 23 | | (1) Mayor or president. If the
vacancy is in the | 24 | | office of mayor or president, the vacancy must be filled | 25 | | by the
corporate authorities electing one of their members | 26 | | as acting mayor or acting president. Except as set forth |
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| 1 | | in subsection (d), the acting mayor or acting president | 2 | | shall perform the duties and possess all the rights and | 3 | | powers of the mayor or president until a mayor or | 4 | | president is elected at the next general municipal | 5 | | election and has qualified. However, in villages with a | 6 | | population of less than 5,000, if each of the trustees | 7 | | either declines the
election as acting president or is not | 8 | | elected by a majority vote of the trustees presently | 9 | | holding office, then the trustees may elect, as acting | 10 | | president, any other village resident who is qualified to | 11 | | hold municipal office, and the acting president shall | 12 | | exercise the powers of the president and shall vote and | 13 | | have veto power in the manner provided by law for a | 14 | | president. | 15 | | (2) Alderperson or trustee. If the vacancy is in the | 16 | | office of alderperson or trustee, the vacancy must be | 17 | | filled by the mayor or president or acting mayor or acting | 18 | | president, as the case may be, in accordance with | 19 | | subsection (e). | 20 | | (3) Other elective office. If the vacancy is in any | 21 | | elective municipal office other than mayor or president or | 22 | | alderperson or trustee, the mayor or president or acting | 23 | | mayor or acting president, as the case may be, must | 24 | | appoint a qualified person to
hold the office until the | 25 | | office is filled by election, subject to the advice and | 26 | | consent of the city council or the board of trustees, as |
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| 1 | | the case may be. | 2 | | (h) In cases of vacancies arising by reason of an election | 3 | | being declared void pursuant to paragraph (3) of subsection | 4 | | (c), persons holding elective office prior thereto shall hold
| 5 | | office until their successors are elected and qualified or | 6 | | appointed and confirmed by advice and consent, as the case may | 7 | | be.
| 8 | | (i) This Section applies only to municipalities with | 9 | | populations under 500,000.
| 10 | | (Source: P.A. 102-15, eff. 6-17-21.)
| 11 | | Section 99. Effective date. This Act takes effect upon | 12 | | becoming law.
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