AG Provides Guidance On Investigations
February 25, 2010
by Don R. Sampen
The Illinois attorney general's office provides written opinions as required by law to the governor and other elected and appointed state officers upon legal or constitutional questions relating to the duties of those officers. In 2007, the office issued three such opinions, as follows:
- Reports by Executive Inspector General (File No. 07-001, December 24, 2007)
The Executive Ethics Commission raised an inquiry concerning the "appropriate ultimate jurisdictional authority" to which reports must be sent concerning investigations that are not concluded within six months.
As background, the State Officials and Employees Ethics Act, 5 ILCS 430/20- 65, regulates the ethical conduct of executive branch constitutional officers, legislative branch constitutional officers, General Assembly members and state employees. To promote and investigate compliance with the act, the act creates five executive inspector general offices, each an independent, non-partisan agency for a specific constitutional officer of the executive branch.
Each office of an executive inspector general is directed by an inspector who is authorized to investigate allegations of fraud and misconduct. In addition, the act creates the Executive Ethics Commission whose duties include promulgating rules governing investigations of the inspectors, conducting hearings, and issuing recommendations.
Upon receipt of an allegation of ethics violation, an inspector may initiate an investigation. The act does not prescribe a time period within which the inspector is required to complete the investigation, but under section 20-65 of the act, if it is not completed within six months, the inspector must notify both the commission and the "appropriate ultimate jurisdictional authority" of the general nature of the allegations and information giving rise to the investigation, and give reasons for not completing the investigation within six months.
The commission and the inspector for the agencies of the Illinois governor here disagreed over the construction of the phrase "appropriate ultimate jurisdictional authority," as applied to the inspector's investigations of officers or employees of the state's universities and community colleges. The inspector contended that he could satisfy his reporting duty by simply sending the same generalized blanket report to all of the state's 57 state universities and colleges. Such a report, in the view of the inspector, would avoid identifying investigation-specific information and thus assist in preventing the destruction or concealment of evidence.
The commission, on the other hand, argued that the inspector must send a separate, individualized report to each board of trustees of the universities and colleges to which the inspector's investigations related.
The attorney general's office sided with the commission. The office construed language in section 20-65 of the Act that the inspector "shall notify the ... appropriate ultimate jurisdictional authority" (emphasis added) -- to mean that an individualized report must go to each board of trustees whose institution was being targeted.
Moreover, the office noted that that section requires the inspector to disclose only "the general nature" of the investigation, but that if the inspector has concerns about the sensitive nature of the information to be disclosed, that is a matter to be addressed to the General Assembly.
In sum, according to the attorney general, the same collective report of all outstanding investigations does not satisfy the inspector's reporting obligation.
-Public Access to Search Warrants (File No. 07-002, Dec. 24, 2007)
The Sangamon County state's attorney inquired of the attorney general whether materials filed in support of a search warrant, and the warrant itself, are subject to public inspection prior to the final disposition of any resulting criminal case.
The office responded first by noting that the circuit court clerks maintain search warrant documentation. Under the procedures outlined by the Administrative Office of the Illinois Courts, warrants pertaining to a particular criminal case are to be maintained as part of the file of that case, while warrants not relating to a pending criminal case are to be assigned a "Miscellaneous Remedies" number.
The office further observed that, although court records, by statute, are to be accessible to the public, the Illinois Supreme Court, in Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (2000), held that the courts retain the discretion to order that certain records be filed under seal.
The Administrative Office thus has ordered that a search warrant filed prior to its return to the court must be impounded until the return is filed. Once the warrant is returned, however, according to the office, the documentation is to be available to the public unless a court otherwise orders.
The office further opined that search warrants and associated documents in the custody of the circuit clerk are not subject to inspection under the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq. The office reached this conclusion based on Copley Press Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548 (1995), which found that the Act did not apply to the courts or judiciary.
-Destruction of Public Election Records (File No. 07-003, December 26, 2007)
The DuPage County state's attorney and chair of the Local Records Commission inquired of the office whether the Local Records Act, 50 ILCS 205/1 et seq., is applicable generally to local election commissions, including the DuPage County Election Commission, and, if so, whether the provisions of the Illinois Election Code, 10 ILCS 5/1-1 et seq., or federal elections laws exclude certain election materials from the Records Act's provisions.
The records act establishes a procedure for the management and destruction of local public records. Under the act, a local agency must ordinarily satisfy several procedures before disposing of its public records. The local agency must provide a listing of public records to the Local Records Commission and then, after receiving approval from the commission, and at least 60 days prior to destruction, the local agency must file a requisite certificate with the commission and obtain certificate approval prior to destruction.
With respect to application of the Records Act to the DuPage County Election Commission, the office examined section 7 of the act and observed that the act applies to, among others, "any officer or agency." Section 3 of the act, moreover, defines "officer" to include appointed county officers and "agency" to include county commissions. The act therefore applies to county election commissions in general and the DuPage County Election Commission in particular.
The office further noted that various provisions of the Election Code, e.g., 10 ILCS 5/4-5.01, provide for the destruction of election-related records. The office construed these provisions as not conflicting with the Records Act. Rather, said the office, to the extent the Election Code fixes retention periods for the destruction of certain records, the Local Records Commission must recognize and give effect to those provisions. Thus, the two statutes are consistent.
The office also examined the Federal Civil Rights Act of 1960, 42 U.S.C. [sec] 1974, which addresses election record preservation, and found that it too does not conflict with the procedural requirements of the Records Act. The office thus concluded that the DuPage County Election Commission must obtain Local Records Commission approval prior to disposing of records, and other statutes do not supercede or conflict with that requirement.
