SR1282 98TH GENERAL ASSEMBLY

SR1282 LRB098 21610 JWD 60502 r

SENATE RESOLUTION

WHEREAS, Section 11 of Article V of the Illinois Constitution authorizes the Governor, by Executive Order, to reassign functions among or reorganize executive agencies that are directly responsible to the Governor; and

WHEREAS, Section 4 of the Executive Reorganization Implementation Act sets forth procedures and requirements regarding Executive Orders issued under Section 11 of Article V of the Illinois Constitution; and

WHEREAS, Section 3.2 of the Executive Reorganization Implementation Act provides that reorganization occurs when an Executive Order: (1) transfers the whole or any part of any agency, or the whole or any part of the functions thereof, to the jurisdiction and control of any other agency; (2) consolidates or coordinates the whole or any part of any agency, or the whole or any part of the functions thereof, with the whole or any part of any other agency or the functions thereof; (3) consolidates or coordinates any part of any agency or the functions thereof with any other part of the same agency or the functions thereof; (4) abolishes the whole or any part of any agency which does not have, or upon the taking effect of reorganization will not have, any functions; or (5) establishes a new agency to perform all or any part of the functions of an existing agency or agencies; and

WHEREAS, Section 3.1 of the Executive Reorganization Implementation Act specifies that the term "agency directly responsible to the Governor" includes, subject to limited exceptions, any office, officer, division, or part thereof, and any other office, nonelective officer, department, division, bureau, board, or commission in the executive branch of State government; and

WHEREAS, The Governor issued Executive Order 14-04, which purports to consolidate the Division of Mental Health with the Division of Alcoholism and Substance Abuse into a new entity called the Division of Mental Health and Addiction Recovery Services within the Department of Human Services; and

WHEREAS, The two divisions within the Department of Human Services are agencies directly responsible to the Governor; and

WHEREAS, Because Executive Order 14-04 consolidates two agencies into one agency, Executive Order 14-04 is an executive reorganization order; and

WHEREAS, Because Executive Order 14-04 contravenes various statutes enumerated in the Order, Executive Order 14-04 is hereby deemed a reorganization order that is subject to Section 11 of Article V of the Illinois Constitution and the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-04 in its entirety was delivered to the Secretary of the Senate and the Clerk of the House of Representatives on April 1, 2014; and

WHEREAS, The 60-day period for the General Assembly to disapprove Executive Order 14-04 expires on May 31, 2014; and

WHEREAS, Executive Order 14-04 expressly cites the Governor's reorganization authority, to consolidate or coordinate the whole or any part of an agency, or the whole or any part of the functions thereof, with the whole or any part of any other agency or the functions thereof (subsection (2) of Section 3.2 of the Executive Reorganization Implementation Act); and

WHEREAS, Executive Order 14-04 fails to acknowledge that it also abolishes two agencies, the Division and Mental Health and the Division of Alcoholism and Substance Abuse, that will not have any functions upon the taking effect of reorganization (subsection (5) of Section 3.2 of the Executive Reorganization Implementation Act), and while the Governor has the authority to abolish agencies, Executive Order 14-04 does not refer to the basis of that authority; and

WHEREAS, Subsection (f) of Section 4 of the Executive Reorganization Implementation Act requires an Executive Order to terminate the affairs of any agency abolished; and

WHEREAS, Executive Order 14-04 states that the Division of Mental Health and the Division of Alcoholism and Substance Abuse are currently managed by a single Director within the Department of Human Services; and

WHEREAS, Executive Order 14-04 also generally provides that personnel and positions of the Division of Mental Health and the Division of Alcoholism and Substance Abuse programs affected by Executive Order 14-04 shall be consolidated and continue their service within the new Division of Mental Health and Addiction Recovery Services; and

WHEREAS, Executive Order 14-04 implicitly appoints the current Director of the existing Divisions as the head of the new Division of Mental Health and Addiction Recovery Services, but that appointment is not subject to confirmation by the Senate, in violation of subsection (b) of Section 4 of the Executive Reorganization Act; and

WHEREAS, Executive Order 14-04 consolidates the functions of the Division of Mental Health and the Division of Alcoholism and Substance Abuse so that upon the effect of the reorganization, those agencies will be abolished, but fails to provide for terminating the affairs of the abolished agencies, in violation of subsection (f) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-04 states that the powers, duties, rights, and responsibilities of the Division of Mental Health and the Division of Alcoholism and Substance Abuse shall be consolidated into a single entity, effective upon filing with the Secretary of State or as soon thereafter as practicable; and

WHEREAS, The Governor issued Executive Order 14-05, which purports to transfer the Illinois Commission on Volunteerism and Community Service (which the Order appears to rename as "Serve Illinois") from the Department of Human Services to the Department of Public Health; and

WHEREAS, The Department of Public Health and the Department of Human Services are agencies directly responsible to the Governor; and

WHEREAS, Because Executive Order 14-05 transfers an agency to the jurisdiction and control of another agency, Executive Order 14-05 is an executive reorganization order; and

WHEREAS, Because Executive Order 14-05 contravenes the Illinois Commission on Volunteerism and Community Service Act, Executive Order 14-05 is hereby deemed a reorganization order that is subject to Section 11 of Article V of the Illinois Constitution and the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-05 in its entirety was delivered to the Secretary of the Senate and the Clerk of the House of Representatives on April 1, 2014; and

WHEREAS, The 60-day period for the General Assembly to disapprove Executive Order 14-05 expires on May 31, 2014; and

WHEREAS, Executive Order 14-05 specifically cites the Governor's reorganization authority, "in pertinent part", to: (1) transfer the whole or any part of an agency, or the whole or any part of the functions thereof, to the jurisdiction and control of any other agency (subsection (1) of Section 3.2 of the Executive Reorganization Implementation Act); and (2) abolish the whole or any part of any agency which does not have, or upon the taking effect of reorganization will not have, any functions (subsection (4) of Section 3.2 of the Executive Reorganization Implementation Act); and

WHEREAS, While Executive Order 14-05 transfers the Illinois Commission on Volunteerism and Community Service from one agency to another, Executive Order 14-05 does not abolish an agency or completely remove any agency's functions, in conformity with the authority it cites; and

WHEREAS, Subsection (c) of Section 4 of the Executive Reorganization Implementation Act requires every Executive Order reorganizing executive agencies to transfer employees serving under the Personnel Code who are engaged in the performance of a function transferred to another agency; and

WHEREAS, Executive Order 14-05 provides that the staff of the Department of Human Services engaged in the performance of the transferred functions may be transferred to the Department of Public Health; therefore, Executive Order 14-05 contains a permissive transfer of employees, rather than a mandatory transfer, in violation of subsection (c) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, The Governor issued Executive Order 14-06, which purports to (1) create within the Illinois Criminal Justice Information Authority the Illinois Data Exchange Coordinating Council, (2) create a board of directors for the Illinois Data Exchange Coordinating Council, and (3) create the Advisory Committee to advise the board of directors of the Illinois Data Exchange Coordinating Council; and

WHEREAS, Executive Order 14-06 gives the Illinois Data Exchange Coordinating Council the authority to establish policy, standards, and strategies for designing, developing, funding, implementing, and operating an integrated criminal justice information sharing environment; and

WHEREAS, Currently, the Illinois Criminal Justice Information Act gives the Illinois Criminal Justice Information Authority the powers and duties to coordinate the use of criminal justice information, develop and operate information systems, coordinate State and local criminal justice projects, establish policies concerning criminal justice information systems, and advise the Governor and General Assembly on policies relating to criminal justice information systems; and

WHEREAS, The Illinois Criminal Justice Information Authority currently has the authority to evaluate and coordinate policies related to criminal justice information; and

WHEREAS, Because Executive Order 14-06 transfers policy-making and management functions from the Illinois Criminal Justice Information Authority to the newly-created Illinois Data Exchange Coordinating Council in contravention of the Illinois Criminal Justice Information Act, the Order is a reorganization order that is subject to Section 11 of Article V of the Illinois Constitution and the Executive Reorganization Implementation Act; and

WHEREAS, Section 11 of Article V of the Illinois Constitution provides that (i) if an Executive Order proposes a reassignment or reorganization that contravenes a statute, then the Executive Order must be delivered to the General Assembly, and (ii) either house of the General Assembly, by record vote of a majority of the members elected, may disapprove the Executive Order; and

WHEREAS, Executive Order 14-06 was delivered to the Secretary of the Senate and the Clerk of the House of Representatives on April 28, 2014; and

WHEREAS, Because the Governor delivered Executive Order 14-06 to the General Assembly after April 1, the 60-day period for the General Assembly to disapprove Executive Order 14-06 will expire 60 days after the day after the first day of the next annual session; and

WHEREAS, Executive Order 14-06 appoints members to a newly-created board of directors to govern the Illinois Data Exchange Coordinating Council, but the appointment of board members is not subject to confirmation by the Senate, in violation of subsection (b) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 fails to provide for the transfer of employees serving under the Personnel Code who are engaged in the performance of a function transferred to a new entity, in violation of subsection (c) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 fails to provide for the transfer or other disposition of personnel records, documents, books, correspondence, and other property, both real and personal, affected by the reorganization in violation of subsection (d) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 fails to provide for the transfer of unexpended balances of appropriations and other funds available for use in connection with any function or agency affected by the reorganization, as the Governor deems necessary, for use of the agency which has such functions after the reorganization takes effect, in violation of subsection (e) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 fails to provide by a savings clause for the transfer and continuation of the rules, regulations, and other agency actions affected by reorganization, in violation of subsection (g) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 fails to enumerate all Acts of the General Assembly which establish the functions affected by the proposed reorganization, in violation of subsection (h) of Section 4 of the Executive Reorganization Implementation Act; and

WHEREAS, Executive Order 14-06 creates a board of directors for the Illinois Data Exchange Coordinating Council and provides for the employees of certain private organizations to serve as members of the board of directors, delegating public authority to private persons in violation of Section 2 of Article I of the Illinois Constitution and the Illinois Supreme Court's holding in Lasher v. People, 183 Ill. 226 (1899); and

WHEREAS, Section 11 of Article V of the Illinois Constitution provides that an Executive Order reorganizing executive agencies cannot become effective less than 60 calendar days after its delivery to the General Assembly; and

WHEREAS, Executive Orders 14-04 and 14-05 contain effective date provisions which state that each Order is "effective upon filing with the Secretary of State"; and

WHEREAS, Executive Order 14-06 contains an effective date provision that states that the Order "shall take effect immediately upon its filing with the Secretary of State and shall remain in effect until terminated or modified"; and

WHEREAS, Executive Orders 14-04, 14-05, and 14-06 purport to become effective upon filing with the Secretary of State, in violation of Section 11 of Article V of the Illinois Constitution; and

WHEREAS, Executive Orders 14-04 and 14-05 contain several structural and procedural defects; and

WHEREAS, Executive Order 14-06 proposes to improperly reorganize and reassign certain policy-making and management functions from the Illinois Criminal Justice Information Authority to the Illinois Data Exchange Coordinating Council, and several statutory requirements were not met in Executive Order 14-06, thus rendering it defective; and

WHEREAS, Similar to Executive Order 14-06, Executive Order 12-03 was an executive order that did not expressly invoke the Governor's constitutional reorganization authority, but had the effect of reorganizing executive agencies directly responsible to the Governor in contravention of several statutes, and accordingly, the Senate deemed Executive Order 12-03 an executive reorganization order subject to the requirements and limitations of the Governor's constitutional authority pursuant to Section 11 of Article IV of the Constitution and the Executive Reorganization Implementation Act; and

WHEREAS, Senate Resolution 146 disapproved Executive Order 12-03 because it exceeded the Governor's constitutional and statutory authority to reorganize executive agencies; therefore, be it

RESOLVED, BY THE SENATE OF THE NINETY-EIGHTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, that pursuant to Section 11 of Article V of the Illinois Constitution, the Senate hereby disapproves Executive Orders 14-04, 14-05, and 14-06 in their entirety; and be it further

RESOLVED, That Executive Orders 14-04, 14-05, and 14-06 shall not become effective; and be it further

RESOLVED, That copies of this resolution be delivered to the Governor and the Speaker of the House of Representatives.