Illinois General Assembly - Full Text of HB5366
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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:
 
65 ILCS 5/3.1-10-50

    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.


LRB102 25429 AWJ 34715 b

 

 

A BILL FOR

 

HB5366LRB102 25429 AWJ 34715 b

1    AN ACT concerning local government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Municipal Code is amended by
5changing 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
8becomes vacant in municipality with population under 500,000.
9    (a) Vacancy by resignation. A resignation is not effective
10unless it is in writing, signed by the person holding the
11elective 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17    but the resignation may not be withdrawn after it is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6    be withdrawn at any time prior to the occurrence of the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
25office by reason of the death of the incumbent. The date of the
26death may be established by the date shown on the death

 

 

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1certificate. A vacancy occurs in an office by permanent
2physical or mental disability rendering the person incapable
3of performing the duties of the office. The corporate
4authorities have the authority to make the determination
5whether an officer is incapable of performing the duties of
6the office because of a permanent physical or mental
7disability. A finding of mental disability shall not be made
8prior to the appointment by a court of a guardian ad litem for
9the officer or until a duly licensed doctor certifies, in
10writing, that the officer is mentally impaired to the extent
11that the officer is unable to effectively perform the duties
12of the office. If the corporate authorities find that an
13officer is incapable of performing the duties of the office
14due to permanent physical or mental disability, that person is
15removed from the office and the vacancy of the office occurs on
16the 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
25election of an acting mayor or acting president pursuant to
26subsection (f) or (g) does not create a vacancy in the original

 

 

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1office of the person on the city council or as a trustee, as
2the case may be, unless the person resigns from the original
3office following election as acting mayor or acting president.
4If the person resigns from the original office following
5election as acting mayor or acting president, then the
6original office must be filled pursuant to the terms of this
7Section and the acting mayor or acting president shall
8exercise the powers of the mayor or president and shall vote
9and have veto power in the manner provided by law for a mayor
10or president. If the person does not resign from the original
11office following election as acting mayor or acting president,
12then the acting mayor or acting president shall exercise the
13powers of the mayor or president but shall be entitled to vote
14only in the manner provided for as the holder of the original
15office and shall not have the power to veto. If the person does
16not resign from the original office following election as
17acting mayor or acting president, and if that person's
18original term of office has not expired when a mayor or
19president is elected and has qualified for office, the acting
20mayor or acting-president shall return to the original office
21for the remainder of the term thereof.
22    (e) Appointment to fill alderperson or trustee vacancy. An
23appointment by the mayor or president or acting mayor or
24acting president, as the case may be, of a qualified person as
25described in Section 3.1-10-5 of this Code to fill a vacancy in
26the office of alderperson or trustee must be made within 60

 

 

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1days after the vacancy occurs. Once the appointment of the
2qualified person has been forwarded to the corporate
3authorities, the corporate authorities shall act upon the
4appointment within 30 days. If the appointment fails to
5receive the advice and consent of the corporate authorities
6within 30 days, the mayor or president or acting mayor or
7acting president shall appoint and forward to the corporate
8authorities a second qualified person as described in Section
93.1-10-5. Once the appointment of the second qualified person
10has been forwarded to the corporate authorities, the corporate
11authorities shall act upon the appointment within 30 days. If
12the appointment of the second qualified person also fails to
13receive the advice and consent of the corporate authorities,
14then the mayor or president or acting mayor or acting
15president, without the advice and consent of the corporate
16authorities, may make a temporary appointment from those
17persons who were appointed but whose appointments failed to
18receive the advice and consent of the corporate authorities.
19The person receiving the temporary appointment shall serve
20until an appointment has received the advice and consent and
21the appointee has qualified or until a person has been elected
22and has qualified, whichever first occurs.
23    (f) Election to fill vacancies in municipal offices with
244-year terms. If a vacancy occurs in an elective municipal
25office with a 4-year term and there remains an unexpired
26portion of the term of at least 28 months, and the vacancy

 

 

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1occurs at least 130 days before the general municipal election
2next scheduled under the general election law, then the
3vacancy shall be filled for the remainder of the term at that
4general municipal election. Whenever an election is held for
5this purpose, the municipal clerk shall certify the office to
6be filled and the candidates for the office to the proper
7election authorities as provided in the general election law.
8If a vacancy occurs with less than 28 months remaining in the
9unexpired portion of the term or less than 130 days before the
10general 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
17the case of an elective municipal office with a 2-year term, if
18the vacancy occurs at least 130 days before the general
19municipal election next scheduled under the general election
20law, the vacancy shall be filled for the remainder of the term
21at that general municipal election. If the vacancy occurs less
22than 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
3being declared void pursuant to paragraph (3) of subsection
4(c), persons holding elective office prior thereto shall hold
5office until their successors are elected and qualified or
6appointed and confirmed by advice and consent, as the case may
7be.
8    (i) This Section applies only to municipalities with
9populations under 500,000.
10(Source: P.A. 102-15, eff. 6-17-21.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.