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ROBERT B. BERLIN

ATTORNEY
DUPAGE COUNTY, ILLINOIS

Opinion 2016-0]
June 21, 2016

The Honorable Daniel J. Cronin
Chairman, DuPage County Board
421 County Farm Rd.
Wheaton, IL 60187

Dear Chairman Cronin:

You have asked my opinion as to the validity of the county board?s current and previous practices
regarding its determination of the compensation of its members and that of the other elected
of?cials.

It is my opinion that the county board acted properly in adopting resolutions FI-O-0011-16, 
0012-16, and FI-O-0013-16 on May 10, 2016. It is similarly my opinion that the board?s
?restatement? of bene?ts set forth by FI-O-0012-16 correctly re?ects historical county board
policy with respect to the compensation and other bene?ts it affords to elected of?cials.

My analysis of the propriety of the county board?s establishment of compensation will begin with
an overview of the county board?s authority in this area as well as a clari?cation as to the meaning
of the term ?compensation? under Illinois law as it applies to elected of?cials. For reasons I will
discuss later, I will address questions pertaining to the State?s Attorney?s compensation separately.

Authority to Determine Compensation

Section 4-10001 of the Counties Code authorizes the county board to ?x the compensation of its
members before the general election at which county board members are elected. 55 ILCS 5/4-
10001. In counties with less than 2 million residents, including DuPage County, the county board
determines the compensation of the county auditor, county clerk, coroner, recorder of deeds,
sheriff, and treasurer in accordance with Division 4-6 of the Counties Code and within the
limitations set forth by that Division. 55 ILCS 5/4?6001 et. seq. Like Section 4-10001, Section 5-
1010 requires the county board to set the compensation of county of?cers at ?a meeting of such
board held before the regular election of the of?cers Whose compensation is to be ?xed.? 55 ILCS
5/5-1010. Unlike most counties operating under township organization, the voters elect the
chairman of the county board in DuPage County for a four-year term. The chairman is not a county
board member and may not simultaneously serve as a county board member. Prior to 1982, and as
is still the case in the overwhelming majority of Illinois counties, the county board elected its
chairman for a two?year term from among its membership and the chairman continued to serve as

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The Honorable Daniel J. Cronin
Page 2

a member of the county board during his or her tenure as chairman. Because the county board has
determined through its apportionment ordinances that the voters elect the county board chairman
and that the county board chairman does not serve as a member of the county board, I believe that
the position of county board chairman in DuPage County is a county of?cer. See 1970. I11. Const.
art. VII. Therefore, the provisions of Section 5-1010 also appear to apply to the
compensation of the chairman of the county board in DuPage County.

In 1995, the General Assembly enacted the Local Government Of?cers Compensation Act, 50
ILCS I45/et. seq., as part of a comprehensive reform of ethics in local government. The new law
superseded the ?meeting before the election? rule and required all units of local government,
including counties, to ?x the compensation of their of?cers at least 180 days before they begin
their terms. 50 ILCS 145/2. Though this enactment, 180 days prior to the start of an of?cer?s term
became the ?oor, rather than the ceiling, on the amount of time that a unit of government can set
that of?cer?s Section 9(b) of Article VII of the Illinois Constitution of 1970 provides that ?an
increase or decrease in the salary of an elected of?cer of any unit of local government shall not
take effect during the term for which that of?cer is elected.? 1970. I11. Const. art. VII. 

The Clerk of the Circuit Court (?Circuit Clerk?) is not a county of?cer. The 1970 Illinois
Constitution regards Circuit Clerks as nonjudicial members of the judicial branch of State
government. Drury v. County of McLean, 89 Ill. 2d 417 (1982). Nevertheless, Section 27.3 of the
Clerk of Courts Act, 705 ILCS 105/ et. seq, requires a county board to determine the compensation
of the circuit clerk in its county subject to speci?c parameters. 705 ILCS 105/27.3. The regional
superintendent of schools (?regional superintendent?) also is not a county of?cer. The regional
superintendent is the ?chief administrative of?cer of an educational service region.? 105 ILCS
Section 3?2.5 of the School Code, 105 ILCS 5/ et. seq. permissively empowers a county
board to ?provide for additional compensation for the regional superintendent? if it chooses.

The Local Government Of?cers Compensation Act applies to the ?compensation of elected
of?cers of school districts and units of local government.? By its own terms, this Act does not
apply to Circuit Clerks who are members of the judicial branch of State government. 50 ILCS
145/2. Further, ?the provisions of section 9(b) of article VII of the Illinois Constitution of 1970
do not apply to the circuit court clerk.? 1973 Op. Atty. Gen. 171, No. 8-639. While Section 13
of Article VI (?The Judiciary?) prohibits the diminishment of salaries to take effect during a term
of of?ce, the restriction is limited to the salaries of judges. 1970. 111. Const. art. VI. ?14. Similarly,
neither the Illinois Constitution nor State law denotes an ?educational service region? as a unit of
local government or as a school district. Thus, the Local Government Of?cers Compensation Act
and the prohibitions contained in Section 9(b) of Article VII of the Constitution appear to be
inapplicable to the salaries of regional superintendents.

Compensation Under Illinois Law

The leading case addressing elected of?cial compensation in Illinois is Harlan v. Sweet, 139 Ill.
2d 390 (1990). In Harlan, the Illinois Supreme Court considered whether ?xed annual stipend
payments to county treasurers authorized by the General Assembly and paid from state funds could
take effect during a treasurer?s current term of of?ce. The court focused its analysis on Section

The Honorable Daniel J. Cronin
Page 3

9(b) of Article VII of the Illinois Constitution of 1970, which expressly prohibits increases or
decreases in the salaries of local government of?cers, including county treasurers, during their
term of of?ce. 1970. Ill. Const. art. VII. The case turned on whether these ?stipends?
constituted salaries.

The Harlan court concluded that the legislatively adopted stipends would unconstitutionally
increase the salaries of the treasurers if they became effective during their current terms. Harlan,
139 111.2d at 394. The court noted that its previous opinions consistently described the term
?salary? as ?a ?xed, annual, periodical amount payable for services and depending upon the time
of employment and not the amount of services rendered.? Id. Since the stipends authorized by the
General Assembly conformed to this description, the court reasoned ?regardless of how the
legislature has phrased it, [if the stipends] were effectuated, [they] would serve to increase the
treasurers? salaries during their elected terms of of?ce, which the constitution forbids.? 1d. at 390.

The Harlan court rejected the treasurers? urging to give meaning to the difference between the
language in Article VII of the present constitution and its historical antecedent in the 1870 Illinois
Constitution. The treasurers argued that because the previous constitution had prohibited mid-term
changes in the ?fees, salary or compensation? of county elected of?cials, the 1970 State
Constitution?s use of only the term ?salary? for the same purpose was signi?cant.

Of this, the court said the following:

?Plaintiffs argue that the absence in the local government article of the same
provision prohibiting compensation other than salary allows an increase in
compensation other than salary for local government of?cials. We are not
persuaded. We note ?rst that the ?stipend? that the legislature has created is not
compensation other than salary. We also note that the terms ?salary? and
?compensation? are virtually synonymous (Cummings v. Smith (1937), 368 Ill. 94,
99, 13 69) and are used interchangeably in these provisions of the
constitution. The term ?salary? is merely more commonly used to describe the
payment that elected of?cials receive for their services, just as the term ?wages? is
more commonly used to describe the payment that some laborers receive and
?commission? is the term used to describe the payment that some salespeople
receive. It is simply hard to envision how these elected of?cials, who are paid by
way of salary, can be given more money for the performance of their duties and
have it be termed something other than salary. In fact, the ?no other compensation
for their service provision in the executive article is merely designed for the same
purpose as the provision in the local government article that eliminates the fee
system, although stated differently. (Ill.Ann.Stat., 1970 Const., art. V, 21,
Constitutional Commentary, at 367-68 (Smith-Hurd 1971).) As such, we ?nd
plaintiffs? argument unpersuasive.? Id. at 397-8.

The Harlan court held that the terms ?salary,? ?stipend,? and ?compensation? are synonyms,
which it de?ned as ?xed, annual, periodical amounts payable for services depending on the time
of employment, and not the amount of services rendered.

The Honorable Daniel J. Cronin
Page 4

The Harlan court?s approach is in accord with the General Assembly?s treatment of compensation
issues for county of?cers as well as for the Circuit Clerks and regional superintendents. The
provisions of the Counties Code, the Clerk of Courts Act, and the School Code that authorize
county boards to determine the compensation of these various of?cers, do so exclusively in terms
of the annual salaries paid those of?cers and use the terms ?salary and ?compensation?
interchangeably. The legislature?s treatment of these terms is fully consistent with the Harlan
court?s analysis that the term ?compensation? is synonymous with ?salary.?

I am aware that some individuals suggest that the General Assembly signi?cantly broadened the
de?nition of ?compensation? through its enactment of Article XX of the Code of Civil Procedure
(?Article captioned ?Recovery of Fraudulently Obtained Public Funds.? 735 ILCS 5/20-101.
Article de?nitional section in relevant part states as follows:

?As used in this Article:

(1) ?Compensation, bene?ts or remuneration? includes regular compensation,
overtime compensation, vacation compensation, deferred compensation, sick pay,
disability pay, sick leave, disability leave, medical, dental, optical or other health
bene?ts, pension or retirement bene?ts or any other pay, compensation, bene?ts,
or any other remuneration.? Id.

This approach urges us to conclude that through this enactment, the General Assembly de?ned the
term ?compensation,? by itsel? to mean ?regular compensation, overtime compensation, vacation
compensation, deferred compensation, sick pay, disability pay, sick leave, disability leave,
medical, dental, optical or other health bene?ts, pension or retirement bene?ts or any other pay,
compensation, bene?ts, or any other remuneration.? I believe the General Assembly?s own choice
of language counsels strongly against this conclusion. It is clear to me that the General Assembly
did not supply a de?nition for the term ?compensation,? rather it de?ned the phrase
?compensation, bene?ts or remuneration.? In fact, the General Assembly uses the phrase
throughout Article XX but never uses the term ?compensation? by itself. 735 ILCS 5/20-100 et.
seq.

The clearest expression of the intent of a legislative body is the words it uses in its enactments.
(?When interpretng a statute the primary function of [the] court is to ascertain and give effect to
the intent of the legislature.? (People v. Beam (1979), 74 Ill. 2d 240; see MCI Telephone Corp. v.
Illinois Commerce Comm ?n (1988), 168 Ill. App. 3d 1008.) The language used in the statute is the
primary source for determining legislative intent. People ex rel. Gibson v. Cannon (1976), 65 Ill.
2d 366.) If the language is certain and unambiguous this court need not refer to the legislative
history, but must enforce the statute as enacted. Gibson, 65 Ill. 2d 366.?
Bus. Prof?l People for the Pub. Interest v. Ill. Commerce Comm?n, 146 Ill. 2d 175, 207, 585
1032, 1044 (1991)). The General Assembly intended for Article XX to provide a cause of
action in favor of governmental entities for them to recoup anything of monetary value that any
person fraudulently obtained from a unit of local government or a school district. To facilitate this
purpose, the legislature broadly de?ned the ?umbrella? phrase ?compensation, bene?ts or

The Honorable Daniel J. Cronin
Page 5

remuneration? so as encompass virtually everything the three terms could collectively include and
bring it into the scope and reach of Article XX.

Aside from the plain text of Article XX, there are at least two other items of signi?cance that
counsel against a conclusion that the General Assembly regards ?compensation? differently than
did the Harlan court. First, Section 20-101 of the Code of Civil Procedure which supplies a
de?nition for ?compensation, bene?ts, or other remuneration,? does so only for the purposes of
Article XX and not for other, more general purposes in Illinois law. 735 ILCS 5/20-101 et. seq.
Even if Section 20-101(1) de?ned the term ?compensation? as broadly as some suggest, that
de?nition would not be dispositive of a discussion of compensation outside of Article XX. The
second item of interest is the timing of the Harlan opinion itself. The Illinois Supreme Court
rendered the Harlan opinion in late 1990 four years after Public Act 84-1462, by which the
General Assembly enacted Article XX, became law. When it decided Harlan, the court could
have relied heavily on Article XX to guide its analysis, but it did not even mention the de?nition.
If the Illinois Supreme Court believed Article XX was controlling, or in any way relevant, to its
decision in Harlan, it would have at least cited to it.

Elements of the 2016 Ordinances

DuPage County Ordinances FI-O-0011-16, I-O-0012-16, and (collectively ?the
2016 Ordinances?), taken together, address ?ve key concepts: 1) the salary paid to various elected
of?cials in each of the next four subsequent ?scal1 years, 2) the elected of?cial?s participation in
various insurance programs, 3) the availability of a vehicle allowance for select elected of?cials,
4) the ability of elected of?cials to participate in statutorily-authorized pension programs, and 5)
the ability of elected of?cials to participate in other bene?ts available to all county employees. I
will address each of these concepts separately.

1) Salary Paid

Since at least 2000 and likely before the county board has made adjustments to the salaries of
the various elected of?cials by approving a resolution establishing a salary schedule for the next
succeeding four ?scal years. Typically, the county board adopted these salary resolutions in the
spring of even numbered years for the of?ces appearing on the November general election ballot.
FI-O-0012-16 and FI-O-0013-16 are similar to the previous resolutions in that they set forth salary
schedules, however they also reference other forms of compensation or bene?ts not addressed in
previous biennial resolutions. As these resolutions have always determined the annual amounts
paid to elected of?cials for the performance of their duties in speci?c ?scal years, they clearly
provided for the compensation of elected of?cials in the manner contemplated by law.

 

1 The county?s ?scal year begins on December 1, as do the terms of the county of?cers, the Circuit Clerk, and the
State?s Attorney following their elections. Any changes to their compensation coincide with the start of a new ?scal
year. Because the terms of the chairman and members of the county board begin on the ?rst Monday in December
following their election, ordinances that set their compensation make their changes effective on the ?rst Monday in
December. The regional superintendents begin their terms on July 1. Ordinances that make changes to the additional
compensation for the regional superintendent do so on July 1.

The Honorable Daniel J. Cronin
Page 6

2) Insurance Participation

Section 5-1069 of the Counties Code broadly authorizes county boards to ?self-insure, for the
bene?t of its employees, all or a portion of the employees' group life, health, accident, hospital,
and medical insurance, or any one or any combination of those types of insurance.? 55 ILCS 5/5-
1069. Paragraph of that section de?nes the ?term ?employees? elected or
appointed of?cials but does not include temporary employees.? This provision of Illinois law
became effective in October of 1975 pursuant to Public Act 7 9?357.

In 1977, the county board adopted at least one resolution providing for employee insurance
coverage. While there is anecdotal evidence that county elected of?cials, including
members of the county board, participated in this coverage from its inception, I have not located
nor been provided with documentation re?ecting the actual date the practice commenced. What is
clear is that the practice exists today and has existed since at least 1992. My staff has located two
advice of counsel memoranda issued under State?s Attorney Jim Ryan that provide
contemporaneous evidence that county board members were participating in the insurance
programs prior to 1992.

The resolutions pertaining to insurance that I have examined occasionally utilize the term ?eligible
employees? to describe who may participate in the insurance programs. It is my understanding that
since at least 1992 and likely well before then the county board has understood the terms
?eligible employees? or ?employees? to include elected of?cials consistent with Section 5-
1069(e). 55 ILCS County board members are and have been aware for years that
elected county of?cials, including themselves, participate in the county?s insurance programs.
Local media too has from time-to-time reported on the practice. The county board, nevertheless,
has never questioned the interpretation that elected of?cials are employees for insurance purposes,
expressed disagreement with it, nor, until May 10, 2016, chosen to enact subsequent resolutions
with more precise language.

In my opinion, the county board?s interpretation of its resolutions is both reasonable and consistent
with the authority Section 5-1069(e) confers. For this reason, I believe the county board properly
authorized elected of?cials to participate in the county?s insurance programs prior to May 10, 2016
when it approved FI-O-0011-16. In this respect, 1-16 accurately restates county board
policy.

Having determined that the county board properly established the insurance bene?t, I will now
address the question of whether the bene?t constitutes compensation under Illinois law. If it does
not, then the county board may eliminate or change the bene?t at any time.

In 1974, Attorney General William Scott opined that employer-paid contributions for retirement
and insurance programs did not constitute salary. 1974 Op. 111. Att?y Gen. N0. 8-830. Similar to
the analysis later conducted by the Harlan court, General Scott began his analysis of the question
by reviewing a number of Illinois Supreme Court cases, as well as opinions of courts in other
states, which analyzed the meaning of the term ?salary.? Noting that Black?s Law dictionary
de?ned salary as ?a ?xed periodical compensation paid for services rendered? and the Illinois
Supreme Court?s opinion that ?salary is a ?xed, annual, periodical amount payable for services

The Honorable Daniel J. Cronin
Page 7

and depending upon the time of employment and not the services rendered,? General Scott noted
that

?Implicit in these de?nitions of the word ?salary? is that an amount or sum
of money is actually paid to the employee. Since employer contributions to
insurance programs, whereby the employee is insured, and retirement plans,
whereby the employee is the bene?ciary, are never paid directly to the employee,
these contributions do not fall within the scope of the de?nition of the word
?salary?? Id. at 4.

In light of the subsequent holding in Harlan, and the language used by the General Assembly in
the Counties Code, the Clerk of Courts Act and the School Code, I am persuaded by General
Scott?s analysis that employer contributions for retirement and insurance plans do not constitute
salary and therefore do not constitute elected of?cial compensation under Harlan.

Four years after Harlan, Attorney General Roland Burris opined that the addition of health
insurance bene?ts during an elected of?cial?s term of of?ce constitutes a prohibited and
unconstitutional increase in his salary. 1994. 111. Op. Att?y Gen. No. 94-022. General Burris began
his analysis with the observation that Illinois courts had not yet addressed the speci?c issue and
brie?y discussed a line of cases concluding with Harlan that held that ?salary? and
?compensation? were synonymous terms. He also noted that no Illinois court had addressed
whether the constitutional prohibition against mid-term salary changes covered changes to ?fringe
bene?ts.?

Finding no controlling precedent in Illinois law, General Burris turned to Ohio and discussed State
ex. rel. Parsons v. Ferguson, 348 692 (Ohio 1976), an opinion rendered by the Supreme
Court of Ohio. In State, the Ohio Supreme Court adopted the reasoning of one of its appellate
courts rendered in 1969, and held that ?fringe bene?ts may not constitute ?salary,? in the strictest
sense of that word, but they are compensation.? Persuaded by the Ohio court and the similarity of
Illinois law to Ohio law, General Burris summarily concluded that fringe bene?ts are ?clearly?
part of an of?cer?s compensation and that ?coverage generally may not be initiated during the
current term of of?ce of the incumbent of?cers without violating the Constitution.? Id. at 3. Two
years later, Attorney General Jim Ryan went a step further and opined a public body must make
any contemplated changes in the insurance coverage of its elected of?cials in accordance with the
Local Government Of?cer Compensation Act though he did not discuss General Burris?s
analysis. 1996 111. Att?y Gen. Op. No. 96?039.

While I ?nd General Scott?s approach to be more persuasive than General Burris?s, I agree with
General Burris that insurance bene?ts are valuable. As the Ohio Supreme Court noted, an of?ce
holder bene?ts ?nancially when a portion of his or her health care costs are paid from public funds.
State. ex. rel. Parsons v. Ferguson, 348 at 693. I believe in principle that a mid-term
provision of insurance coverage constitutes the type of activity by elected of?cials that Section
9(b) of Article VII of the Illinois Constitution was intended to prevent. The Harlan court noted
that the constitutional prohibition against mid-term changes in compensation is premised on two
principles: the power to increase one?s salary (compensation) should not be used to in?uence

The Honorable Daniel J. Cronin
Page 8

the performance of an Of?ceholder, and (2) a person ought not to be able to increase his or her own
salary (compensation).? Harlan, 139 Ill.2d. at 395. Certainly, public policy, in general, militates
against mid-term changes in compensation.

Unfortunately, neither General Burris nor General Ryan discussed how to quantify changes in
compensation when compensation is something other than salary paid in ?xed periodic payments
to an elected of?cial. General Burris opined that a local unit of government could not initiate
insurance coverage mid-term for an elected of?cial unless it had authorized the coverage before
the of?cial began his term. General Ryan opined that a unit of local government could not suspend
its payments for an elected of?cial?s insurance coverage during the of?cial?s present term. Both
actions, the Attorneys General opined, constituted impermissible changes in compensation. Left
unanswered, or perhaps unasked, is the question of whether a public body can make changes to
the insurance coverage it offers all employees that affect an elected of?cial during his or her term.
Though General Ryan was speci?cally focusing on the discontinuance of employer-paid insurance
bene?ts, a logical extension of his reasoning could prevent the county board from making any
changes to an elected of?cial?s insurance coverage during his or her term of of?ce. I am
particularly concerned that this approach could have the practical. effect of making it functionally
impossible for a county to administer a self-insured program properly, like the one in place in
DuPage County, when the group plan includes elected of?cials even though the General Assembly
speci?cally authorized their inclusion in group insurance bene?ts. 55 ILCS 

As you know, the county board has selected a third party plan administrator to manage the self-
insured insurance program it sponsors for the bene?t of county employees. Unlike in a
conventional group insurance program, an employer that sponsors a self-insured program does not
make ?xed insurance premium payments on behalf of its employees. Instead, the employer pays
insurance claims (other than extremely large claims) from a fund to which both the employer and
the participant contribute. While a participant?s contributions are ?xed based on an annual
actuarial estimation of what portion of the total risk pool that participant is expected to represent,
the employer?s contributions must always be suf?cient to ensure that the fund can pay all
qualifying claims made against it regardless of the initial estimation. A participant who makes no
claim against his or her insurance plan, for example, does not trigger the expenditure of any public
funds. Conversely, a participant with a chronic medical condition may make a series of large
claims against the plan and represents a signi?cant employer cost. Though an employee
contributes speci?c, ?xed and periodic amounts toward the self-insured fund based on the
employee?s selected insurance plan, the employer does not. In fact, the employer never pays
individual claims identi?able by employee. Rather, the employer provides periodic lump sum
payments to its third party plan administrator to cover all pending claims in the aggregate. For this
reason, except in rare instances where an individual employee?s claims are large enough to trigger
the employer?s ?excess? insurance coverage, the employer is typically unaware of what speci?c
employee is incurring what speci?c costs a result consistent with the Health Insurance Portability
and Accountability Act (HIPAA).

In the context of elected of?cial compensation, a public employer?s payments under its self-
insured program are neither ?xed nor periodic and vary depending on the aggregate claims made

The Honorable Daniel J. Cronin
Page 9

by all participating employees, including elected of?cials. Even if HIPAA authorized a public
employer to determine through its plan administrator what portion of its costs were attributable to
a speci?c employee, and the employer was inclined to do so, the costs would depend entirely on
the medical needs of the employee at any given time. In the context of a speci?c elected of?cial,
the monetary amount of the insurance bene?t may vary widely during any given year based on
that of?cial?s particular medical needs and the health plan he or she has selected.

Additionally, changes in federal and state law and the administrative rules that implement those
laws directly and unpredictably in?uence the cost and availability of health insurance. The county
board makes annual adjustments to its self?insured program to re?ect regulatory and market
conditions as well as to control the overall cost of the program adjustments which are applicable
to all program participants.

Cost management of a self-insured program is a complicated process that involves careful
calibration of employer costs, employee costs, and available bene?ts in relation to the healthcare
market. The county board, with the advice of its consultants, determines what types of coverage
plans it will offer to its employees and how to allocate the anticipated costs between employer and
employee. If insurance bene?ts are compensation, none of these changes could become effective
for an elected county of?cer during that of?cer?s term of of?ce. This would be particularly
problematic in situations where a third party plan administrator no longer offers a previously
available plan or where market conditions make a plan too expensive for the county to offer on the
same terms. The county board?s plan management also includes determining whether it will use
credits or surcharges to in?uence healthy lifestyle choices or provide an incentive for an employee
to obtain their coverage elsewhere in the form of opt out payments. The county board makes these
decisions with the goal of balancing the overall cost of the program and the bene?ts the plan
provides its employees against budgetary pressures.

In recent years, these management efforts have led to the discontinuation of certain insurance
plans, the introduction of new plans, rebalancing projected insurance costs between the county and
its employees, and incentivizing employee participation in lower cost plans and various wellness
programs. The county board made many, but not all of these changes, in response to new
requirements that Congress enacted as part of the Affordable Care Act changes which it could
not have properly made if insurance bene?ts constitute compensation or were ?xed for four-year
periods.

Further, DuPage County employs approximately 2,200 employees. The limitations on changes in
compensation imposed by the Local Government Compensation Act and Article VII, Section 9 of
the Illinois Constitution apply to 25 elected of?cials. Some of these of?cers are elected for four-
year terms, others for two?year terms, and as few as nine may face election during a given election
cycle. If the insurance bene?ts available to an elected of?cial constitute compensation that the
county board cannot change during an of?cial?s term of of?ce, then the county board would be
required to maintain a myriad of overlapping insurance plans and pricing schedules to
accommodate grandfathered elected of?cials. In addition to creating additional administrative
costs, this result runs contrary to the very purpose of establishing a group insurance program in
the ?rst place.

The Honorable Daniel J. Cronin
Page 10

As I have explained, I do not believe that health insurance bene?ts are necessarily a form of
compensation under Illinois law. The approaches taken by Generals Burris and Ryan require a
departure from the previous, and more rigid, understanding of compensation in favor of broader
interpretation of the term. I believe this framework requires a different understanding of the
concept of changes in compensation as well. If however insurance bene?ts are indeed
compensation under Illinois law, the county board?s resolutions dating to 1977 properly conferred
that compensation upon its elected of?cials. The county should regard this compensation as ?the
ability to participate or not participate in the insurance bene?ts the county from time-to-time offers
to its employees and on the same terms? rather than in terms of the speci?c programs or polices
which the county board made available prior to the commencement of an elected of?cial?s term of
of?ce. This would appear to harmonize the Attorneys General?s analysis and the public policy and
constitutional bar against mid-term changes in compensation with the practical considerations
associated with maintaining a group insurance program.

3) Vehicle Allowances

Prior to 1998, the county assigned vehicles to the county of?cers as well as to the Circuit Clerk
and regional superintendent. It also provided a vehicle allowance to various county staff members.
In April of 1998, the county board authorized a vehicle allowance for the county board chairman.
In 1999, the county board authorized a vehicle allowance for the county treasurer in
lieu of an assigned vehicle because his existing vehicle was due to be replaced. FI-0067-99. In
November 2000, in addition to making vehicle allowances available to additional county staff
members, the county board increased the vehicle allowance to $450. The county board?s resolution
also speci?cally provided that County Board Chairman is authorized to, where mutually
agreed to, substitute this [vehicle] allowance in lieu of an existing County vehicle for Elected
This was the last known action of the county board with respect to
vehicle allowances for county elected of?cials until its adoption of the 2016 Ordinances.
Nevertheless, the county board did acknowledge the ongoing existence of the allowances in every
?nancial plan it adopted since 2008.

In general, a ?xed vehicle allowance is regarded as compensation under Illinois law. In DeSutter
V. South Moline Township Board, 96 Ill.2d. 372 (1983), the Illinois Supreme Court held that ?xed
expense accounts, for which the recipient need not account, constitute compensation for an elected
of?cial. This conclusion is entirely consistent with the court?s later holding in Harlan given the
nature of the ?xed, annual, and periodic payments to the elected of?cial. While I believe a similar
conclusion should be drawn here, the allowances the county affords to its elected of?cials may be
distinguishable since, with the exception of the chairman and the treasurer, the allowance is
available only in lieu of a county-assigned vehicle. Regardless of whether the vehicle allowances
constitute compensation, it is my opinion that the county board validly, although perhaps
obliquely, approved them for countywide elected of?cials in 2000. Obviously, it would have been
preferable (and extremely helpful) for the county board to have speci?cally identi?ed, by title, the
elected of?cers to whom the county had assigned a vehicle, since at the time, information as to
who had a county vehicle would have been readily available. Fortunately, for the purposes of this
opinion, the county?s Division of Transportation was able to determine, based on fueling records,

The Honorable Daniel J. Cronin
Page I I

that in 2001, the State?s Attorney, Circuit Clerk, county clerk, coroner, recorder, and sheriff were
still utilizing their county-assigned vehicles, and based on employee recollection, that the auditor
and regional superintendent had recently turned in their vehicles. It is extremely unlikely that the
county assigned any of these of?cers their ?rst county vehicle after the county board authorized
the allowance in lieu of in 2000. By 2008, based on the county?s ?nancial plans, it appears that
most of the elected of?cials had transitioned from county vehicles to the vehicle allowance.

I believe that the county board properly established a vehicle allowance or a vehicle allowance in
lieu of a vehicle for all of the ?countywide? elected of?cials through Resolutions FI-
0067-99, and FI-0174-00 in the amount of $450 per month. Further, because the county board had
not repealed or superseded these resolutions prior to May 10, 2016, I believe they were still
effective on that date. See 2000 Ill. Op. Att'y Gen. No. 00?013. therefore correctly
restates these enactments.

4) Pension Participation

Article 7 of the Illinois Pension Code, 40 ILCS 5/et. seq., creates the Illinois Municipal Retirement
Fund (IMRF). The county has been a participating municipality in IMRF since 1937. 
The de?nition of ?employee? with respect to IMRF includes a person who ?[h]olds an elective
of?ce in a [participating] municipality.? 40 ILCS An elected of?cial becomes a
?participating employee? upon ?ling notice with IMRF that he or she desires to participate in the
fund. 40 ILCS However, an elected of?cial cannot become a ?participating
employee? if they occupy an of?ce normally requiring performance of duty for less than 1000
hours per year? and the governing body of that unit of government has voted to exclude them from
participation. 40 ILCS In 1992, the county board excluded all positions, including
those of elected of?cers, which require less than 1,000 hours per year from participation in IMRF.

Resolution FI-0042-92 determined that the State?s Attorney, Clerk of the Circuit Court, the county
of?cers, and the chairman and the members of the county board quali?ed for participation in IMRF
as of 1937. 2 In 1997, the county board adopted Resolution which also provided that
the same positions were eligible for participation in IMRF, and that elected of?cials could continue
their participation in IMRF if the positions normally required 1,000 hours of duty per year. These
resolutions evidence the county board?s certi?cation that the normal duties of the of?ces of
aforementioned elected of?cials required at least 1,000 hours per year and therefore quali?ed
of?ceholders for IMRF participation. Once the county board determines that the duties of a
particular of?ce requires the number of hours to qualify its holder to participate in IMRF, an
Of?ceholder is free to participate, or not participate, in accordance with the provisions of the
Illinois Pension Code. Other than its authority and duty to determine the number of hours the duties
of a given position normally require, a county board has no authority to permit or bar an elected
of?cial from participating in IMRF.

 

2 The regional superintendent is a ?teacher? within the meaning of Section 16-106 of the Pension Code and by law
participates in the Teachers' Retirement System (TRS) of the State of Illinois rather than IMRF. 40 ILCS 
The county board is not required nor authorized to determine the regional superintendent?s eligibility to participate in
TRS.

The Honorable Daniel J. Cronin
Page 12

provides that the county?s elected of?cials may ?participate in any pension plan
authorized by the Illinois Pension Code.? As the county board previously determined that all of
the IMRF-eligible elected of?ces referenced in the resolution occupy of?ces the duties of which
normally require 1,000 hours per year to perform, FI-O-0011-16 is an accurate restatement of
county policy.

5) Other Bene?ts

The County also makes additional optional bene?ts to its employees. These optional bene?ts,
include various deferred compensation programs, enhanced life insurance policies, prepaid legal
services, or corporate employer discounts, and are offered through, but at no cost, to the county.
Employees (or elected of?cials) who wish to participate in these programs do so at their own
expense. All of these ?optional bene?ts? are offered by private vendors and none that I am aware
of contemplate the payment of any ?salary? or ?compensation? to a participating elected of?cial.
The county has at various times by resolution provided for these voluntary bene?ts. FI-165-88, FI-
0141A-08, 

For the reasons I have previously explained, I do not believe these bene?ts constitute compensation
under Harlan, but the county board has nevertheless properly approved them at various times.

Implied Repeal of Previous Ordinances

I understand that there remains a question as to whether certain aspects of an elected of?cial?s
compensation or bene?ts are extinguished when the county board adopts a subsequent resolution
establishing a salary. For example, if the county board properly approved compensation in the
form of car allowances in 2000, a question arises as to whether it implicitly sunset the car
allowance two years later when it next adopted salary schedules with no mention of the allowance.

Under Illinois law, implied repeal results from some enactment the terms and necessary
operation of which cannot be harmonized with the terms and necessary effect of an earlier act, and
therefore the last expression of law prevails since it cannot be supposed that the lawmaking power
intends to contradict and enforce laws which are contradictions. Rosehill Cemetery Co. v. Lueder
(1950), 406 111. 458. It is also essential that the implication, to be operative, must be necessary.?
Rosehill Cemetery Co. v. Lueder, 406 I11. 458 (1950), Northwestern University 12. State, 56
Ill.App.3d 305, (lst Dist. 1977).

Further, ?[r]epeal by implication is not favored, and even if there is an apparent inconsistency
between two laws, they will be construed, insofar as possible, so as to preclude an implied repeal
of the earlier by the later. People v. Isaacs, 37 Ill.2d 205 (1967). It is only when there is a clear
repugnancy and both acts cannot be carried into effect that the former is impliedly repealed. City
of Geneseo v. Illinois Northern Utilities Co., 378 506 (1941); Dingman v. People, 51 I11. 277
(1869).? Northwestern University v. State, 56 Ill.App.3d at 309.

Here, the county?s various resolutions establishing salary schedules, insurance bene?ts, vehicle
allowances and other similar bene?ts simply do not con?ict with one another. For example, the
county adopted standalone salary resolutions that do not address vehicle allowances and it adopted

The Honorable Daniel J. Cronin
Page 3

resolutions establishing vehicle allowances that were silent on salary schedules. Even if there was
some question as to any apparent inconsistencies, the rule in Illinois requires us to construe the
provisions, to the greatest extent possible, to preclude an implied repeal of the earlier provision.
The county has also never expressly repealed any of these previous resolutions or ordinances.

I am aware of no authority standing for the proposition that a county board is required to establish
salaries for elected of?cials in advance of each election. In light of the State? 5 policy against repeal
by implication, it is my opinion that once the county board has established compensation by
ordinance, that compensation remains in place under the terms of the ordinance until or unless the
county board expressly repeals the previous resolution or adopts a subsequent resolution in direct
and irreconcilable con?ict with it. As I discussed previously, the Counties Code required county
boards to set compensation by its meeting immediately prior to a general election. The Local
Government Of?cers Compensation Act advanced this deadline to 180 days prior to the
commencement of an of?cer?s new term. These provisions evidence the legislature?s desire to
prevent local units of government from making last minute and perhaps improperly motivated
changes to a likely-to-be-elected of?cer?s salary. In requiring units of local government to make
any changes in of?cer compensation six months advance of an election, the General Assembly
prevented, or at least substantially mitigated the effects of this behavior.3 I do not believe either
provision prevents the county board from maintaining a compensatory status quo through inaction.

I believe this approach to be fully in accord with an opinion issued by Attorney General Jim Ryan
in 2000. 2000 Op. 111. Att?y Gen. No. 00-013. In this opinion, General Ryan examined whether a
transportation assistance payment enacted by a municipality in 1993 was still valid for elected
of?cials serving current terms in 2000. A municipality, even a home rule municipality, is subject
to the provisions of the Local Government Of?cers Compensation Act. 50 ILCS 145/3. Most
municipal elected of?cers serve four-year terms. 65 ILCS 5/et. seq. As was the case in 1993,
voters elect municipal of?cers at consolidated general elections that occur in the spring of odd-
numbered years. The municipality in question authorized transportation assistance payments on
November 2, 1993. Id. at 2. Thereafter, the State conducted consolidated elections in 1995, 1997,
and 1999. The Attorney General opined that if the municipality intended to treat the transportation
assistance payments as additional compensation for elected of?cials when it approved the
payments in 1993, it could not diminish or eliminate the payments during an of?cer?s present term
of of?ce in 2000the law provides that an elected of?cial?s compensation lapses,
as some suggest, if a unit of local government fails to reestablish it prior the start of an of?cial?s
term of of?ce, then this transportation assistance payment would only have been available to
elected of?cials elected in 1995 and only through the expiration of their terms in 1999. Under this
analysis, no elected of?cial, whether in elected in 1997 or 1999 and serving in 2000 would have
been eligible for the payments. This was not the conclusion the Attorney General reached.

Thus, I am of the opinion that despite their omission from the biennial salary schedules, the vehicle
allowance and other ancillary bene?ts remain in effect.

 

3 For most units of local government (other than counties), this six month deadline is well in advance of the last day
for interested candidates to ?le petitions to run for of?ce.

The Honorable Daniel J. Cronin
Page 14

Compensation of the State?s Attorney

The law treats the State?s Attorney differently than it does other officials elected who are elected
on a county-wide basis.

Like Circuit Clerks and regional superintendents, State?s Attorneys are not county of?cers. ?State's
Attorneys are State officers under the language of the constitution, officers.?
Ingemunson v. Hedges, 133 Ill.2d 364 (1990) (citing Hoyne v. Danisch, 264 111. at 470?72 (1914)).
the of?ce of State's Attorney is considered to be part of the executive branch of State
government.? Nelson 12. Kendall County, 2014 IL 116303 (2014). Despite being part of the
executive branch of State government, the Illinois Constitution discusses the compensation of
State?s Attorney?s in its Judicial Article. Const. art. VI. ?19. The Illinois Supreme Court has
therefore held that State?s Attorneys are not subject to the provisions of the Executive Article of
the Constitution which govern changes in compensation. Ingemunson, 133 Ill.2d at 370. Since
State?s Attorneys are part of the executive branch of State government, they cannot be of?cers of
units of local government or school districts. It necessarily follows that the compensation
provisions of Article VII of the Constitution are not applicable to State?s Attorneys either.

Though the provisions for the compensation of the State?s Attorney are set forth in Division 4?2
of the Counties Code, those provisions provide that the now-abolished Compensation Review
Board, rather than a county board must determine the State?s Attorney?s salary. 55 ILCS 5/4?200 1.
That same section also provides that it does not prevent the payment of additional compensation
to the State?s Attorney out of the treasury of the county as may be provided by law. This provision
should not be construed as a grant of authority to the county board to provide the State?s Attorney
with additional compensation. Simply put, the provision does not prohibit additional compensation
if State law otherwise authorizes it. Attorney General Burris furnished a well-reasoned opinion on
this matter in 1993 and arrived at the same basic conclusion. 1993. 111. Att?y Gen. 0p. No. 93-007.

As you know, the county provides the State?s Attorney with a vehicle allowance in lieu of a county
vehicle, as well as access to its insurance programs. For the reasons I have outlined previously, I
do not believe that insurance and pension benefits necessarily constitute compensation, though if
they do, the county board established that compensation, as well as the vehicle allowance properly.
The question then is whether the county board had the authority to confer these bene?ts upon the
State?s Attorney and if so, what the source of that authority is.

With respect to the vehicle allowance, Illinois law imposes on county boards the duty to ?provide
reasonable and necessary expenses for the use of the. . .State's 55 ILCS 5/5?1106. The
county board previously provided for the reasonable and necessary local travel expenses of the
State?s Attorney by assigning him a county vehicle for his use. In 2000, the county allowed a
substitution of the vehicle allowance in lieu of a county vehicle (or mileage reimbursement). I
recently learned that my predecessor nevertheless eschewed the allowance for many years and
continued to utilize his assigned vehicle until 2009. The substitution of a vehicle allowance,
though it assumes the character of compensation, is one of many methods the county board may
have chosen to provide for the State?s Attorney?s local travel expenses. The county board
apparently believed that this method would reduce its maintenance and administrative expenses. 1

The Honorable Daniel J. Cronin
Page I 5

believe Section 5-1106 of the Counties Code confers suf?cient authority on a county board to
provide its State?s Attorney with a vehicle allowance as a means of managing the State?s
Attorney?s reasonable and necessary expenses.

With respect to insurance, and as I previously discussed, Section 5-1069 of the Counties Code
expressly authorizes the county board to extend insurance coverage to employees including
?elected and appointed of?cials.? State?s Attorneys are elected of?cials and, as I explained, it is
my opinion that the county board validly authorized insurance bene?ts for elected of?cials. Even
if I were to construe the term ?elected of?cials? very narrowly and read it so as to include county
elected of?cials, but exclude State elected of?cials, State?s Attorneys nevertheless are paid their
salaries and reimbursed expenses through their respective county. They are therefore employees
of their county for payroll and tax purposes. For this reason, I am of the opinion that even if
insurance bene?ts constitute compensation, State law authorizes the county board to permit its
State?s Attorney to participate in its group insurance programs.

Finally, with respect to State?s Attorney?s participation in IMRF, Section 7-145.1 of the Illinois
Pension Code de?nes the terms ?elected county of?cer? and ?county of?ce? as including the
State?s Attorney. 40 ILCS Though the de?nition is limited to that Section and one
other, it is clear from the context of Article 7 of the Pension Code that State?s Attorneys may
participate in IMRF pension programs. Moreover, the Pension Code also provides that ?[all
receive earnings from general or special funds of a county for performance of
personal services or of?cial duties within the territorial limits of the county, are employees of the
40 ILCS 5/7-109. Thus to whatever extent participation in IMRF constitutes
compensation, it is compensation expressly authorized by the Illinois Pension Code. As I noted
above, the Illinois Pension Code determines the parameters for participation in its programs. The
only role for the county board was to determine that the duties of the State?s Attorney normally
require at least 1,000 hours per year.

I am, of course, cognizant of the fact that I am opining on matters of law that directly affect me.
Though I believe my analysis to be objective, if you would like me to seek the opinion of the
Attorney General on these matters or other matters I have discussed, I will make such a request.

Conclusion

For the forgoing reasons, I believe the 2016 Ordinances are valid and enforceable. At the same
time, albeit it from a philosophical rather than a legal perspective, I am of the opinion that members
of the public should not need to rely on multiple resolutions, in some cases adopted decades apart,
to ?nd out what elected of?cials are being paid and in what attendant bene?ts they may participate.
This is not the fault of this county board or any its predecessors but it is re?ective of how relatively
small incremental changes over the past four decades continue to have an impact years later. I
suspect DuPage County is no different from many other counties in this regard. The DuPage

The Honorable Daniel J. Cronin
Page I 6

County Board took a very signi?cant and helpful step in its adoption of and I hope
'itwill continue in its efforts to provide greater clarity to the public on these matters.

    

State?s Attorney