Q & A - District Obligations Under the Amended Election Code

November 9, 2010

By Alan M. Mullins

Public Act 96-1008 moved the time period for filing candidate nomination papers from the second and third weeks of January to the second and third weeks of December.  For the April, 2011 school board election, the first day for filing nominating petitions is December 13, 2010, and the final day is December 20, 2010. The period for filing objections to nominating petitions begins after the last day for filing and continues for the five business days following the final filing date.  Accordingly, the last day for filing objections is December 28, 2010.  The amended Election Code provides that the office of the local election official, often the board or district secretary, must be open until 5 p.m. of that last day, regardless of the regular closing time for the office.  Given that most school districts will likely be out for winter break during at least a portion of the five business day period for filing objections, questions have arisen as to how a school district’s local election official can satisfy the legal requirements of the amended Election Code.

  •  Does the District’s Administrative Office have to remain open each business day during the time period for filing objections?

Yes.  The time period for filing objections begins Tuesday, December 21, 2010 and ends at 5:00 p.m. on Tuesday December 28, 2010.

  • What hours must a District’s Administrative Office Remain Open During the Objection Period?

District offices must remain open for at least seven hours on each of the five days objections may be filed.  The Election Code defines a “business day” as “any day in which the office of (the school district) is open to the public for a minimum of 7 hours.”  Days on which the office is not open for at least seven hours would not be a “business day” as defined by the Election Code.

  • Does the District’s Administrative Office have to remain open on December 23, 2010?

Yes.  Friday, December 24, 2010 is a State holiday.  However, Thursday, December 23, 2010 is not a State holiday. Accordingly, a District’s administrative offices must remain open on December 23, 2010.

We acknowledge that there are differing opinions and interpretations of the provisions of amended Election Code discussed herein.  While our reading of the statute is narrow and our advice conservative, a District minimizes its risk of violating the statute by remaining open for seven hours each business day during the objection period including on December 23, 2010, with the District’s administrative office remaining open until 5:00 on December 28, 2010.

If you have any specific questions regarding when your District’s office must remain open during the objection period, please contact Alan Mullins at 312-565-3100, Ext. 236 or amullins@edlawyer.com.

SCHOOL DISTRICT ELECTIONEERING DURING REFERENDUMS

 June 8, 2009

In light of a recent decision of the Illinois Appellate Court involving the distribution of factual information by a school district regarding a pending ballot question, Illinois school districts pursuing referendums must ensure that their communications with taxpayers do not run afoul of Illinois' Election Code.

In 2006, an Illinois school district asked its community to approve a $100 million referendum to provide funds to finance school improvements. Prior to the referendum vote, the school district mailed out, at district expense, newsletters explaining the purpose of the referendum. The school district spent more than $3,000 for the printing and mailing of the newsletters.

A local taxpayer filed a complaint with the Illinois State Board of Elections ("BOE") alleging that the School Board, by sending out the newsletters, qualified as a "local political committee" that was required to follow reporting requirements pursuant to the Election Code. Specifically, the taxpayer argued that the School Board should be considered a "local political committee" within the meaning of the Election Code because the School Board spent more than $3,000 for "electioneering communications." A local political committee is defined as an organization that "makes expenditures during any 12-month period ... exceeding $3,000 for electioneering communications relating to ... any question of public policy .... " "Electioneering communications" are those communications that refer to a clearly identified question of public policy that will appear on a ballot." The taxpayer argued that because the School Board should be considered a "local political committee," it violated the Election Code for failing to comply with reporting requirements imposed upon local political committees.

The BOE dismissed the complaint finding that the newsletters encouraged individuals to vote and communicated only factual information. The decision was appealed and on May 22, 2009, the Appellate Court issued a decision reversing the BOE.

The Appellate Court held that although Illinois law allows a public body to disseminate facts to the public, the public body could still violate the law if the method of dissemination is an "electioneering communication." The Appellate Court determined that the newsletters at issue were "electioneering communications" because they were communications that refer to a "clearly identified question of public policy that will appear on the ballot." The Appellate Court further found that the newsletters were not designed simply to encourage individuals to vote.

Although the case was remanded back to the BOE for further proceedings, absent a reversal from the Illinois Supreme Court, we expect the decision to have significant impact on any school district considering a referendum. If a district sends out written communications providing factual information about a pending referendum or other matter of public policy, and the cost of preparing and sending those communications will exceed $3,000 over a 12- month period, the district would be well advised to register as a local political committee and comply with the political and financial reporting requirements of the Election Code.

We will keep you informed of any future developments in this area. If you have any questions regarding conducting a referendum or compliance with the Election Code, please do not hesitate to call Scariano, Himes and Petrarca.