By James A. Petrungaro


July 5, 2018

             The Illinois Appellate Court has rejected a plaintiff’s attempt to erode the Personnel Records Review Act’s  (“PRRA”) prohibition on publicly disclosing disciplinary records older than four years. At issue in Johnson v. Joliet Police Department  was Johnson’s Freedom of Information Act (“FOIA”) request for a police officer’s “disciplinary history.” The Joliet Police Department (“JPD”) acknowledged that though such records did exist, they could not be disclosed because they were older than four years and the Personnel Records Review Act prohibits the disclosure of such records. That law states: 

An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. 

Thus, the JPD denied the FOIA request. 

            Appealing the JPD’s decision to the Circuit Court and then to the Appellate Court, Johnson argued that the PRRA’s prohibition has no application in the context of a FOIA request because the PRRA also states: “This Act shall not be construed to diminish a right of access to records already otherwise provided by law…” The Appellate Court disagreed with Johnson’s argument, noting that Section 7.5(q) of FOIA specifically exempts from disclosure “information prohibited from being disclosed by the [PRRA].” Therefore, the FOIA did not provide a separate right of access to the disciplinary records. 

            Following Johnson, school districts and other public bodies are free to continue denying FOIA request for disciplinary records older than four years of age. For disciplinary records within four years of a request, Section 7(1)(n) of FOIA – which exempts records “relating to a public body’s adjudication” of disciplinary cases – may be applicable. However, limited application of that exemption has been permitted by the courts and the Public Access Counselor, as it requires a decision by the governing board following a legal process, such as a hearing. 

            If you need assistance navigating the mandatory and permissible exemptions found in FOIA, your attorneys at Scariano, Himes and Petrarca stand ready.


By John Fester and James Petrungaro  

April 16, 2018

In 2016, the Illinois Appellate Court ruled in Hites v. Waubonsee Valley Community College that electronic databases maintained by public bodies are “public records” under the Freedom of Information Act (“FOIA”) and thus can be the basis of a FOIA request. Parsing between general “searches” of databases and the request for records from existing database “fields,” the Appellate Court in Hites ruled that electronic records in databases must be disclosed (absent a qualifying exemption or undue burden upon the School District) unless the request results in the creation of a “record” not previously maintained. For example, under the reasoning in Hites, a school district payroll database including a “field” containing the salary of every administrator would be subject to disclosure if so requested; however, a request for “the number of administrators earning more than $100,000” would not be subject to disclosure under FOIA if that particular database field does not already exist. Thus, even though the requested information/data could be derived from a search of the database, it was not subject to mandatory disclosure under FOIA because it requires the creation of a new record.

A recent decision from the Appellate Court follows the court’s reasoning in Hites and provides additional guidance for responding to FOIA requests that do not identify specific records or database fields. In Martinez v. Cook County State’s Attorney’s Office, issued on March 12, 2018, the Court once again distinguishes between database queries that produce already existing public records and queries that are tantamount to “research” of public records and which produce newly created public records.

Initial Request

 The FOIA dispute began with Martinez’s request for records from the State’s Attorney’s Office (SAO) relating to criminal prosecutions involving the use cell site simulators. These devices help law enforcement to locate, pinpoint and sometimes interfere with cellular communications. Martinez first requested records “for each instance in which information [was] obtained using [stingray] equipment in a criminal prosecution,” including the case identifier, criminal charges at issue, case outcome, stingray evidence used, and certain other information.” (Emphasis added.) The SAO denied the request, first noting that it does not maintain a record identifying which of its thousands of criminal cases specifically relied upon stingray evidence. The SAO also denied the request on the grounds that a search for such instances would be unduly burdensome.

In reviewing whether the SAO complied with FOIA in denying the request, the Appellate Court first ruled that Martinez had not “reasonably described a record.” The court noted that FOIA requires a requester to “reasonably identify” the record being sought and may not simply seek “data, information and statistics” that must be “gleaned generally” or otherwise “extracted” from records maintained for other purposes. Thus, while it was undisputed that the SAO possessed records containing the data Martinez generally sought in his request, because the SAO does not specifically maintain records already cataloged or organized in a form specifically responsive to the request, the SAO was permitted to deny the request. In other words, the Appellate Court determined that querying and compiling the information responsive to Martinez’s request would have required the creation of a new record – a task not required by FOIA.

Second Request

 After the initial request was denied, Martinez attempted to revise and/or narrow his request. Concerning stingray records used in criminal prosecutions related to narcotics and terrorism cases, he requested that the SAO:

  1. “Send an email to every attorney in the SAO and ask each to identify, based on memory, any cases in which evidence was obtained using a stingray.”

  2. Conduct a server-side centralized search of e-mails for “stingray,” “IMSI catcher,” and “cell site simulator” and produce any non-exempt records.

    The SAO once again denied the request as unduly burdensome. In reviewing the denial, the Appellate Court quickly dispatched the notion that FOIA requires any polling, questioning or other query of the memories of SAO attorneys to identify specific cases that would have responsive records. Such a request for a “search” and not a “public record” itself, the court held, was not required by FOIA. 

    Concerning the request for a server-search of emails containing specific keywords, the Appellate Court considered such a search to be the search of a database. The Court first noted that an electronic search of a public body’s electronic database is the electronic equivalent of “copying” public records. The Appellate Court found that generally, databases and their aggregate data are public records that must be disclosed unless some exemption permits their withholding. The court, however, then held that the request for a search of the database for a particular subset of information that is not otherwise already specifically cataloged by the public body in specific data fields, including general keyword searches, results in the production of a new record that is not required by the FOIA, stating: “A request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record.” 

     It is noteworthy, however, that Appellate Court acknowledged in its opinion that the distinction between a “search” of a database and the production of existing “public records” within a database is a “muddled” gray area. The Court recognizes that the use of databases creates a “tension” between the “well-settled prohibition” on requiring public bodies to create new records and the requirement to make electronic databases available under FOIA. We expect that this area of law will continue to evolve and that until a bright-line rule is established, public bodies are safest leaning towards disclosure instead of withholding.

     As both public bodies and the general public become more technologically sophisticated, the frequency of FOIA requests that involve database records will continue to increase. While an analysis of the specific wording of a FOIA request is necessary in every case to determine whether FOIA will require disclosure of the records sought, we provide the following general takeaways from the Appellate Court’s guidance in Hites and Martinez:

  1. FOIA requests must “reasonably describe” a specific public record sought to be disclosed. Requests for all records “showing that…” or requests for information (e.g., “the number of …”) and other similar fishing expedition-type requests should be particularly scrutinized. A request for the results of a search or for general data, information and statistics does not seek a “public record” and thus is not subject to FOIA.

  2. The production of data from existing database fields is the equivalent of copying individual paper records from a cumulative file. Thus, data from electronic databases generally are subject to disclosure under FOIA.  However, the request must seek  data in a form that already exists pursuant to the business of the public body. The data sought must already be organized in a “field” or other defined data-set, or the search must be one ordinarily performed by the public body. A request to “search” a database or a request seeking all database records containing certain keywords that are not already cataloged is not required by the FOIA.

  3. A District email server is a database. A requester can legitimately seek all emails between John Doe and Jane Roe from a certain timeframe, or already cataloged in a specific folder, or concerning a particular matter identified in the “subject” field. These kinds of requests seek records in a catalog format that is already maintained by the District’s email system (e.g., date, subject matter and username fields). A request for a search of emails containing certain “keywords” in the body, on the other hand, calls for an impermissible search and not a particular public record.

  4. In some cases, the search of a database for a result or answer may be less burdensome (often much less burdensome) than producing actual public records that are sought. It acceptable to the requester, public bodies possess the discretion to offer that option, though it is not required by FOIA.

  5. Databases and their subsets of data in narrowed fields may be public records subject to the FOIA, but the data may nonetheless be exempt pursuant to specified exemptions in the FOIA.



July 6, 2015

By: Alan M. Mullins

         Previously we told you that your District named as an additional insured on a certificate of insurance can be a legal illusion if the underlying policy provides that coverage is secondary to other applicable policies. A recent Court Decision reminds us why being named as an additional insured on a certificate of insurance may not seem what it implies.

         In this contract dispute, a construction contractor held a contract to renovating a condo and entered into a subcontract for plumbing work. The plumber caused damage to other condos. The contractor was sued and its insurance company defended it. The contractor’s insurance company then sought reimbursement from the plumber’s insurance company, since it was subrogated to the contractor’s rights.

         The plumber’s certificate of insurance named the contractor as an additional insured and said the plumber’s policy was the primary policy. However, the certificate also stated that the contractor was an additional insured “as required by written contract.” Therefore, the contractor only had to show that the subcontract required the plumber to name the contractor as an additional insured on its Commercial General Liability ("CGL") policy.

         The contractor did not meet this requirement, however, because it was sloppy with the subcontract. The subcontract required the plumber to name the contractor as an additional insured only on the certificate of insurance, not the insurance policy itself. Beyond the fact that certificates of insurance are generally not legally enforceable, the certificate actually provided that it was issued for information purposes only, did not confer any rights upon the certificate holder and did not amend or alter the policy.

         We remind you to be wary of certificates of insurance. If you want your District to be fully protected, your contracts must insist that contractors provide proof of a policy amendment, endorsement, rider, etc. that names the District as a primary additional insured. Do not hesitate to contact us to help you navigate this tricky contractual maze.

Illinois Adopts New Requirement for Student Religious Exemptions from Vaccinations

August 24, 2015

By Parker R. Himes and James A. Petrungaro

            On August 3, 2015, Governor Rauner signed into law Public Act 99-0249, which adds a requirement that parents or guardians of students claiming a religious exemption from vaccinations must complete and submit a Certificate of Religious Exemption before the exemption will be honored.  The Illinois Department of Public Health will make available the necessary certificate.

            Prior to adoption of the new legislation, parents or guardians of students claiming a religious exemption from vaccination were merely required to submit a signed statement of objection to the district.  Illinois now requires a standardized Certificate of Religious Exemption to claim a religious exemption from vaccinations.

            Notably, the title of the new form is a bit misleading.  The Certificate does not require, for example, a priest, rabbi or other religious leader to confirm the family’s religious beliefs.  Rather, the Certificate requires that the student’s health care provider explain in detail to the parents or guardians the risk to the student and to the population as a whole that would arise from abstaining from vaccinations.  After informing the parents or guardians of the risks, the health care provider must sign the Certificate confirming that risk information was provided to the parents or guardians.  The health care provider does not authorize the legitimacy of the family’s religious exemption.  In addition, the Certificate reflects the parents’ or guardians’ understanding that their child may be excluded from school in the case of a vaccine-preventable disease outbreak or exposure. 

            Parents or guardians must submit the Certificate to their child’s district prior to the child entering kindergarten, sixth grade, and ninth grade.  The Department of Public Health states that this new requirement will be in place for religious exemption requests beginning October 16, 2015.  The Illinois State Board of Education and the Department of Public Health will soon make the Certificate available on their websites.

            Should you find yourself confronted with an issue concerning student vaccinations, please contact an attorney at the Firm so we may guide you through the new process.



April 9, 2015

By:  Alan M. Mullins & James Petrungaro

Section 10-22.44 of the School Code provides in part that boards of education may transfer interest earned on district money to the fund most in need of the interest income as determined by the board of education.  This transfer authorization does not apply to any interest that has been earmarked or restricted by the board of education, or earned on Illinois Municipal Retirement Fund money, Tort Immunity money, Fire Prevention, Safety, Energy Conservation and School Security Purposes money or Capital Improvements money.

The Illinois State Board of Education rules provide that unless otherwise specified by board of education resolution adopted by June 30 of each year, the interest becomes part of the principal of the respective fund and can no longer be transferred as interest. For example, if the district’s Transportation Fund earned $10,000 in interest during the past fiscal year, the board may pass a resolution by June 30, 2015 to transfer that interest to the Education Fund, if determined to be the fund most in need. In the alternative, the board may pass a resolution specifying that the interest   is   to   remain   interest   and   not   become   part   of   the   Transportation   Fund’s principal. Otherwise, that interest becomes part of the principal of the Transportation Fund after June 30 and is subject to the requirements regarding the transfer of principal from the Transportation Fund and not the less restrictive requirements regarding the transfer of interest.

If your school board wants to transfer, or designate as interest, eligible interest income earned during the past fiscal year, it must do so by June 30. Otherwise, the interest becomes part of the fund principal. Any transfers or interest designations must be accomplished through a resolution.  Please contact Alan Mullins if you have any questions regarding interest transfers or interest designations or if you need assistance preparing a resolution.


November 18, 2014

By Alan M. Mullins

School districts routinely require contractors to provide both performance bonds and payment bonds for school construction projects.   But are both necessary?   Can school districts be liable to subcontractors if they only obtain a performance bond?  The Illinois Supreme Court recently ruled that school districts would not be liable if they only received a performance bond and you may be surprised why.

In Lake County Grading Company, LLC v. Village of Antioch, a village obtained performance bonds from a contractor but did not obtain a separate payment bond.  The contractor went bankrupt and the sub-contractor sued the village for not obtaining a payment bond from the contractor. The village argued that it was not liable because the performance bond would have covered the subcontractor’s claim had it been filed within the required 180 days.  The Illinois Supreme Court agreed with the village.

The Bond Act provides that when contracts are for $50,000 or more, local governmental entities such as school districts must require contractors to furnish “a bond” and “the bond” shall cover the completion of the contract and payment for materials and subcontractors.   The Bond Act further provides that all such bonds shall guarantee: 1) the performance of the contract, and 2) that all people or entities that have contracts with the contractor or subcontractors will be paid, whether or not provisions to that effect are included in the bonds. Last, anybody who has a claim under a bond must file it within 180 days of the date the last item of work was completed or last item of material was finished.


It has been the general belief that contractors must provide two bonds, a performance bond and a payment bond. That view no longer prevails.  The Illinois Supreme Court ruled that the language described above requires only one bond from contractors and that bond will cover the completion of the contract and payment of material men and subcontractors even if it does not specifically say so.   In the case before the Supreme Court, the subcontractor did not have a claim against the village because filing a claim against the bond was its only remedy.  However, it could not file a claim against the bond because the 180 days for doing so had expired.


There are two practical effects to the decision.  Other than a bid bond, school districts can be safe in requiring only a performance bond when contracting for a construction project.  With this legal development, it may be appropriate for public bodies to reconsider the bond requirements typically included in their bid solicitations since it could mean lower construction costs.  We are prepared to assist you with your next RFP and contract drafting.  Furthermore, material men and subcontractors have to realize that if a contractor provides only one bond and that bond does not contain specific payment provisions they still have to file claims on that bond within 180 days.

FAQ – Firearm Concealed Carry Act

 November 5, 2014

By: Adam Dauksas

 Last Fall, Scariano, Himes and Petrarca, Chtd., alerted its clients as to the requirements of the Firearm Concealed Carry Act, which generally permits Illinois citizens to now carry concealed firearms in public.  As the law has begun to take effect, however, there have been some common questions that the Firm has received:

  •  Can a person drive onto a school’s parking lot with a concealed firearm and store it in their vehicle?

Yes. While the law makes it illegal for a licensed individual to carry a concealed firearm on or into the property of a public school, there is a limited exception regarding parking lots. A person may drive onto the parking lot of a public school with a concealed firearm in their vehicle and store it in a “case” out of plain view, inside of the locked vehicle. The law defines a “case” as a glove compartment or console that completely encloses the firearm, the trunk of the car, or a firearm carrying box, shipping box, or other container. In addition, the law provides that a person may carry a concealed firearm “in the immediate area” surrounding their vehicle within a school’s parking lot but only for the limited purpose of storing or retrieving it from the vehicle’s trunk; provided, however, the concealed firearm must be unloaded prior to exiting the vehicle.

  • Where do the signs that a school is required to post need to be located?

Signs stating that the carrying of firearms is prohibited must be clearly and conspicuously posted at the public entrances to school buildings, administrative offices, athletic fields, and parking lots (notwithstanding the exception noted above). The signs, a printout of which can be found here, must also be at least 4 inches by 6 inches in size.

  • Has the Illinois State Police Department issued any additional guidance about the “clear and present danger” reporting requirement?

Yes. The State Police have promulgated an administrative rule that addresses this issue, as well as made available a form and instructions for how school administrators are to report their determinations of students who constitute a “clear and present danger.” This form must be sent directly to the State Police within 24 hours of the determination being made. In addition, the administrative rule provides that reporting must be made consistent with the Family Educational Rights and Privacy Act (“FERPA”).

If your school district has any additional questions concerning the Firearm Concealed Carry Act or needs assistance in drafting its policy regarding “clear and present danger” reporting, contact Scariano, Himes and Petrarca, Chtd.




October 17, 2014

By James A. Petrungaro

A little-publicized piece of FOIA legislation that was rushed through both chambers of the General Assembly at the end of the last legislative session will soon be on its way to the Governor’s desk. If signed by Governor Quinn, House Bill 3796 would amend FOIA and create a new set of rules for responding to a “voluminous request.” Included in the relief would be additional time for the public body to respond and the ability to charge the requester fees for voluminous electronic records. The same legislation would also allow a public body to refer a requester to its website if the records requested, no matter their size, are publicly available on the website. A limited exception would apply where the requester can demonstrate an inability to access the Internet.

Scariano, Himes and Petrarca is tracking the legislation closely and, if signed by Governor Quinn, will provide a substantive review of the law’s new requirements.


 October 10, 2014

By James A. Petrungaro

We recently reported that the Illinois Attorney General’s Public Access Counselor (“PAC”) rejected a public body’s requirement that an individual wishing to participate in public comment at a board meeting must publicly state her home address when providing comment to the board. In a new decision involving a separate dispute over the lawfulness of a public body’s prerequisite to addressing the board during public comment, the PAC has again ruled in favor of public access.

At issue was whether a County Board’s policy requiring anyone wishing to participate in public comment to pre-register in writing at least five-business days prior to the meeting. The PAC ruled that the onerous pre-registration requirement violates the Open Meetings Act because it does not further the speaker’s statutory right to address the board, subject only to reasonable rules of the public body that are tailored to preserve order and decorum at the meeting.   The PAC particularly noted that under the County Board’s rule, a member of the public would be obligated to register before the County was obligated to even post its meeting agenda.

Many school districts and other public bodies require some form of public comment registration at their meetings. These often take the form of a single sign-in sheet or individual public comment cards. The PAC’s decision does not address such a registration rule and we envision these requirements to be reasonably related to the orderly operation of the public meeting. Should you have any questions concerning your board’s public comment policy and rules, we are ready to assist you.

Appellate Court Sides with Municipality in Dispute with School District Over Application of Municipal Zoning Rules

September 29, 2014

By Anthony Scariano III

Recently, in Gurba v. Community High School District No. 155, the Illinois Appellate Court held that school districts located within home-rule municipalities are subject to local zoning ordinances. You may even recall the highly-publicized events that gave rise to the litigation.

In response to a failed inspection of the Crystal Lake South High School football bleachers, the school district decided to construct new $1.8 million bleachers. But the school district did so without notifying the City of Crystal Lake or seeking an exception from the city’s zoning code. Neighboring homeowners were disturbed by the new bleachers’ stature and proximity to their homes and eventually sued the school district. The school district maintained that it was not subject to the city’s zoning ordinances. The trial court ruled in favor of the city, and the school district appealed.

The Appellate Court rejected the argument that ISBE’s Health/Life Safety Code shields school districts from municipal zoning burdens. The court noted that the Health/Life Safety Code makes no mention of zoning issues and thus could not preempt the city’s zoning code.

The court recognized that the Illinois Constitution gives the State, not municipalities, broad authority when it comes to regulating education. However, the court stated that provisions of the Illinois Constitution infer that “in the case of a conflict between a home-rule unit and a school district, there is a slight bias toward the home- rule unit.”

Finally, the court held that because the School Code allows school boards to seek zoning variances regardless of whether they are located within a home-rule unit, the law indicates an intent for school districts to comply with municipal zoning regulations.

While the court’s decision only pertains to school districts located within home-rule municipalities, it underscores the importance of consulting with your attorney before construction projects begin. The court’s deference to the School Code’s provision on zoning may mean that schools need to seek local zoning oversight regardless of the municipality’s home-rule status.


March 2, 2014

By James A. Petrungaro

 Today, the Illinois Supreme Court announced that the Illinois eavesdropping law (Article 14 of the Criminal Code) is unconstitutional because it criminalizes wholly innocent conduct and conversations never intended to be private, thus violating the due process protections of the U.S. Constitution.

Prior to its being declared unconstitutional, Illinois’ eavesdropping law was the only law in the country that required all parties to a conversation to consent to its recording. If even one person participating in a conversation failed to consent (expressly or impliedly) to the conversation being recorded, no matter the circumstances of the conversation, it would be a violation of the eavesdropping statute to record that conversation. Most other states require consent of only a single party to the conversation.

Considering two criminal cases where citizens were prosecuted for recording conversations without the consent of all parties (one case involved the recording of a phone conversation; the other involved the recording of a conversation with an attorney and a judge), the Supreme Court considered the over-reaching application of Illinois’ law and its criminalization of innocent conduct. For example, the Court noted that recording an open conversation in a public square or at a public sporting event – conversations that lack any reasonable expectation of privacy – would be criminal absent consent from each of the conversation participants.

With this ruling, the criminal aspect of the eavesdropping law in Illinois is no longer enforceable. Although the eavesdropping law includes a civil penalty as well, which the Court did not address in today’s decisions, it is likely that the lower courts will interpret the entire statute to be unconstitutional. While the Legislature may pass a more narrowly tailored law in the future that would prohibit the recording of truly private conversations, there is presently no general law against recording conversations.

With the eavesdropping law no longer enforceable, School Districts may face situations in which individuals either openly or surreptitiously record conversations with staff, administrators and/or board members. Scariano, Himes and Petrarca is analyzing the impact of the Court’s decision and is prepared to assist you as you encounter these situations.


December 9, 2013

By Parker Himes

Under the recently enacted Firearm Concealed Carry Act (PA 098-0063), licensed Illinois citizens will be permitted to carry concealed firearms.

While concealed carry is now generally permitted in Illinois, it will still be illegal to carry a concealed firearm on the property, including parking areas, athletic fields, etc., of pre-schools, child care facilities, and public and private elementary and secondary schools.  Property, including parking areas, athletic fields, etc., under the control of a public or private community college, other college, or university will also be off-limits.  Further, concealed carry will be prohibited in any building or portion of a building under the control of a unit of local government.  These locations are a few of the “prohibited areas” listed in the law.

Another important aspect of the law concerns a new reporting requirement for school administrators.  Under the Act, the principal of an elementary or secondary school, or the principal’s designee, and the chief administrative officer of a community college, other college, or university, or designee, must report to the Department of the State Police, within 24 hours, when a student has been deemed a “clear and present danger” to himself or others. The Act defines “clear and present danger” as a student who “demonstrates threatening physical or verbal behavior such as violent, suicidal, or assaultive threats, actions, or other behavior as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement agent.”

If you have questions about the impact of the Firearm Concealed Carry Act, we urge you to contact an attorney at the Firm so we may help with your specific concerns.

DuPage County Clerk Will No Longer Limit The Extension For The Transportation Fund

December 4, 2012

By: Alan Mullins

The DuPage County Clerk has historically had a practice of limiting the tax rate limit for school district transportation funds at 0.2%. When one of our DuPage County clients attempted to increase its transportation levy, the DuPage County Clerk replied that it would not extend the levy beyond the 0.2% limit.

Scariano, Himes and Petrarca challenged the Clerk and cited the Property Tax Extension Limitation Law section and School Code sections that must be considered when determining whether the transportation fund has a tax rate limit. We took the position that the transportation fund tax rate is to be unlimited.

Recently, the DuPage County Clerk changed its practice and agreed that the transportation fund levy is to be unlimited.  As a result, the County Clerk will now extend the levy beyond 0.2% for the transportation fund. If your District needs assistance with issuing its tax levies, do not hesitate to contact us for assistance.


June 12, 2012

By: Adam Dauksas

Public Act 97-951, which took effect in August, amended the portion of the School Code relating to contracts in excess of $25,000 to provide that contracts for the transportation of all students – not just those with special needs or disabilities – are now exempt from the lowest responsible bidder requirement.

Transportation contracts must still be advertised in the same manner as other competitive bids, but are now to be awarded by first considering the bidder or bidders most able to provide safety and comfort for the students, the stability of their service, and any other factors set forth in the district’s RFP regarding quality of service, then price.

In addition, language was also added to the law which provides that no cause of action will lie against a school board for awarding a transportation contract in accordance with these changes unless “the cause of action is based on fraudulent conduct.”

Prior to these recent changes in the law, only transportation contracts for students with special needs or disabilities were exempt from the lowest responsible bidder requirement, and no limitation on a school board’s liability pertaining to transportation contracts was provided.  Thus, Public Act 97-951 represents a significant development in the law affecting school districts throughout Illinois.  Should your district have any questions about these changes or need assistance in developing a transportation bid package, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.


 May 18, 2012

By: Alan M. Mullins

Section 10-22.44 of the School Code provides in part that boards of education may transfer interest earned on district money to the fund most in need of the interest income as determined by the boards of education.  This transfer authorization does not apply to any interest that has been earmarked or restricted by the board of education, or earned on Illinois Municipal Retirement Fund money, Tort Immunity money, or Fire Prevention, Safety, Energy Conservation and School Security Purposes money.

The Illinois State Board of Education implementing rules provide that unless the board of education adopts a resolution transferring interest by June 30 of each year, the interest becomes part of the principal of the respective fund and can no longer be treated as interest.  For example, if the district’s Transportation Fund earned $10,000 in interest during the past fiscal year, the board may pass a resolution by June 30, 2012 to transfer that interest to the Education Fund, the fund determined to be the most in need.   Otherwise, that interest becomes part of the principal of the Transportation Fund and after June 30 is subject to the requirements regarding the transfer of principal from the Transportation Fund and not the requirements regarding the transfer of interest.

If your school board wants to transfer eligible interest income earned during the past fiscal year, it must do so by June 30.  Otherwise, the district loses the authority to transfer any interest.  Any transfers must be accomplished through a resolution. Please contact Alan Mullins in our Chicago office if you have any questions regarding interest transfers or if you need assistance preparing a resolution.




November 12, 2010

By: Justino D. Petrarca and Jessica M. Bargnes

The ethical conduct of elected officials and governmental employees including school board members and district employees has come under increased scrutiny over the years.  As the date of the Illinois Association of School Board’s 2010 Joint Annual Conference approaches, Scariano, Himes and Petrarca, Chtd. would like to remind you about the prohibitions contained in the Illinois Gift Ban Act. The Act generally prohibits a board member or district employee from soliciting or accepting any “gift” - including food and drink - from any “prohibited source” as defined in the Act, or in violation of any State or federal law. 

1.          MANDATE

The Gift Ban Act generally prohibits public officials and/or employees from soliciting or accepting any gift from a "prohibited source."   The mandate covers Board members, employees (full and part time), and Board member or employee spouses and immediate family members residing with the Board member or employee.  This prohibition is very broad and applies unless the "gift" fits one of the exceptions noted in number 3 below.


A "prohibited source" is any person or entity which:

a.         Seeks official action from the Board, its members or employees;

b.         Does business or seeks to do business with the board, its members or employees;

c.         Conducts activities regulated by the Board, its members or employees;

d.          Has interests that may be substantially affected by the performance of duties of the Board, its members or employees; or

e.         Has registered or is required to be registered with the Secretary of State as a "lobbyist."


There are several exceptions to the Gift Ban Act.   Below we highlight only those most relevant to the upcoming IASB conference in Chicago.

The restrictions of the Act do not apply to:

a.         Opportunities, benefits and services available on the same conditions as for the general public (i.e. theater tickets).

b.         Anything for which the Board, its members or employees pay market value.

c.         Educational materials and "missions" having a close connection to the recipient's office or employment; that predominantly benefit the public, not the recipient; and that are approved by the recipient entity's local ethics officer in advance of the "mission" or receipt of materials.    If advance approval is not practicable, then approval must occur as soon thereafter as practicable, with a detailed explanation as to why advanced approval was not possible.    At the IASB conference, be conscious of those gifts distributed in the vendor exhibition hall.

d.          Travel   expenses   having   a   close   connection   to   the   recipient's    office   or employment,   and which predominantly   benefit the public, not the recipient. These travel expenses must be in a manner and style characteristic with the conduct of State business and are subject to the same prior approval requirements noted above.  Beware of limousines!

e.               Food and refreshments not exceeding $75 per person per calendar day.   In order to qualify for this exception the food must be either catered or consumed on the premises from which the food was purchased or prepared.

f.           Any item(s) from any one prohibited source during any calendar day having a cumulative total value of less than $100.   With this exception, a school board member or district employee most likely may accept the souvenirs offered at the IASB Joint Annual Conference vendor exhibition hall!

With regard to the IASB Joint Annual Conference,  we caution that the greatest scrutiny will be focused on the cost and location of hotel rooms, the occupants of those rooms (relatives,  friends,  etc.),  transportation expenses to,  from,  and during the conference, meals,   liquor purchases,  tours,  tickets to   events (plays, concerts, etc.), and other items/services of value that may not easily fit any of the noted exceptions.

If you have specific questions about the application of the Illinois Gift Ban Act, please do not hesitate to call Scariano, Himes and Petrarca.  We look forward to seeing you at the Illinois Association of School Board’s Joint Annual Conference!

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


 October 5, 2010

Many of our clients have recently received an extensive FOIA request from “Scott O’Connell” seeking disclosure of legal opinions issued to the school district by ISBE. We have prepared a model response to this request. If you have received this request and desire assistance in forming a response, please contact attorney James Petrungaro at 312-565-3100 ext. 257 or at

Recent Amendments to the School Code Provide School Districts Flexibility in Transferring Money Between Funds

September 7, 2010

By: Alan M. Mullins

The Governor recently signed two bills into law that provide school districts with more flexibility in transferring money between funds.  In the past, the School Code did not specifically provide that school districts could abate (partially abolish) their working cash funds and permanently transfer money to other funds, but school districts often did so.  In 2009, the Illinois Appellate Court ruled that school districts could abate their working cash funds, but could only permanently transfer the money to their education funds.  That ruling left many school districts open to tax rate objections for permanently transferring working cash fund money to funds other than their education funds.

In order to provide school districts more flexibility in transferring money between funds, the first bill, now Public Act 96-1277, amends the School Code to add Section 20-10.  That section specifically provides that school districts can abate their working cash funds and permanently transfer the money to any fund that is most in need of the money.  School districts can make such transfers if following the abatement, the working cash fund balance (including taxes levied for working cash fund purposes and not yet collected and amounts temporarily transferred from the fund and not yet reimbursed) equals at least .05% of the then current equalized assessed value of the taxable property in the district.

Further, in response to the pending tax rate objections that could have potentially cost school districts millions of dollars, the new legislation (Public Act 96-1277) also authorizes any working cash fund abatement made prior to July 26, 2010, provided the transfer satisfies the criteria set forth in Section 20-10 of the School Code discussed above.

The second piece of legislation (Public Act 96-1201), amends Section 17-2A of the School Code to extend the time period for school districts to make interfund transfers, subject to certain requirements, between the education, operations and maintenance and transportation funds from June 30, 2010 to June 30, 2013.

Challenging Property Assessments To Increase School Funds

April 19, 2010

By Alan M. Mullins

All taxing bodies have the right to appeal the assessed values assigned to properties within their boundaries, whether by initiating appeals or by intervening in the property owners’ appeals.  The Illinois Appellate Court recently held that a school district’s right to appeal a perceived under-valuation of a property is no less important than the property owner’s right to appeal a perceived over-valuation.

In Minooka Community High School District No. 111 v. Illinois Property Tax Appeal Board, the City of Aux Sable owned a natural gas extraction facility.  It appealed the 2004 assessed value of its property to the Property Tax Appeal Board (“PTAB”).  Once Aux Sable filed its appeal, the local school districts were precluded from initiating their own appeal of Aux Sable’s assessed value because PTAB will accept only one appeal for any property for a particular tax year.  PTAB requires other parties who wish to file related appeals to intervene in the pending appeal, which the local school districts did.

After the school districts filed their joint intervention, Aux Sable decided that it would rather accept the assessed value given its property than face the school districts’ appraisal evidence at a hearing, and thus filed a motion to voluntarily dismiss its appeal.   The school districts objected because they wanted their under-valuation claim heard. PTAB granted the motion to dismiss and the school districts appealed that decision to the Appellate Court.  In a victory for intervening school districts, the Appellate Court held that PTAB lacked the authority to dismiss an appeal over the school districts’ objections.  In essence, the Court held that even though the property owner abandoned its over- valuation claim, the school districts could continue to pursue their under-valuation claim.

In times of teacher layoffs and slim budgets, school boards cannot afford to ignore the undervaluation of properties within their districts. Yet we observe that by and large, our clients are under utilizing the property tax appeals process, thereby potentially leaving money on the table. If you are interested in challenging the undervaluation of properties within your District, either through intervention in an appeal or filing your own challenge, please contact Alan M. Mullins at 312-565-3100, ext. 236 or