Bill Text: IL HB5366 | 2021-2022 | 102nd General Assembly | Introduced

---

Bill Title: Amends the Illinois Municipal Code. For vacancies for abandonment and other causes in municipalities with a population under 500,000, removes language providing that the corporate authorities have the authority to determine whether a vacancy has occurred and, if the corporate authorities determine that a vacancy exists, the office is deemed vacant as of the date of that determination. Effective immediately.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2022-02-18 - Rule 19(a) / Re-referred to Rules Committee [HB5366 Detail]

Download: Illinois-2021-HB5366-Introduced.html

---

102ND GENERAL ASSEMBLY State of Illinois 2021 and 2022 HB5366 Introduced , by Rep. Brad Halbrook SYNOPSIS AS INTRODUCED:
65 ILCS 5/3.1-10-50
Amends the Illinois Municipal Code. For vacancies for abandonment and other causes in municipalities with a population under 500,000, removes language providing that the corporate authorities have the authority to determine whether a vacancy has occurred and, if the corporate authorities determine that a vacancy exists, the office is deemed vacant as of the date of that determination. Effective immediately.
LRB102 25429 AWJ 34715 b
A BILL FOR
HB5366 LRB102 25429 AWJ 34715 b
AN ACT concerning local government.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Municipal Code is amended by
changing Section 3.1-10-50 as follows:
(65 ILCS 5/3.1-10-50)
Sec. 3.1-10-50. Events upon which an elective office
becomes vacant in municipality with population under 500,000.
(a) Vacancy by resignation. A resignation is not effective
unless it is in writing, signed by the person holding the
elective office, and notarized.
(1) Unconditional resignation. An unconditional
resignation by a person holding the elective office may
specify a future date, not later than 60 days after the
date the resignation is received by the officer authorized
to fill the vacancy, at which time it becomes operative,
but the resignation may not be withdrawn after it is
received by the officer authorized to fill the vacancy.
The effective date of a resignation that does not specify
a future date at which it becomes operative is the date the
resignation is received by the officer authorized to fill
the vacancy. The effective date of a resignation that has
a specified future effective date is that specified future

HB5366 - 2 - LRB102 25429 AWJ 34715 b
date or the date the resignation is received by the
officer authorized to fill the vacancy, whichever date
occurs later.
(2) Conditional resignation. A resignation that does
not become effective unless a specified event occurs can
be withdrawn at any time prior to the occurrence of the
specified event, but if not withdrawn, the effective date
of the resignation is the date of the occurrence of the
specified event or the date the resignation is received by
the officer authorized to fill the vacancy, whichever date
occurs later.
(3) Vacancy upon the effective date. For the purpose
of determining the time period that would require an
election to fill the vacancy by resignation or the
commencement of the 60-day time period referred to in
subsection (e), the resignation of an elected officer is
deemed to have created a vacancy as of the effective date
of the resignation.
(4) Duty of the clerk. If a resignation is delivered
to the clerk of the municipality, the clerk shall forward
a certified copy of the written resignation to the
official who is authorized to fill the vacancy within 7
business days after receipt of the resignation.
(b) Vacancy by death or disability. A vacancy occurs in an
office by reason of the death of the incumbent. The date of the
death may be established by the date shown on the death

HB5366 - 3 - LRB102 25429 AWJ 34715 b
certificate. A vacancy occurs in an office by permanent
physical or mental disability rendering the person incapable
of performing the duties of the office. The corporate
authorities have the authority to make the determination
whether an officer is incapable of performing the duties of
the office because of a permanent physical or mental
disability. A finding of mental disability shall not be made
prior to the appointment by a court of a guardian ad litem for
the officer or until a duly licensed doctor certifies, in
writing, that the officer is mentally impaired to the extent
that the officer is unable to effectively perform the duties
of the office. If the corporate authorities find that an
officer is incapable of performing the duties of the office
due to permanent physical or mental disability, that person is
removed from the office and the vacancy of the office occurs on
the date of the determination.
(c) Vacancy by other causes.
(1) Abandonment and other causes. A vacancy occurs in
an office by reason of abandonment of office; removal from
office; or failure to qualify; or more than temporary
removal of residence from the municipality; or in the case
of an alderperson of a ward or councilman or trustee of a
district, more than temporary removal of residence from
the ward or district, as the case may be. The corporate
authorities have the authority to determine whether a
vacancy under this subsection has occurred. If the

HB5366 - 4 - LRB102 25429 AWJ 34715 b
corporate authorities determine that a vacancy exists, the
office is deemed vacant as of the date of that
determination for all purposes including the calculation
under subsections (e), (f), and (g).
(2) Guilty of a criminal offense. An admission of
guilt of a criminal offense that upon conviction would
disqualify the municipal officer from holding the office,
in the form of a written agreement with State or federal
prosecutors to plead guilty to a felony, bribery, perjury,
or other infamous crime under State or federal law,
constitutes a resignation from that office, effective on
the date the plea agreement is made. For purposes of this
Section, a conviction for an offense that disqualifies a
municipal officer from holding that office occurs on the
date of the return of a guilty verdict or, in the case of a
trial by the court, on the entry of a finding of guilt.
(3) Election declared void. A vacancy occurs on the
date of the decision of a competent tribunal declaring the
election of the officer void.
(4) Owing a debt to the municipality. A vacancy occurs
if a municipal official fails to pay a debt to a
municipality in which the official has been elected or
appointed to an elected position subject to the following:
(A) Before a vacancy may occur under this
paragraph (4), the municipal clerk shall deliver, by
personal service, a written notice to the municipal

HB5366 - 5 - LRB102 25429 AWJ 34715 b
official that (i) the municipal official is in arrears
of a debt to the municipality, (ii) that municipal
official must either pay or contest the debt within 30
days after receipt of the notice or the municipal
official will be disqualified and his or her office
vacated, and (iii) if the municipal official chooses
to contest the debt, the municipal official must
provide written notice to the municipal clerk of the
contesting of the debt. A copy of the notice, and the
notice to contest, shall also be mailed by the
municipal clerk to the appointed municipal attorney by
certified mail. If the municipal clerk is the
municipal official indebted to the municipality, the
mayor or president of the municipality shall assume
the duties of the municipal clerk required under this
paragraph (4).
(B) In the event that the municipal official
chooses to contest the debt, a hearing shall be held
within 30 days of the municipal clerk's receipt of the
written notice of contest from the municipal official.
An appointed municipal hearing officer shall preside
over the hearing, and shall hear testimony and accept
evidence relevant to the existence of the debt owed by
the municipal officer to the municipality.
(C) Upon the conclusion of the hearing, the
hearing officer shall make a determination on the

HB5366 - 6 - LRB102 25429 AWJ 34715 b
basis of the evidence presented as to whether or not
the municipal official is in arrears of a debt to the
municipality. The determination shall be in writing
and shall be designated as findings, decision, and
order. The findings, decision, and order shall
include: (i) the hearing officer's findings of fact;
(ii) a decision of whether or not the municipal
official is in arrears of a debt to the municipality
based upon the findings of fact; and (iii) an order
that either directs the municipal official to pay the
debt within 30 days or be disqualified and his or her
office vacated or dismisses the matter if a debt owed
to the municipality is not proved. A copy of the
hearing officer's written determination shall be
served upon the municipal official in open proceedings
before the hearing officer. If the municipal official
does not appear for receipt of the written
determination, the written determination shall be
deemed to have been served on the municipal official
on the date when a copy of the written determination is
personally served on the municipal official or on the
date when a copy of the written determination is
deposited in the United States mail, postage prepaid,
addressed to the municipal official at the address on
record with the municipality.
(D) A municipal official aggrieved by the

HB5366 - 7 - LRB102 25429 AWJ 34715 b
determination of a hearing officer may secure judicial
review of such determination in the circuit court of
the county in which the hearing was held. The
municipal official seeking judicial review must file a
petition with the clerk of the court and must serve a
copy of the petition upon the municipality by
registered or certified mail within 5 days after
service of the determination of the hearing officer.
The petition shall contain a brief statement of the
reasons why the determination of the hearing officer
should be reversed. The municipal official shall file
proof of service with the clerk of the court. No answer
to the petition need be filed, but the municipality
shall cause the record of proceedings before the
hearing officer to be filed with the clerk of the court
on or before the date of the hearing on the petition or
as ordered by the court. The court shall set the matter
for hearing to be held within 30 days after the filing
of the petition and shall make its decision promptly
after such hearing.
(E) If a municipal official chooses to pay the
debt, or is ordered to pay the debt after the hearing,
the municipal official must present proof of payment
to the municipal clerk that the debt was paid in full,
and, if applicable, within the required time period as
ordered by a hearing officer or circuit court judge.

HB5366 - 8 - LRB102 25429 AWJ 34715 b
(F) A municipal official will be disqualified and
his or her office vacated pursuant to this paragraph
(4) on the later of the following times if the
municipal official: (i) fails to pay or contest the
debt within 30 days of the municipal official's
receipt of the notice of the debt; (ii) fails to pay
the debt within 30 days after being served with a
written determination under subparagraph (C) ordering
the municipal official to pay the debt; or (iii) fails
to pay the debt within 30 days after being served with
a decision pursuant to subparagraph (D) upholding a
hearing officer's determination that the municipal
officer has failed to pay a debt owed to a
municipality.
(G) For purposes of this paragraph, a "debt" shall
mean an arrearage in a definitely ascertainable and
quantifiable amount after service of written notice
thereof, in the payment of any indebtedness due to the
municipality, which has been adjudicated before a
tribunal with jurisdiction over the matter. A
municipal official is considered in arrears of a debt
to a municipality if a debt is more than 30 days
overdue from the date the debt was due.
(d) Election of an acting mayor or acting president. The
election of an acting mayor or acting president pursuant to
subsection (f) or (g) does not create a vacancy in the original

HB5366 - 9 - LRB102 25429 AWJ 34715 b
office of the person on the city council or as a trustee, as
the case may be, unless the person resigns from the original
office following election as acting mayor or acting president.
If the person resigns from the original office following
election as acting mayor or acting president, then the
original office must be filled pursuant to the terms of this
Section and the acting mayor or acting president shall
exercise the powers of the mayor or president and shall vote
and have veto power in the manner provided by law for a mayor
or president. If the person does not resign from the original
office following election as acting mayor or acting president,
then the acting mayor or acting president shall exercise the
powers of the mayor or president but shall be entitled to vote
only in the manner provided for as the holder of the original
office and shall not have the power to veto. If the person does
not resign from the original office following election as
acting mayor or acting president, and if that person's
original term of office has not expired when a mayor or
president is elected and has qualified for office, the acting
mayor or acting-president shall return to the original office
for the remainder of the term thereof.
(e) Appointment to fill alderperson or trustee vacancy. An
appointment by the mayor or president or acting mayor or
acting president, as the case may be, of a qualified person as
described in Section 3.1-10-5 of this Code to fill a vacancy in
the office of alderperson or trustee must be made within 60

HB5366 - 10 - LRB102 25429 AWJ 34715 b
days after the vacancy occurs. Once the appointment of the
qualified person has been forwarded to the corporate
authorities, the corporate authorities shall act upon the
appointment within 30 days. If the appointment fails to
receive the advice and consent of the corporate authorities
within 30 days, the mayor or president or acting mayor or
acting president shall appoint and forward to the corporate
authorities a second qualified person as described in Section
3.1-10-5. Once the appointment of the second qualified person
has been forwarded to the corporate authorities, the corporate
authorities shall act upon the appointment within 30 days. If
the appointment of the second qualified person also fails to
receive the advice and consent of the corporate authorities,
then the mayor or president or acting mayor or acting
president, without the advice and consent of the corporate
authorities, may make a temporary appointment from those
persons who were appointed but whose appointments failed to
receive the advice and consent of the corporate authorities.
The person receiving the temporary appointment shall serve
until an appointment has received the advice and consent and
the appointee has qualified or until a person has been elected
and has qualified, whichever first occurs.
(f) Election to fill vacancies in municipal offices with
4-year terms. If a vacancy occurs in an elective municipal
office with a 4-year term and there remains an unexpired
portion of the term of at least 28 months, and the vacancy

HB5366 - 11 - LRB102 25429 AWJ 34715 b
occurs at least 130 days before the general municipal election
next scheduled under the general election law, then the
vacancy shall be filled for the remainder of the term at that
general municipal election. Whenever an election is held for
this purpose, the municipal clerk shall certify the office to
be filled and the candidates for the office to the proper
election authorities as provided in the general election law.
If a vacancy occurs with less than 28 months remaining in the
unexpired portion of the term or less than 130 days before the
general municipal election, then:
(1) Mayor or president. If the vacancy is in the
office of mayor or president, the vacancy must be filled
by the corporate authorities electing one of their members
as acting mayor or acting president. Except as set forth
in subsection (d), the acting mayor or acting president
shall perform the duties and possess all the rights and
powers of the mayor or president until a mayor or
president is elected at the next general municipal
election and has qualified. However, in villages with a
population of less than 5,000, if each of the trustees
either declines the election as acting president or is not
elected by a majority vote of the trustees presently
holding office, then the trustees may elect, as acting
president, any other village resident who is qualified to
hold municipal office, and the acting president shall
exercise the powers of the president and shall vote and

HB5366 - 12 - LRB102 25429 AWJ 34715 b
have veto power in the manner provided by law for a
president.
(2) Alderperson or trustee. If the vacancy is in the
office of alderperson or trustee, the vacancy must be
filled by the mayor or president or acting mayor or acting
president, as the case may be, in accordance with
subsection (e).
(3) Other elective office. If the vacancy is in any
elective municipal office other than mayor or president or
alderperson or trustee, the mayor or president or acting
mayor or acting president, as the case may be, must
appoint a qualified person to hold the office until the
office is filled by election, subject to the advice and
consent of the city council or the board of trustees, as
the case may be.
(g) Vacancies in municipal offices with 2-year terms. In
the case of an elective municipal office with a 2-year term, if
the vacancy occurs at least 130 days before the general
municipal election next scheduled under the general election
law, the vacancy shall be filled for the remainder of the term
at that general municipal election. If the vacancy occurs less
than 130 days before the general municipal election, then:
(1) Mayor or president. If the vacancy is in the
office of mayor or president, the vacancy must be filled
by the corporate authorities electing one of their members
as acting mayor or acting president. Except as set forth

HB5366 - 13 - LRB102 25429 AWJ 34715 b
in subsection (d), the acting mayor or acting president
shall perform the duties and possess all the rights and
powers of the mayor or president until a mayor or
president is elected at the next general municipal
election and has qualified. However, in villages with a
population of less than 5,000, if each of the trustees
either declines the election as acting president or is not
elected by a majority vote of the trustees presently
holding office, then the trustees may elect, as acting
president, any other village resident who is qualified to
hold municipal office, and the acting president shall
exercise the powers of the president and shall vote and
have veto power in the manner provided by law for a
president.
(2) Alderperson or trustee. If the vacancy is in the
office of alderperson or trustee, the vacancy must be
filled by the mayor or president or acting mayor or acting
president, as the case may be, in accordance with
subsection (e).
(3) Other elective office. If the vacancy is in any
elective municipal office other than mayor or president or
alderperson or trustee, the mayor or president or acting
mayor or acting president, as the case may be, must
appoint a qualified person to hold the office until the
office is filled by election, subject to the advice and
consent of the city council or the board of trustees, as

HB5366 - 14 - LRB102 25429 AWJ 34715 b
the case may be.
(h) In cases of vacancies arising by reason of an election
being declared void pursuant to paragraph (3) of subsection
(c), persons holding elective office prior thereto shall hold
office until their successors are elected and qualified or
appointed and confirmed by advice and consent, as the case may
be.
(i) This Section applies only to municipalities with
populations under 500,000.
(Source: P.A. 102-15, eff. 6-17-21.)
Section 99. Effective date. This Act takes effect upon
becoming law.