How Cook County Board members keep legal opinions secret

After hours of debate last week over Cook County's ordinance requiring paid sick leave, some commissioners were wondering why they were just then receiving months-old legal opinions from the state's attorney calling the plan unenforceable.

It turns out they have themselves to blame.

A board policy prevents the state's attorney's office - the board's lawyer - from sharing a legal opinion requested by a commissioner with the other elected members, unless the commissioner gives permission.

In fact, Assistant State's Attorney Donald Pechous said he can't even say whether a commissioner has asked for a legal opinion, unless he gets the OK.

So on the ordinance requiring businesses to pay for sick leave, the state's attorney's office generated four legal opinions at the behest of three different commissioners.

One came at the request of Sean Morrison, a Republican commissioner from Palos Park whose district represents part of the Northwest suburbs. When Morrison asked the state's attorney for the legal opinion in July, he also asked if others had sought opinions. They had, but that's not what Morrison was told by his own legal counsel. "We are not at liberty to say whether any person has requested advice from us as to the legality of (the ordinance)," Pechous wrote.

Legal experts are perplexed by the board's secrecy and questioned the use of resources to produce multiple legal opinions that differ slightly depending on how the question was asked.

"I believe it's unprecedented for a government to pass a policy that is actually against transparency among its own membership," said Keri-Lyn Krafthefer, a Chicago-based attorney who specializes in local government law. "Most of the boards we represent would want to act transparently."

Officials in DuPage and Lake counties said elected board members don't have the ability to keep colleagues in the dark about legal opinions.

Lake County Administrator Barry Burton said only he or Board Chairman Aaron Lawlor can request an opinion from the state's attorney. Board members who want a legal opinion have to go through one or both of them, he said.

In DuPage County, a majority of board members have to vote in favor of seeking a legal opinion.

"It would be complicated if one board member was allowed to solicit an opinion every time they felt it necessary," said DuPage County Board member Paul Fichtner, a Republican from Elmhurst. "We don't want to allow these opinions to be used as a potential political tool."

Liz Chaplin, a Democratic DuPage County Board member from Downers Grove, said she's never had a problem getting legal advice, but she questioned the fairness of requiring a majority vote from a board dominated by one political party.

"I think any board member should be able to ask for an opinion, but if someone does ask a question the answer should be shared with all board members," she said.

Cook County Commissioner Peter Silvestri, a Republican from Elmwood Park whose district includes parts of the Northwest suburbs, complained about the board's legal advice policy during the paid sick leave debate and said he would seek to change the rules so all commissioners were armed with as much information as possible before casting their votes.

"It's imperative when commissioners have information on something we're considering that we all have that same information," Silvestri said. "The more information we have, the better decisions we make."

It might be tough for Silvestri to change the policy since he's just one of four Republican commissioners on the 17-member board. And some of his GOP colleagues don't even agree with him.

"I think when we're investigating things, to be allowed some confidentiality in what we receive is a good thing," said Tim Schneider, a Republican commissioner from Bartlett. "I have a right to keep it private so the opposing side can't do all their homework on it to beat down my state's attorney opinion."

Also, the multiple legal opinions on the paid sick leave ordinance didn't provide much sway with commissioners. They basically voted along party lines even after learning the state's attorney had determined the county "lacks the home rule authority to enact" the law. The ordinance passed 11-4, with one voting present.

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Contact Jake at jgriffin@dailyherald.com or (847) 427-4602.