UPDATE November 18, 9:23AM CST:
Late Friday, Governor JB Pritzker signed SB 690 as amended into law.
It is effective immediately under Public Act 103-0565.
Now, there are officially two new laws amending the Community Mental Health Act signed in 2023.
P.A. 103-0565 has no direct immediate impact to McHenry County and the McHenry County Mental Health Board. One of the provisions extended the sunset of the mental health board referendum validation without PTELL passed in 2022 from May 13, 2022 to Nov 17, 2023.
P.A. 103-0274 is not effective until January 1.
UPDATE November 11, 7:47PM CST:
As expected, SB 690, passed during the fall veto session as published in the original article, including the twist concerning referendums during 2024.
The bill passed the state Senate on a party line vote on October 25.
At the end of the off week between the two weeks of veto session, a House amendment was filed by state Representative Dan Didech (D, Buffalo Grove) targeting county mental health boards using sales taxes.
Given the county population cap and the only county mental health board currently using a sales tax for mental health is Winnebago County. Given the municipal population minimum is 125,000, that means the city of Rockford will be able to appoint 2 additional members to the Winnebago County Mental Health Board, and not the Winnebago County Board.
From the desk of John Lopez: My witness slip was submitted for the House Revenue & Finance Committee last Tuesday prior to the committee hearing, including this assessment from me:
“I am very opposed to House Amendment 1, filed on November 3 by Representative Dan Didech.
“While I respect Representative Didech’s work on mental health legislation, House Amendment 1 troubles me. Its language clearly singles out Winnebago County, given the amendment targets county 708 mental health boards where voters have approved a sales tax referendum under the Special County Retailers’ Occupation Tax for Mental Health statute.
“In my honest opinion, the surgical precision of carving out Winnebago County’s mental health board raises serious Equal Protection Clause constitutional questions. What differentiates residents covered by a county mental health board funded with a sales tax from a counterpart funded by the property tax?
“Why cap county population at 500K shutting out Will County given its population of just under 700K? For the integrity of how county mental health boards are governed by the state under the Equal Protection Clause of the Constitution, I formally ask the Committee to remove House Amendment 1 from SB 690.”
I knew my written statement would fall on deaf ears, as the legislation as amended passed out of the House committee by party line vote, passed the House on a party line vote, and concurrence of the Senate passed on a party line vote last Wednesday.
The McHenry County Board is considering placing a sales tax referendum on the ballot in 2024, with first discussion taking place at the County Public Health Committee earlier this month.
The new law, once signed by Governor JB Pritzker, would not apply to McHenry County should a sales tax referendum pass to replace the property tax to fund the McHenry County Mental Health Board. While McHenry County’s population is under 500K, no municipality comes close to the 125K.
Will County is also considering a possible sales tax referendum in 2024, but if Will County voters passes the referendum, their population is well over 500K, so the new law, as passed, will not apply.
Since I found this amendment’s filing, I could not find a reason why the amendment was put forward, but it’ll be law immediately once it’s signed by the governor.
======= END OF UPDATES =======
What started by the 2021 action of the Kane County clerk defending the property tax cap against neighboring Dundee Township, latest veto session bill does something more
Exclusive to McHenry County Blog by John Lopez
The first week of the fall veto session of the Illinois General Assembly was fairly quiet but that does not mean there wasn’t any action with legislation. The fall veto session concluded its first of two weeks in Springfield on Thursday (the House finished its work on Wednesday) and the General Assembly is scheduled to return to Springfield on November 7 for the final 3 days of the veto session.
One of the bills which saw movement has to do with mental health boards in general, and in particular, the validation of 708 mental health boards who passed referendums in fall the fall of 2022, but did not include the language of the property tax cap, formally known as the Property Tax Extension Limitation Law (PTELL) on the ballot for voters to know the full impact of any referendum question.
The core issue stems from the enforcement of PTELL by Kane County Clerk John A. “Jack” Cunningham (R, Aurora), in his role as the county property tax extension officer, both in a Hampshire Township Road District referendum in 2015 and the litigation which upheld Cunningham’s decision at both the Circuit Court and Appellate Court, and the mental health board referendums passed by voters in Dundee and Elgin townships in the spring of 2020.
Thursday afternoon, the Smoke Filled Room podcast hosted by Collin Corbett, founder and owner of Cor Strategies, was recorded on location in the village of Schaumburg. In order to break down the events in the first week of veto session in Springfield, former state Representative Ed Sullivan (R, Libertyville), who served seven terms ending in 2016, was the guest.
This cued video from the Smoke Filled Room podcast published on October 27 is the segment on mental health board legislation currently in Springfield and lasts for nearly 5 minutes.
There is a LOT to unpack here. To be very clear, the legislation, SB 690, does not directly impact McHenry County voters or the McHenry County Mental Health Board (MCMHB). As documented on McHenry County Blog in multiple articles, the issue between the McHenry County Board and the MCMHB was purely budgeting, which was resolved by the MCMHB at their October 24 meeting when MCMHB amended their FY 2024 budget to bring it in alignment with the recommended levy which will be voted on at the November 21 County Board meeting.
The issue discussed from veto session in the podcast is SB 690, which was amended under Senate Amendment 1 in a classic maneuver known as a “gut & replace” amendment (for those who are not familiar with how legislation for quick passage is done, the new legislation is being proposed in a “gut & replace” amendment to an existing bill that has already made some progress during this legislative session on a completely different subject matter. Given the quick turnaround in a 6-day Veto Session, this practice is common in Springfield (and a similar approach is done in Congress)). That is why this bill is starting in the state Senate as an “amendment”, which basically rewrites an existing, unrelated bill (SB 690) by deleting everything and replacing the bill with the language in the amendment.).
As stated on the podcast segment and above, the issue with mental health board referendums has to do with referendums being approved without the inclusion of PTELL language as required under the PTELL statute.
What does PTELL language look like? Last fall, Vernon Township in Lake County, was one of 7 Chicagoland units of government that passed a 708 mental health board referendum. But of the 7, Vernon Township was the only referendum with PTELL language included:
But Vernon Township was the exception, and the other government units where mental health referendums passed were much like the Schaumburg Township referendum last fall.
Like Schaumburg Township, Will County, along with the DuPage County townships of Lisle, Naperville and Addison, plus Wheeling Township in Cook County, used similar, if not the same, language on the ballot which did not have PTELL language, like Vernon Township used.
But the referendums passed.
So as Sullivan described SB 690 on the podcast, the date for the validation of mental health referendums was extended from the 102nd session of the General Assembly, to the 103rd.
What does that fully mean?
Public Act 102-0839 effective May 13, 2022
In the last session of the General Assembly, in the aftermath of the Dundee Township litigation affirming PTELL language is required for mental health referendums under the laws at the time of the ruling on November 22, 2021, the day after the ruling, state Representative Jay Hoffman (D, Swansea) filed legislation to validate all mental health boards created by referendum going back to January 1, 1994, the enactment date of PTELL.
Because there was confusion over the Community Mental Health Act (CMHA) and its ballot language question for placing referendum questions on the ballot and not referencing PTELL, the CMHA needed to be cleaned up to remove the confusion. Given multiple attorneys had given the wrong legal advice to advocates promoting the passage of referendums for taxpayer monies to be spent for local residents on mental health, substance abuse and individual developmental disabilities challenges, the issues which took place in Dundee and Elgin townships in Kane County in 2021 would not be repeated.
In particular, in DuPage County, the passage of the Bloomingdale Township 708 mental health board in 2017 and Milton Township in 2021 did not use PTELL language, these 708 mental health boards were exposed to litigation since the DuPage County clerk did not proactively enforce PTELL as Kane County Clerk Cunningham had clearly done in multiple jurisdictions going back to 2015.
The full story and background on the issue, including the passage of the Senate version of PTELL validation in 2022 under SB 3215, can be found in my article from Illinois Family Action written in March of 2022 and can be viewed here.
SB 3215 was filed on January 14, 2022, by state Senator Scott Bennett (D, Champaign) as a companion bill and identical to HB 4228 previously filed in November of 2021. Both bills passed their respective houses without opposition, but while SB 3215 was still in Senate committee, Senator Bennett added a sunset provision to SB 3215 under Senate Committee Amendment 1 on February 9, 2022, sunsetting the validation of mental health referendums passed without PTELL language to the date Governor JB Pritzker signs the legislation into law.
SB 3215, as amended, passed the Senate unanimously on February 23, 2022, and all of McHenry County’s state senators at the time (then Senate Minority Leader Dan McConchie (R, Hawthorn Woods), Senator Don DeWitte (R, St. Charles) and Senator Craig Wilcox (R, McHenry)) voted in favor of the validation of mental health boards passed without PTELL language and ending on a date certain.
With both bills passed, and with the Senate version with a sunset clause, the Democratic leadership decided to send SB 3215 to the House. When the House voted to approve SB3215, the issue had become partisan, and a party line vote (76-38), with state Representatives Marty McLaughin (R, Barrington Hills) and Steve Reick (R, Woodstock) voting against it, and Representative Suzanne Ness (D, Crystal Lake) voting in favor among McHenry County’s House delegation.
Governor Pritzker signed SB 3215 into law on May 13, 2022, as Public Act (P.A.) 102-0839, with May 13, 2022, being the sunset date for mental health board validation without PTELL language. Going forward, beginning in the November 2022 election, future 708 mental health board referendums MUST have PTELL language included.
With the new law, the Township Boards of Dundee and Elgin townships were allowed to levy property taxes on the respective 2020 referendums, and Kane County Clerk Jack Cunninghman had statutory authority to extend the property taxes in spite of the referendums’ passages not using PTELL language.
Voters had overwhelmingly approved both referendums in Dundee (over 62% approval) and Elgin (nearly 70% in favor) townships, so the new validation law was simply seen as protecting the will of the voters in spite of the lack of PTELL language.
So why did so many November 2022 mental health board referendums did not use PTELL language in spite of the new law’s sunset provision?
For a variety of reasons, including questionable legal advice and lack of due diligence, all but one referendum did not include PTELL language. Some excuses given, particularly in Wheeling Township, was voter-initiated referendums were already gathering petition signatures during the time SB 3215 was being passed in the legislature in 2022, and organizers, either through their own research as an “internet lawyer” or simply not willing to hire an attorney to thoroughly research the law, including case law, referendums were placed on the ballot without PTELL language.
The passage of the 7 referendums last fall, six without PTELL language, shows some of the voters did not give overwhelmingly approval as was seen in Dundee and Elgin townships in Kane County in March of 2020:
Granted, a general election and its increased turnout has more voter participation, but looking at the returns from Addison Township, passage was extremely close, by 134 votes.
Had PTELL language been included in Addison or Wheeling townships or in Will County, could the respective referendums gone the other way?
The Illinois General Assembly believes all six referendums without PTELL language worthy of validating, including the very close margin in Addison Township.
Therefore, as Sullivan stated on the podcast, the May 13, 2022, date is being extended to the date Governor Pritzker signs SB 690 into law, given passage in the House in veto session has been assured.
So what is the twist on the validation bill included with SB 690?
In addition to the date extension, SB 690 contains the following language:
This language is the direct response to the Wheeling Township Board of Trustees, who at their September 26 meeting, voted to place the mental health board referendum back on the ballot in the March 19, 2024, primary, with PTELL language included.
The language is clear to undo any “do-over” referendums in the townships and Will County who did not include PTELL language on the ballot, but will be validated by the passage and signing of SB 690 this year.
As stated earlier, SB 690 passed the state Senate on Wednesday, October 25, by a party line vote, this time, all 4 state senators representing portions of McHenry County voted No.
In an interivew with The Center Square, Senator Wilcox offered his views on SB 690:
“This seems to be a way of arguably, almost taxation without honest representation.
“This is not uncommon with the majority party in control. My fear is that we often do things through the legislature that arguably should have been put to the voters to make decisions in their local areas.
“The core of it was the failure to agree on how to properly do the referendum with the appropriate wording that would have highlighted to the constituents that this was not just an agreement on an established mental health board, but that it came with a price tag.
“That’s what we were opposed to in that bill.”Senator Craig Wilcox (R, McHenry), The Center Square, October 26, 2023
Senator Wilcox, as pointed out earlier, voted in favor of the first validation bill in February of 2022. While not stating it in his response to the The Center Square, Wilcox is frustrated why this legislation had to come through Springfield again, after the validation was sunsetted in the original law under P.A. 102-0839 to May 13, 2022.
In August, when the issue of the lack of PTELL language first became publicly known, state Representative Dan Didech (D, Buffalo Grove) gave the following evaluation of what happened in a Daily Herald article dated September 30:
“We need to make sure that the statute is a little more easy to understand and easy to implement.
“I think it’s now clear that what we did (in 2022) was insufficient and we’re going to have to put more hand-holding directions into the statute.”State Representative Dan Didech, September 30, 2023
From the desk of John Lopez: In my honest opinion, what the General Assembly passed in 2022 did the job, and inserted within the statute, the CMHA, clear enough language that referendum questions must include PTELL language, and the sunset clause passed in 2022 was a one-time law given there was confusion in the CMHA up until P.A. 102-0839.
The mental health referendums in Naperville, Lisle & Schaumburg townships passed by significant majorities of 59% or 56%, the margin of victory means it was less likely PTELL language would have overturned the result.
But Will County, Wheeling Township and especially Addison Township, the latter where a 134 vote victory might have very well been overturned with PTELL language on the ballot, cannot be ignored in this day and age where “defending democracy” was a message voters responded to in 2022.
Indeed, at least one of the approved mental health boards is not waiting for the legislation of SB 690 for validation. As reported earlier this month, the Will County Board, armed with a legal opinion from their State’s Attorney’s office saying in spite of legal precedents from Kane County, the PTELL does not apply, approved their first 708 mental health board levy of $10 million for their county’s mental health board.
The other townships have until the end of the year to approve their initial 2023 levy, and when Governor Pritzker signs SB 690 into law, they’ll have more than enough legal authority to ensure their respective county clerks extend the property tax levy for mental health as dictated to the voters.
But all must draw the proverbial line in the sand, and there will be no validations of mental health boards without PTELL language on the ballot going forward in 2024 and beyond.
In an October 3 editorial, the Daily Herald opined about the politicization of mental health boards in general and the Wheeling Township Board and their township attorney in particular. The politicization is a real and growing challenge on the topic of mental health and comes from all sides of the political spectrum, but that is an article(s) for another time.
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