Appeal from the Circuit Court of Sangamon County; the Hon. J.
Waldo Ackerman, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Three separate actions in the circuit court of Sangamon County were consolidated. Each action challenged the validity of the Governor's Executive Order No. 4 of February 27, 1973, and the financial disclosure statement prepared by the Board of Ethics pursuant to that order. In one case the plaintiffs are individual State employees and the Illinois State Employees Association; in another, individual highway engineers and the Illinois Association of Highway Engineers; and in the third, individual members of the State Highway Police, and Trooper Lodge No. 41, Fraternal Order of Police. Each action purports to be brought in behalf of the named plaintiffs and all employees similarly situated. The defendants in each action are Governor Daniel Walker, Abner J. Mikva, Chairman of the Illinois Board of Ethics, and George M. Burditt, a member of the Illinois Board of Ethics. Since the individuals named as plaintiffs in each action have standing to maintain it, it is unnecessary to inquire into the standing of the plaintiff associations to represent their individual members in these actions.
The trial court heard evidence and entered a judgment sustaining the overall validity of the order and the financial disclosure statement prepared by the Board, but holding that certain portions of the statement were invalid. Both parties appealed, and the appeal was brought to this court pursuant to Rule 302(b).
Executive Order No. 4 created a Board of Ethics, whose members were to serve without compensation. The order provided that the Board should have jurisdiction "over each agency whose vouchers are subject to the approval of the Department of Finance," and it further provided:
"3. At the commencement of state service and thereafter between April 15 and April 30 of each succeeding year, each of the following persons in each agency subject to the jurisdiction of the Board shall file with the Board a sworn Statement of Economic Interest and a copy of his most recent federal and state income tax returns:
a. Each person appointed by the Governor;
b. Each person who receives $20,000 or more per year from the State; and
c. Each other person whose position is subject to undue influence (as determined from time to time by rule of the Board).
4. The Statement of Economic Interest shall contain:
a. A current net worth statement, disclosing all assets and liabilities of the person;
b. A statement of income (including capital gains) received by the person during the preceding calendar year, disclosing:
(1) each source of income,
(2) the total amount received from the source, and
(3) the nature of the income transactions involving the source.
To provide this information, pertinent portions of federal or state income tax returns shall be made part of the Statement of Economic Interest;
c. A statement of gifts received by the person during the preceding calendar year, disclosing all gifts from any source having business with or regulated by the agency of the person and all gifts of a value of $50 or more from sources other than members of the person's family;
d. A statement of close economic associations, indicating the person's position with each business or professional entity with which the person is associated as an officer, employee, director or partner or in which he has a substantial interest and identifying those entities which derive substantial income from the State or from professional engagements concerning the State.
5. The Statement of Economic Interest of each person other than one appointed from the public to serve on a Board or Commission shall be open to reasonable public inspection. The Board shall provide by rule for the time, place and manner of inspection.
6. Subject to rule of the Board, the Statement of Economic Interest shall disclose interests of the spouse and immediate family living with the person making the statement."
The order further provided that a false or misleading statement, or failure to file on time or to cooperate with the Board would be ground for disciplinary action, including discharge. The order directed the Board to review the documents filed with it, to make investigations and to report to the Governor upon finding an apparent conflict of interest or other impropriety.
The plaintiffs have attacked the executive order upon many grounds. We consider first those which relate to the power of the Governor to promulgate the order. The plaintiffs first contend that the "order is an unconstitutional usurpation of legislative power." This argument is difficult to comprehend. It seems to be based upon notions of separation of powers radiating from the opinion in Field v. People ex rel. McClernand (1839), 2 Scam. 3 Ill. 79, which involved an effort by the then Governor to remove from office the Secretary of State whom he had appointed with the advice and consent of the Senate. So far as questions of that kind may be involved, or thought to be involved, in this case, the Constitution of 1970 provides in section 10 of article V: "The Governor may remove for incompetence, neglect of duty, or malfeasance in office any officer who may be appointed by the Governor." Section 12 of article V of the Constitution of 1870 was to the same effect. See Wilcox v. People ex rel. Lipe (1878), 90 Ill. 186, 198.
The plaintiffs then argue:
"[T]he legislature has already acted in the passage of the Illinois Governmental Ethics Act and its action has been approved by this Court. Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409, (1972). Moreover, the legislature has specifically provided for the conditions upon which a person in public service may be disciplined or discharged. The Illinois Personnel Code, 1971 Ill. Rev. Stat. Ch. 127, Sec. 63(b) 101, et seq. provides that candidates for employment or eligibility under the Code may be rejected by the Director of Personnel only on certain conditions."
It is then asserted that by the executive order the Governor "has rewritten the Personnel Code of Illinois and the Illinois State Police Act and even the Illinois Governmental Ethics Act to impose a new condition of employment in State Government."
These somewhat strident contentions overlook some relevant considerations. Article 5 of the Illinois Governmental Ethics Act, which became effective January 1, 1968, authorized the Governor and each elected State officer in the executive department to promulgate detailed codes of conduct for appointed officers and employees under their jurisdiction (Ill. Rev. Stat. 1971, ch. 127, par. 605-101 et seq.), and executive orders applicable to employees in the executive branch had been adopted by Governors Kerner and Ogilvie. Article 5 was no longer necessary, however, after the Constitution of 1970 became effective, and it was repealed by Public Act 77-1806, effective January 24, 1972. (See Ill. Rev. Stat. 1973, ch. 127, par. 605-101 et seq.) Since then, the source of authority of the executive branch with respect to ethical standards and statements of economic interests has been section 2 of article XIII, which provides:
"SECTION 2. STATEMENT OF ECONOMIC INTERESTS
All candidates for or holders of state offices and all members of a Commission or Board created by this Constitution shall file a verified statement of their economic interests, as provided by law. The General Assembly by law may impose a similar requirement upon candidates for, or holders of, offices in units of local government and school districts. Statements shall be filed annually with the Secretary of State and shall be available for inspection by the public. The General Assembly by law shall prescribe a reasonable time for filing the statement. Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office. This Section shall not be construed as limiting the authority of any branch of government to establish and enforce ethical standards for that branch." Ill. Const. (1970), art. XIII, sec. 2.
The plaintiffs also contend that the executive order is invalid because it was not submitted to the General Assembly before it became effective. This contention is based upon section 11 of article V, which authorizes the Governor to "reassign functions among or reorganize executive agencies which are directly responsible to him." The section continues: "If such a reassignment or reorganization would contravene a statute, the Executive Order shall be delivered to the General Assembly." The plaintiffs do not identify any statute that they contend has been contravened by the order, and we are aware of none. The authority of the Governor to adopt this order is granted by section 2 of article XIII, which has been set forth.
It is also contended by the plaintiffs that the provision of the order which made its requirements applicable only to agencies whose vouchers are approved by the Department of Finance constitutes a denial of equal protection in violation of the fourteenth amendment of the Federal Constitution. We do not agree. Section 10 of "An Act in relation to State finance" (Ill. Rev. Stat. 1973, ch. 127, par. 137 et seq.) establishes a system for controlling State expenditures. Code departments, and all boards and agencies, with certain exceptions, may not draw funds from the State treasury unless their vouchers have been approved by the Department of Finance. (Ill. Rev. Stat. 1973, ch. 127, par. 146.) It is unnecessary to analyze each of the agencies excepted in section 10 and elsewhere, other than to note that several are quasi-independent bodies performing certain special functions. We consider that there exists here a rational classification consistent with the purposes of the order.
It is further contended that the classification of persons subject to the order is otherwise vague and indefinite and violated the plaintiffs' rights to due process of the law and equal protection of the laws. The persons subject to the order are:
"a. Each person appointed by the Governor;
b. Each person who receives $20,000 or more per year from the State; and
c. Each other person whose position is subject to undue influence (as determined from time to time by rule of the Board)."
Those persons appointed by the Governor, and those receiving more than $20,000 per year from the State are readily identifiable and these categories appear to embrace that relatively small percentage of all employees of the State who occupy the most responsible positions. For example, of more than 22,000 employees ...