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92_SB1522gms
State of Illinois
OFFICE OF THE GOVERNOR
Springfield, Illinois 62706
George H. Ryan
GOVERNOR
August 17, 2001
To the Honorable Members of
The Illinois Senate
92nd General Assembly
Pursuant to Article IV, Section 9(b) of the Illinois
Constitution of 1970, I hereby veto Senate Bill 1522,
entitled "AN ACT concerning State Government."
Senate Bill 1522 creates the Small Business Advisory Act
(SBA Act) and requires each State agency to establish a small
business advisory page on the World Wide Web. Senate Bill
1522 also requires that each agency include plain language
versions of all regulatory or legislative "interpretations
and advisory opinions" issued by the agency. Further, Senate
Bill 1522 establishes that "any person who acts, or fails to
act, in reasonable reliance on the advisory opinions and
interpretations may not be held liable in any civil,
criminal, or regulatory action" because of that reliance.
As a former small business owner, I agree with the intent
of this legislation and I have been a strong supporter of
many similar efforts currently being carried out by my
administrative agencies via their current web pages,
published pamphlets, and electronic reports. However, I am
concerned that Senate Bill 1522 contains several
unanticipated and insurmountable problems.
Senate Bill 1522 would place many state regulatory
agencies in conflict with their federal counterparts. Most
federal statutes (upon which many Illinois programs are
based) require a strict liability standard as applied to
enforcement matters. Section 15 of the SBA Act would create
a subjective standard of "reasonable" reliance to determine
whether enforcement was appropriate. For delegated federal
programs, a less stringent State standard could cause the
federal delegation to be withdrawn or seriously challenged.
In cases where there is a state program that is federally
required, the approval of the entire state program could be
withdrawn. In some instances, this might subject the State
of Illinois to federally imposed sanctions, including the
loss of highway funds.
I am also concerned that Senate Bill 1522 may infringe
upon the traditional role of the Office of the Illinois
Attorney General, which is responsible for providing advice
regarding applicability of legislative enactments by issuing
advisory opinions on behalf of the Executive Branch. I am
also concerned that the courts of this State are likely to
find that Senate Bill 1522 impermissibly infringes upon the
court's powers authority of these courts since it appears to
delegate to the Executive agencies the authority to determine
legislative intent. In effect, Senate Bill 1522 would
effectively tie the hands of every court and states attorney
in the State by granting a liability waiver from any civil,
criminal, or regulatory action in which a defendant claims to
have acted under any "reasonable" reliance on the plain
language interpretation of any advisory opinion.
Furthermore, if Senate Bill 1522 were to become law, most
State agencies would encounter difficulties in determining
what is meant by the terms "advisory opinion" and
"interpretation," as used in Section 15 of the SBA Act.
Since those terms are not defined within the SBA Act, it is
unclear just what documents would be included within those
classifications. Likewise, it is unclear just what
"reasonable reliance" is intended to mean, and there is no
case law that would be persuasive since, for example, a
"reasonable" standard is not employed in environmental
enforcement litigation.
Senate Bill 1522 would likely create greater ambiguity
and uncertainty for small businesses that find themselves
regulated on one issue by more than one administrative agency
charged with administering the law. The resulting required
explanations by each agency may contradict one another,
especially since there could be differences of interpretation
between the two agencies. Based upon the interpreted intent
of Senate Bill 1522, it is this administration's belief that
the means of resolving differences of interpretation of
legislative intent is through resolution before the
appropriate court, and if necessary, ultimate review by this
State's Appellate and Supreme Court, and not through
explanations of conflicting state agency web pages.
The mandates imposed by Senate Bill 1522 upon State
agencies arguably contradict the requirements of the
Administrative Procedure Act (APA), in that the plain
language explanations described in Section 10 (b) of the SBA
Act may constitute a "rule" as defined in Section 1-70 of the
APA. Posting those statements on an agency's web page would
violate the APA's procedural requirements.
For these reasons, I hereby veto and return Senate Bill
1522.
Sincerely,
George H. Ryan
GOVERNOR