                                                                                FOURTH DIVISION
                                                                                 Filed: July 13, 2006
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CITIZENS TO ELECT JACQUELINE Y. COLLINS,                       )
                                                               )
                                        Petitioner,            )       On review from an Order
                                                                       of
                                                 )                     the Illinois State Board of
                  v.                             )                     Elections
                                                 )
ILLINOIS STATE BOARD OF ELECTIONS, DANIEL )                            No. S 8067
W. WHITE, Executive Director, JOHN KEITH, Chairman,                    )
JESSE SMART, Vice Chairman, WILLIAM              )
McGUFFAGE, DAVID MURRAY, ALBERT PORTER, )
WANDA REDNAUER, ELAINE ROUPAS, and BRYAN                               )
SCHNEIDER, Members,                              )
                                                 )
                                Respondents.                           )



       JUSTICE MURPHY delivered the opinion of the court:

       Petitioner, Citizens to Elect Jacqueline Y. Collins (an Illinois political committee),

appeals from a decision of respondent Illinois State Board of Elections denying

petitioner=s motion to reconsider the imposition of a civil penalty. 1 Petitioner contends

on appeal that it showed both extraordinary circumstances for filing its motion to

reconsider in an untimely manner and the merits of its underlying challenge to the civil

penalty. It did so by showing that a campaign disclosure calendar issued by the Board

was misleading and that petitioner relied upon the misleading calendar in failing to


       1
           This is an appeal directly from the Board to this court pursuant to section 9-22 of the

Election Code (10 ILCS 5/9-22 (West 2004)), and Supreme Court Rule 335 (155 Ill. 2d R. 335).
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disclose particular campaign contributions in a particular filing. Petitioner also contends

that, if a civil penalty was applicable, it should have been limited to 10% of the amount

of the undisclosed contributions rather than their entire amount. Lastly, petitioner

contends that the Board did not vote by a majority when it imposed the civil penalty or

when it denied petitioner leave to file a late motion for reconsideration and, therefore,

the Board acted without authority.

                                          FACTS

       On various dates from July 29 through November 5, 2002, petitioner filed with the

Board documents disclosing the contributions to, and itemized expenditures of,

petitioner with regard to the primary election of March 19, 2002, and the general

election of November 2002. Particularly, petitioner=s semiannual report (Board form D-

2), filed July 29, 2002, listed contributions on March 15, 2002, of $1,000 by Elzie

Higginbottom and $500 by the Chicago Teachers Union PAC.

       On January 20, 2004, an employee of the Board, Rupert Borgsmiller, sent

petitioner a letter alleging that petitioner did not report, on Board form Schedule A-1,

contributions of $500 or more within two business days of receipt as required by section

9-10(b-5) of the Election Code (Code) (10 ILCS 5/9-10(b-5) (West 2004)). Specifically,

the letter alleged that two contributions, of $1,000 by Elzie Higginbottom and $500 from

the Chicago Teachers Union PAC, were made on March 15, 2002, but not disclosed on

a timely Schedule A-1 form. The letter stated that petitioner Ais fined a total of $1500 for

delinquently filing Schedule A-1 reports.@ The letter also informed petitioner that Ayou


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may appeal the assessed fines if you believe the civil penalties have been assessed in

error@ by filing a notice of appeal Awithin 30 days of the mailing of this assessment

notice.@ The letter concluded that, if petitioner failed to timely file an appeal, A[it]

forfeit[ed] the right to contest these assessments, and the civil penalties now due must

be paid, including the previously stayed fine, within 30 days of this mailing.@

       In a letter of February 4, 2004, Borgsmiller acknowledged petitioner=s $1,500

Apayment of a civil penalty for the delinquent filing of Schedule A-1 report(s).@

       On March 3, 2004, petitioner filed a notice of appeal with the Board. In the cover

letter, petitioner=s treasurer stated she had considered payment of the fine Aour only

viable option@ due to Athe untimely manner in which the [Board] processes appeals.@

Attached to the notice of appeal was petitioner=s appeal affidavit, stating that Aon

January 20, 2004, we paid the $150 fine 2 B despite its still pending appeal. But, on that

same day, the [Board] imposed yet another fine against [Citizens]: for failing to file a

Schedule A-1 Report, we were assessed $1,500.@ The treasurer explained that she did

not report the contributions because she relied upon the Board=s 2002 campaign

disclosure calendar, according to which the date for filing a new Schedule A-1 form had


       2
           There is no indication in the record as to the nature of this earlier fine, nor any

documents from this earlier proceeding.




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passed and no further Schedule A-1 forms could be filed before election day. When the

treasurer explained this to Borgsmiller by telephone on February 23, 2004, Borgsmiller

confirmed that the Schedule A-1 filing deadline on the calendar was not the deadline

mandated by the Code.

       On May 5, 2004, counsel for the Board sent petitioner a letter stating that its

appeal was untimely, having been filed more than 30 days after mailing of the

assessment notice. AIn this case the assessment letter was mailed on January 20,

2004, and the due date was February 19, 2004,@ while petitioner filed its notice of

appeal on March 3. The letter also stated that A[i]f there are extraordinary

circumstances that would warrant a granting of an extension of the due date, please

submit an affidavit of explanation. Should the Board grant the extension, your appeal

will be considered and disposed of accordingly.@

       On June 12, 2004, petitioner filed an affidavit of explanation by the treasurer, in

which she claimed that the campaign disclosure calendar issued by the Board did not

accurately reflect the requirements of the Code. The treasurer averred that it was her

reliance on the erroneous calendar that caused her to fail to file the Schedule A-1 form

as required. The treasurer stated that she was reluctant to file an appeal based on the

claim that the Board had so erroneously described the requirements of the Code and its

own regulations. AIt did not seem possible to me that the [Board] would have drafted a

document which misrepresents the Election Code.@ However, when the treasurer spoke

by telephone with Borgsmiller on February 23, 2004, Borgsmiller admitted that the


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treasurer Ahad, in fact, identified a discrepancy in the@ Board=s calendar. The treasurer

concluded that Aby the time I stopped doubting the merits of my own argument, the due

date for [petitioner=s] appeal had expired. And now, it seems, [petitioner] is being further

penalized for my tendency to trust the@ Board.

       On February 22, 2005, the Board held a hearing on petitioner=s affidavit of

explanation Alimited to the facts which would establish any extraordinary circumstances

warranting an extension of the 30-day period to file an appeal of a civil penalty.@ The

treasurer testified that her reliance on the Board=s campaign disclosure calendar caused

her failure to disclose the contributions in question on the Schedule A-1 form. Until she

spoke with Borgsmiller, the treasurer Aassumed that there was something I didn=t

understand *** because I didn=t think that the Board would distribute a document that

got something that fundamental and that important wrong.@ However, once Borgsmiller

Aacknowledged that I had identified a discrepancy,@ the treasurer realized that she had

valid grounds for an appeal. In his testimony, Borgsmiller denied that there was a

discrepancy per se in the calendar but admitted that the calendar in question was

misleading and that he had acknowledged to the treasurer that he Acould see how [the

treasurer] could misunderstand.@ The campaign disclosure calendar had been

amended to correct the misleading information found by the treasurer. The Board voted

4 to 4 on a motion to grant petitioner an extension of the time to file its appeal. The

motion was denied.




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       On the same day, February 22, 2005, the Board issued a written order on Aa

motion for Reconsideration of the imposition of a civil penalty under Article 9 of the@

Code. The order recited the Board=s finding that a AMotion for Reconsideration was filed

by [petitioner] based on additional evidence warranting the acceptance of the appeal

received subsequent to the 30 day deadline@ and the Board=s order that Athe Motion for

Reconsideration is denied.@

       Petitioner timely filed its petition for review with this court.

                             ARGUMENTS OF THE PARTIES

       Petitioner contends that it showed both extraordinary circumstances for filing its

motion to reconsider in an untimely manner, and the merits of its underlying challenge

to the civil penalty. Specifically, petitioner argued that a campaign disclosure calendar

issued by the Board was misleading and that petitioner relied upon the misleading

calendar in failing to disclose particular campaign contributions in a particular filing. The

Board responds that it did not abuse its discretion when it found that the treasurer=s

reliance did not constitute extraordinary circumstances entitling petitioner to file its

administrative appeal outside the usual 30-day period.             Petitioner also contends

that, if a civil penalty was applicable, it should have been limited to 10% of the amount

of the undisclosed contributions rather than their entire amount. The Board does not

respond to this particular argument.

       Lastly, petitioner contends that the Board did not vote by a majority when it

imposed the civil penalty on petitioner or when it denied petitioner leave to file a late


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motion for reconsideration and therefore the Board acted without authority. The Board

responds that this argument was not raised before the Board and is therefore waived on

appeal. Alternatively, the Board contends that it acted with authority, since Board

employee Borgsmiller had delegated authority to issue the assessment notice.

petitioner=s notice of appeal to the Board was untimely and could be saved only by a

positive vote of the Board finding extraordinary circumstances, rather than requiring a

positive vote of the Board to deny the appeal.

                                         ANALYSIS

                              I. Extraordinary Circumstances

       When a report required by Code section 9-10 is untimely or otherwise deficient,

Athe Board will send a notice of delinquency *** together with an Order assessing a civil

penalty calculated in accord with subsection (e).@ 26 Ill. Adm. Code '125.425(d), as

amended by 29 Ill. Reg. 18796 (eff. November 7, 2005). A political committee receiving

such a notice for violation of section 9-10(b-5), as in this case, must Asubmit, within 30

calendar days after the mailing of the assessment notice@ either payment of the civil

penalty or a written challenge of the penalty. 26 Ill. Adm. Code '125.425(f), as

amended by 29 Ill. Reg. 18796 (eff. November 7, 2005). AThe Board shall not hear an

appeal of a civil penalty imposed for delinquent filing *** if neither a request for waiver or

appearance and appeal affidavit nor a request for hearing and appeal affidavit is filed

within the time required.@ 26 Ill. Adm. Code '125.425(g), as amended by 29 Ill. Reg.




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18796 (eff. November 7, 2005). However, the Board allows extensions of the appeal

period when extraordinary circumstances justify it.

       Petitioner argues that it stated extraordinary circumstances: petitioner did not

realize it had grounds for an appeal because it relied upon the filing calendar issued by

the Board, and when a Board employee acknowledged that the calendar was

misleading, petitioner filed an appeal. Petitioner characterizes this as a classic case of

detrimental reliance. However, to Afind justifiable reliance, the court considers whether

the party was reasonable in relying on [the] representation in light of the facts within his

actual knowledge and any he might have discovered by the exercise of ordinary

prudence.@ D.S.A. Finance Corp. v. County of Cook, 345 Ill. App. 3d 554, 560 (2003).

The record shows that there was no concealment of the filing calendar=s flaw and that

the misleading nature of the calendar could reasonably have been discovered by

petitioner before the appeal period expired. First, while the assessment notice was sent

on January 20, 2004, the telephone call to Borgsmiller by the treasurer that confirmed

the misleading nature of the calendar was not made until February 23 and petitioner did

not file its notice of appeal until March 3. Second, the treasurer testified to the Board

that she had called Borgsmiller Ato understand why the campaign disclosure calendar

was not consistent with the Election Code.@ The treasurer stated repeatedly that she

Adidn=t think that the Board would distribute a document that got something that

fundamental and that important wrong.@ However, she clearly had at least an inkling or

suspicion that the Board had done just that, but failed to act on her suspicion until it was


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too late. A finder of fact could reasonably find petitioner=s detrimental reliance argument

less than extraordinary. We conclude that the Board did not err in denying petitioner=s

request for leave to file a late appeal.

                                     II. Fine Reduction

       Since we find that the Board did not err in denying petitioner=s administrative

appeal, the issue of whether the Board should not have imposed a fine, or should have

imposed a fine lower than the $1,500 herein, is not duly before us.

                       III. Fine Void Due to Lack of Board Approval

       By contrast, the issue of whether the fine herein was void because it was not

approved by a majority of the Board, as allegedly required by the Code, is properly

before us. An action or decision by an administrative agency taken in excess of, or

contrary to, its statutory authority is void. Alvarado v. Industrial Comm=n, 216 Ill. 2d 547,

554 (2005). Petitioner timely sought appeal from the Board=s decision of February 22,

2005, and thus this case is duly before us to consider whether the Board=s actions were

void. A decision or order can be challenged as void at any time in a court with

jurisdiction, and a claim of voidness cannot be waived because courts have an

independent duty to vacate void orders. People v. Mathis, 357 Ill. App. 3d 45, 51

(2005).

       Section 1A-7 of the Code provides that A[f]ive members of the Board are

necessary to constitute a quorum and 5 votes are necessary for any action of the Board

to become effective.@ 10 ILCS 5/1A-7 (West 2004). Code section 9-10(b-5), the statute


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petitioner allegedly violated, provides that, AIn the final disposition of any matter by the

Board, *** the Board may impose fines for violations of this subsection not to exceed

100% of the total amount of the contributions that were untimely reported, but in no

case when a fine is imposed shall it be less than 10% of the total amount of the

contributions that were untimely reported.@ 10 ILCS 5/9-10(b-5) (West 2004). Lastly,

Code section 9-19 expressly provides:

               AThe Board may hire such investigators, examiners, and

              hearing officers as may be necessary to carry out its

              functions under this Article, and may by regulation delegate

              any of its duties or functions under Sections 9-18 and 9-21 of

              this Article to such persons, except that final judgments and

              orders shall be issued only by the Board.@ 10 ILCS 5/9-19

              (West 2004).

       The clear import of the language A[i]n the final disposition of any matter by the

Board *** the Board may impose fines for the violation of this subsection@ in section 9-

10(b-5) is that the fine must be imposed by a final disposition of the Board. Section 9-

19 is equally clear that final judgments must come from the Board itself. In sum, we

conclude from the clear language of the Code that a fine or civil penalty under Article 9

of the Code must be approved by at least a majority of the Board itself to become a final

judgment of the Board. If a Board employee issues an assessment notice and the

subject of the notice pays of its own accord the fine described therein, then the Board


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need not reduce the fine to a judgment and the fine is valid without Board approval. If,

however, the subject of the notice does not pay the fine voluntarily and the Board wants

to collect the fine, or the Board wants to reduce the civil penalty to a judgment for some

other reason, then the Board must vote by at least a majority to impose the fine. To the

extent that the Board=s present regulations or procedures are contrary to this statutory

requirement, the rule or procedure will be held invalid and the statute followed.

Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1026 (2005).

       In this instance, the Board did not act in a manner contrary to the Code. The

Board did not reduce the assessment notice to a judgment because petitioner paid the

assessed fine almost immediately, and then failed in its administrative challenge to the

fine. In other words, because petitioner paid the fine without it being reduced to a final

judgment, the Board was not required to issue a final judgment imposing a fine on

petitioner. Under the circumstances of this case, the absence of a majority vote

approving petitioner=s fine did not render that fine void.

                                      CONCLUSION

       For the aforementioned reasons, the decision of the Illinois State Board of

Elections is affirmed.

       Affirmed.

       QUINN, P.J., and CAMPBELL, J., concur.




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