“Requirement that faculty disclose their affiliations is not authorized by the law” – Matthew Finkin

Professor Matthew Finkin writes that “to require faculty to disclose any position held with the entities set out in the Executive Order [by Governor Rauner] would infringe on the constitutional right of association: a deaconship in one’s church, an elected position in a veterans’ organization, of an environmental organization, a labor organization, an advocacy group for children, the elderly, the handicapped, …” This disclosure is required on the new Supplemental Statement of Interests form imposed this Spring on about 8000 university employees. 

Prof. Finkin sent his message below to Chancellor Wise on May 12, 2015. We reproduce it here with Professor Finkin’s permission. 

The CFA has brought to my attention the Governor’s Executive Order No. 15-09 (filed January 13, 2015) implementing the Illinois Government Ethics Act, 5 ILCS 420/4A. It requires affected faculty members of the University of Illinois to disclose specified financial information; but, it also requires those affected to disclose the following:

Any non-governmental position held, whether compensated or not, with any business entity, non-profit organization, labor group, educational institution, or other entity of any type, together with the nature and amount of any compensation…

If this requirement were authorized by law it would work a serious infringement of the First Amendment to the United States Constitution. More than a half century ago the United States Supreme Court held unconstitutional a state law that required the NAACP to disclose its membership. The Court opined in one pertinent part that “compelled disclosure of affiliation with groups engaged in advocacy may constitute” an effective “restraint on freedom of association.” NAACP v. Alabama, 357 U.S. 449, 462 (1958). Thirty years later, a United States Court of Appeals confronted a requirement that certain police officers disclose all offices held in any non-profit entity or association. The court applied the by then more well-developed body of constitutional law:

It is, of course, now well established that there is a constitutionally protected “freedom of association”….[It] recognize[s] a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress or grievances, and the exercise of religion.” [Citation omitted.]

Compelled disclosure of memberships can “seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976). Thus, it can be justified only when the interests of the state survive exacting scrutiny and when there is “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.” Id. (footnotes omitted). See also Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 91-92, 103 S.Ct. 416, 419-20, 74 L.Ed.2d 250 (1982); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958).

Fraternal Order of Police Lodge 5 v. City of Philadelphia, 812 F.2d 105, 119 (3d Cir. 1987). See also AFGE v. U.S. Ry. Retirement Bd., 742 F.Supp.450 (N.D. Ill. 1990).

It seems quite clear that to require faculty to disclose any position held with the entities set out in the Executive Order would infringe on the constitutional right of association: a deaconship in one’s church, an elected position in a veterans’ organization, of an environmental organization, a labor organization, an advocacy group for children, the elderly, the handicapped, et cetera, et cetera. The list is nearly endless. Disclosure could be justified only by proof of the clearest, most exacting governmental need.

Accordingly, one turns to the source of law the Executive Order relies on to authorize the compelled disclosure – that is, the Illinois Government Ethics Act. Article 4A of the Act governs “Disclosure of Economic Interests,” and section 101(f) makes the law applicable to those employees of the Board of Trustees of the University of Illinois who are: heads of administrative units; who negotiate or administer contracts of $5,000 or more; who negotiate or assign or exercise other forms of control of state property presumably including intellectual property; or who supervise 20 or more state employees. Faculty who do not do any of the things set out in these subsections need not report. However, those who do are subject to the Act. But what, statutorily, are they subject to?

Section 4A-102(a) of the Act sets out what must be reported by all persons subject to the Act: (1) professional practice generating an income in excess of $1,200; (2) professional services exceeding $5,000; (3) source of capital gains exceeding $5,000; (4) identities of other government entities employing the employee; (5) name of donors of gifts or honoraria exceeding $500. Subsection (b) sets out additional matters to be disclosed by those subject to 101(f), i.e. affected University of Illinois faculty: (1) ownership of business interests doing business with the State above a set sum; (2) “the name of any entity and any position held therein” from which income in excess of $1,200 was derived if the entity does business with the state; (3) the identity of compensated lobbyists with whom the reporting person has a close relationship. Further, the legislation sets out the forms that may be used to meet these obligations.

No provision of the law requires, or even mentions, the disclosure of uncompensated positions held in unions, churches, environmental groups, and the like. The obvious reason is that the law is concerned with the “Disclosure of Economic Interests,” not ideological affiliation or office in sodalities unconnected to doing business with the state, its property, contracts, or the like. If this is correct, and it certainly seems to be the case, the requirement that faculty disclose their affiliations is not authorized by the law. Because it is beyond the state’s power to require such disclosure under extant law, whether it might conceivably be able to do so under the First Amendment need not be reached.

This is a serious matter which the administration, the faculty – acting through its Senate – and interested individuals and organizations should address. The Governor’s office should be prevailed on to excise this requirement. Were it to decline to do so, resort to judicial relief would be in order.

Matthew W. Finkin
Albert J. Harno and Edward W. Cleary Chair in Law
Center for Advanced Study Professor
Director, Program in Comparative Labor and Employment Law & Policy
University of Illinois, Urbana-Champaign

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