Brad Stewart

Tuesday, September 17th, 2019

We Hope to See You at the IML Conference!

Several ZRFM attorneys will be active at the IML Conference this Thursday-Saturday, September 19-21.

Please join us for “FOIA/OMA in the Internet Age” on Saturday at 10:30 a.m. in the Stevens Salon A-5. We will be presenting alongside Assistant Attorney General Leah Bartelt from the Public Access Bureau.

And please stop by to visit us at our informational booth in the Exhibitor Hall (Booth #701).

Brad Stewart

Author: Brad Stewart

Tuesday, May 14th, 2019

Governor Pushes Broad Plan to Legalize Recreational Marijuana

On May 6, 2019, Senate Bill 0007 was introduced which would legalize recreational marijuana use in Illinois. Governor Pritzker touted the plan as a vital source of revenue for the state and as necessary first step to expunging the criminal records of approximately 800,000 people who have been incarcerated or charged with marijuana-related offenses.

Some important points contained in the plan include:

  • Illinois residents over the age of 21 would be allowed to legally possess 30 grams of cannabis flower, 5 grams of cannabis concentrate, and 500 milligrams of THC in a cannabis-infused product.
  • Marijuana products would be taxed at a rate from 10% to 25% depending on type and THC content.
  • Local governments would be permitted to: prohibit the establishment of cannabis dispensaries in their jurisdiction if they “opt out” within one year of the passage of the Act, or alternatively by local referendum; levy their own sales taxes on marijuana products, these taxes may be imposed in .25% increments and cannot exceed 3%; enact reasonable zoning restrictions and/or rules governing cannabis establishments; and establish civil penalties for violating time, place, and manner regulations within their jurisdiction.
  • Certain individuals arrested for possessing, delivering, or growing marijuana in the past would be eligible to have their criminal record expunged.
  • Employers would still be able to determine their own drug policies.

While this bill is only in the preliminary stages and further amendments to it are likely, ZRFM will continue to monitor it as it progresses through the state legislature.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Friday, March 29th, 2019

Appellate Court Holds Riot Training Exercise Not an “Emergency” for Purposes of PSEBA

An Illinois Appellate Court held recently that a police officer who suffered a career ending “catastrophic injury” while participating in a simulated riot control training exercise was not entitled to health coverage benefits under section 10 of the Public Safety Employee Benefits Act (PSEBA). The Court opined that the injury occurred while the plaintiff was treating a training simulation as a real-life emergency which did not qualify as a true emergency as defined in PSEBA.

The plaintiff, a former Peoria police officer, was injured in February 2015 while participating in a mandatory riot control exercise. The exercise included a “briefing/classroom” session and a field simulation. After the classroom portion, while responding to the simulated riot, the plaintiff fell on icy pavement and struck her head. Fellow officers asked the plaintiff if she could continue, and she indicated that she could. The plaintiff completed the training and did not obtain medical treatment until the next day. In arguing that she should receive full PSEBA health insurance benefits under section 10(a), the plaintiff claimed that her injury was in response to what she “reasonably believed to be an emergency” under section 10(b). At an administrative hearing held pursuant to City code, the hearing officer denied the plaintiff PSEBA benefits.

Section 10(b) requires that, to receive the health benefits afforded by section 10(a), the officer’s injury “must have occurred as the result of the officer’s response to . . . what is reasonably believed to be an emergency.” In determining that what the plaintiff faced could not reasonably have been believed to be an emergency, the Court first noted that the Illinois Supreme Court has defined an “emergency” under Section 10(b) as “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

The Court then analyzed two Illinois Supreme Court cases involving firefighters injured during training exercises. In the first, a firefighter’s hose became fouled during an exercise, requiring him to backtrack through live fire and smoke with zero visibility. The Supreme Court found the exercise became an emergency when the hose became entangled, stranding the crew with no visibility, water, or option of ending their participation. The second case involved a firefighter attempting a simulated “downed firefighter” rescue while operating with a blacked-out mask along a predetermined path with no live fire. If at any time the firefighter ran out of air, he was to terminate the exercise. Here the Supreme Court determined that no emergency existed and 10(b) was inapplicable, the salient factor being that while the firefighter was told to treat the situation as an emergency, no unforeseen circumstance arose similar to that faced in the first case and at all times the conditions were controlled.

The Court found the plaintiff’s situation was more akin to that faced by the second firefighter than the first. The simulated riot was preceded by a briefing which explained what was going to occur. Furthermore, the icy surface that caused the plaintiff’s fall, though unforeseen, could not be “reasonably believed” to create an emergency. This simulation, under controlled conditions, created “no actual imminent danger to plaintiff or her colleagues, requiring an urgent response.” Finally, the Court found it important to note that the plaintiff was asked whether she wished to continue the exercise after her fall, an option that would not be available in an actual emergency.

This case is important as it points out that PSEBA benefits will likely not be available to officers suffering serious injury during training exercises where no unforeseen emergency situation arises.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Wednesday, March 13th, 2019

Amendment to School Safety Drill Act Requires Student Participation in Annual Active Shooter Drill

On January 1, 2019, Public Act 100-0996 (the “Act”) went into effect, amending the existing School Safety Drill Act by adding a requirement that children be present for schools’ annual active shooter drills. Previously, the School Safety Drill Act allowed schools to conduct the annual active shooter drill on a day when students were not present. The Act eliminates this discretion and puts an affirmative duty on schools to conduct the active shooter drill on a day when students are normally present so as “to evaluate the preparedness of school personnel and students.” Schools must also coordinate with local law enforcement to observe administration of the drill. If a mutually agreeable date for the drill cannot be agreed upon, the school must proceed with the drill absent local law enforcement involvement. Finally, the Act includes a requirement that the active shooter drill be conducted no later than 90 days after the first day of the school year. School districts and local police departments should be ready to coordinate on this drill and meet the new requirements of the Act for the upcoming 2019 school year.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Monday, February 18th, 2019

Open Meetings Act Requires Any Rules Limiting Public Comment Be Established and Recorded

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-002 in which it stated its position that Section 2.06(g) of the Illinois Open Meetings Act (OMA) requires that any rules limiting the public comment period of an open meeting be established and recorded. The fact that a restriction at issue is a well-established past practice over a period of years is insufficient if that restriction is not also recorded in the public body’s formal rules.

This PAC opinion arose from a request for review alleging that the Lyons Elementary School District Board of Education (the Board) violated OMA during an October meeting by enforcing a rule limiting the total public comment portion of the meeting to 15 minutes. After it became common knowledge that the Board had hired a teacher with a serious criminal charge on his record, approximately 100 parents and other members of the public attended the meeting, many of whom wished to speak. When the Board enforced a rule limiting the public comment to 3 minutes per speaker and 15 minutes total, a number of those wishing to speak were denied the opportunity. The Board pointed out that its policy manual, in Board Policy 2.230, specifically limited each speaker to 3 minutes in usual circumstances. Additionally, the Board’s Welcome Handout, which is placed on a table next to the agendas and sign in sheet at every Board meeting, limits public comment to 3 minutes per speaker and 15 minutes per topic, per meeting. This portion of the Welcome Handout is read aloud prior to public comment at every Board meeting. This had reportedly been the Board’s practice for at least 10 years.

First, the PAC noted that Section 2.06(g) of OMA expressly provides that individuals are entitled to address a public body subject to “the rules established and recorded by the public body.” While OMA does not address the types of rules that a public body may enforce, ordinarily only “reasonable time, place, and manner restrictions” which are content-neutral are permissible in such a public forum under the First Amendment to the U.S. Constitution. Furthermore, such rules must be reasonably necessary to protect a significant governmental interest and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials.

The case turned on the plain meaning of Section 2.06(g) and whether the rule at issue was both “established” and “recorded.” The PAC determined that the restriction of the comment period to 15 minutes was clearly established. However, this rule was not recorded as required by Section 2.06(g). While the Welcome Handout included the time restriction, the restriction was not included in Board Policy 2.230. While the rule had been the practice of the Board for 10 years and was read aloud at prior to all public comment periods, this did not “address the discrepancy between the Welcome Handout and Board Policy 2.230.” The PAC also noted that the Board “had not asserted that it had taken formal action to adopt the policies in the Welcome Handout, or that Board Policy 2.230 had been revoked or otherwise formally amended.” The PAC concluded that past practices that have not been incorporated into a public body’s formal rules are not “established and recorded” pursuant to Section 2.06(g) of OMA and cannot be enforced to limit public comment.

Accordingly, local governments should review their formally adopted rules governing public comment at meetings and ensure that they are consistent with what is intended and what has been practiced.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Thursday, January 31st, 2019

Federal Appellate Court Finds Government Officials Cannot Block Citizens on Social Media

On January 7, 2019, the Fourth Federal Circuit Court held that a government official’s social media page was the equivalent of a public meeting and thus an official cannot block a constituent from the page without violating that constituent’s free speech rights.

The case involved a local official in Virginia, Phyllis Randall, chair of a county board, who created a Facebook page the day before assuming office to communicate with and interact with residents. In February 2016, a frequent local government critic, Brian Davidson, posted an accusatory comment to the page about some local school board members. Randall deleted the subsequent exchange with Davidson and then blocked him from posting further comments to the page. Davidson filed a lawsuit alleging that by blocking him, Randall had committed “viewpoint discrimination.”

Randall argued that while she did discuss her government role on her Facebook page, she had essentially created the page as a private citizen and that it was a vehicle for her own private speech, not primarily a forum related to her governmental role. Furthermore, Randall argued that Facebook was a private company with its own rules for appropriate conduct. The court was unmoved by Randall’s arguments, first noting specifically that Randall had selected the option indicating that the page belonged to a “government official” when creating the page. The court further viewed Facebook as a distinctly public space in contrast to Randall’s assertion that it was a private forum. The court specifically stated, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a government building?”

The Fourth Circuit is the first jurisdiction to rule on this issue. A case is also pending in the U.S. Fifth Circuit Court of Appeals involving a similar situation where a sheriff’s office in Texas blocked a citizen from its Facebook page. It is only a matter of time before the Supreme Court weighs in on the issue. Municipal officials should be cognizant of the fact that social media connected to their governmental role can be construed as a public forum. Until the court systems further refine the issue, it is recommended that any official who wishes to maintain the rights of a private citizen refrain from using a Facebook profile to invite discussion on public issues.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Tuesday, September 18th, 2018

Law Expands Time to File Discrimination Complaint, Expedites Time To File Civil Lawsuit

Public Act 100-1066, which took effect on August 24, 2018, expands the time limit to file a discrimination complaint with the Illinois Department of Human Rights (IDHR), among other changes it makes to the department’s practices and procedures. As a result of the new law, the time limit to file a discrimination complaint has been increased from 180 days to 300 days.

In addition to this increase, the law also makes a number of additional changes to the IDHR’s practices and procedures. First, complainants will now be allowed to opt out of the IDHR investigation and immediately commence an action in court. This opt-out period begins at the time a charge is filed with the IDHR and runs for 60 days. Second, the IDHR will now have time limits to issue a notice of dismissal after a complainant notifies the IDHR of the issuance of a right-to-sue letter by the federal Equal Employment Opportunity Commission (EEOC). Next, the IDHR may now dismiss charges of discrimination if an action in court or another administrative agency would preclude claims in the IDHR charge. Finally, if such a dismissal is made, the IDHR must give notice to the complainant(s) and allow for a challenge to the dismissal to be made in front of the Human Rights Commission (HRC).

This law also makes two changes to the HRC’s practices and procedures. First, all commissioners must now be either practicing attorneys or have a minimum of four years of professional experience working with individuals or corporations that have contact with the Human Rights Act or similar laws. Second, the law creates time limits for administrative law judges and the HRC to issue and publish decisions.

Municipalities should be cognizant of the increased time employees now have to file a discrimination complaint with the IDHR.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Friday, August 31st, 2018

Law Adds New Mandates Regarding Officer-Involved Shootings

On August 19, 2018, the Governor signed into law Senate Bill 2378 which amends the Police and Community Relations Improvement Act to require every law enforcement agency to adopt a written policy for the internal review of officer-involved shootings. The amendment also requires that any officer involved in such a shooting incident must immediately report it to the appropriate supervising officer. Furthermore, each law enforcement agency is required to conduct a “thorough review of the circumstances of the officer-involved shooting.”

The written policy mandated by this amendment shall be available for copying and inspection under the Freedom of Information Act and is specifically excluded from any exemptions under that Act.

Municipal police departments should prepare to have such written policy ready when this amendment goes into effect on January 1, 2019.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Tuesday, August 21st, 2018

Amendment Expands Mandates for Local Government Financial Audits

On August 13, 2018, Senate Bill 2638 became law. It amends the Municipal Code, along with other Codes affecting local government, by expanding the mandates applicable to local government financial audits.

First, the new law requires that local government audit reports contain statements that set forth the financial position and the results of financial operations for each fund, account, and office of the county government. Additionally, the audit report must include the professional opinion of an auditor (not an accountant) with respect to the financial status and operations of the local government, or a declaration that an opinion cannot be expressed with the reason an opinion cannot be expressed.

Next, the audit report shall contain financial statements prepared in conformity with generally accepted accounting principles and audited in conformity with generally accepted auditing standards, but only if the last audit report filed prior to 2019 expressed an opinion by the auditor that the financial statements were presented in conformity with generally accepted accounting principles. Audit reports containing financial statements prepared in conformity with another comprehensive basis of accounting may follow specified best practices and guidelines and shall be audited in conformity with generally accepted auditing standards. If an audit report is submitted containing financial statements prepared in conformity with generally accepted accounting principles, thereafter all future audit reports must also contain financial statements presented in conformity with generally accepted accounting principles. Regardless, the audit report must include the auditor’s certification that the audit was performed in compliance with generally accepted auditing standards.

Finally, the law requires that each audit report filed with the Illinois State Comptroller be accompanied by a copy of each official statement or other offering of materials prepared in connection with the issuance of indebtedness of the local government since the filing of the last audit.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Wednesday, August 8th, 2018

Liquor Licenses Can Now Be Granted Near Churches, Schools

On August 2, 2018, SB2436 became law, allowing liquor commissioners to grant liquor licenses to establishments within 100 feet of schools, churches, and certain other buildings.

Please note that the local liquor code must expressly allow for the liquor commissioner to grant the exemption from what is otherwise the default 100-foot statutory distance requirement. The liquor commissioner must also exercise his or her right to grant the exemption. It is not automatically granted even if the liquor code allows for the exemption.

A municipality interested in allowing the new exemption should review its liquor code and amend it to comport with the statutory requirement.

Brad Stewart

Author: Brad Stewart