Brad Stewart

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

Tuesday, December 5th, 2017

No Governmental Immunity for Cyclist’s Injury on Bike Path

The Illinois Supreme Court has redefined state law as to what is a qualified “trail” for purposes of the Local Government and Governmental Employees Tort Immunity Act (“Tort Immunity Act”). The subject case, Corbett v. County of Lake, involved a bicyclist sustaining injuries arising out of an uneven area of a paved pathway that ran parallel to a railroad track and which was otherwise surrounded by commercial businesses.

The subject provision of the Tort Immunity Act states that “neither a local public entity nor a public employee is liable for an injury caused by a condition of…any hiking, riding, fishing, or hunting trail.” The history of the case was that the trial court granted the municipal defendant’s motion for summary judgment on the issue of immunity because the path was being used as a bicycle riding trail. The appellate court overturned the trial court and ruled that a “trail,” by the court’s chosen dictionary definition, required that it be surrounded by a forest or mountainous region, which the path was clearly not.

While the Supreme Court agreed with the decision of the appellate court, it specifically rejected the definition of “trail” it used. The Supreme Court determined that the correct definition is not based on what surrounds the path but that “the legislature intended to apply blanket immunity only to primitive, rustic, or unimproved trails.” In other words, a well-marked and paved shared-use path would not qualify for immunity. The Court noted the potential absurd over-application of the immunity if it could be applied to any paved path which went through public parks just because there were trees around the path.

Brad Stewart

Author: Brad Stewart

Wednesday, September 20th, 2017

Police Departments Required to Adopt Additional Policies for Officer-Involved Shootings

Recent changes went into effect for the Police and Community Relations Improvement Act (“Act”). The Act originally went into effect in 2016 and requires all law enforcement agencies to have a written policy addressing investigations into officer-involved deaths.

The amendment adds an additional requirement that law enforcement agencies must adopt a written policy mandating drug and alcohol testing of an officer involved in an “officer-involved shooting,” as soon as practicable, but no later than the end of the officer’s shift in which the shooting occurred.

Changes to drug and alcohol testing policies are typically considered a subject of mandatory union bargaining, and police departments should consider whether a discussion with any bargaining units may be necessary prior to implementing the changes. In this case, the new state law will preempt any request by a union to lower the mandatory policy requirements, but there may be considerations that a union may wish to address within a compliant policy.

Law enforcement agencies should review the Act’s additional requirements and should also consider how unions may be implicated by any policy change involving drug and alcohol testing.

Brad Stewart

Author: Brad Stewart

Tuesday, August 15th, 2017

New Laws Seek to Consolidate Units of Local Government

Governor Rauner signed into law amendments to various existing laws that are intended to expand the consolidation of various units of local government. Part of the legislation expands the Local Government Reduction and Efficiency Division of the Counties Code to apply to all counties (it currently applies only to DuPage, Lake, and McHenry Counties). The amendments also better clarify how obligations of a dissolving unit of local government are administered and assumed by the absorbing unit of government.

An amendment to the Township Code removes the limit of townships to 126 square miles, thus making it possible for several townships to consolidate into one. Other amendments allow for more flexibility in township consolidation into other townships or into a municipality.

The scheduled effective date of the amendments is Jan. 1, 2018, although the effect of the amendments is conditioned on the passage of other pending bills.

Brad Stewart

Author: Brad Stewart

Monday, July 24th, 2017

Case Upholds Ordinance Prohibiting Unregistered Vehicles on Private Property

In mid-July, the Second Appellate Court upheld the Village of Round Lake Beach’s ordinance which provides: “It shall be unlawful to store any vehicle upon open private land unless such vehicle shall be duly registered for operation on public highways in the state…” Significantly, the Court made its decision on the limited issue of home rule authority which the Village possessed; it did not directly address if a non home rule unit would have the same valid police power.

However, a portion of the decision which addressed the reasonable relationship of the ordinance to a public interest could be cited as strong support for non home rule units to do the same: “It is reasonable to attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicle that cannot be driven legally. Thus, the ordinance is a valid exercise of the Village’s police power.”

Our opinion is that this decision is strong support for municipalities to regulate vehicles on private property, but not an unlimited recognition of power. A municipality which already has or would like to implement an ordinance pertaining to inoperable and/or unregistered vehicles in open view on private property, is directed to review the public interest being served (i.e., reduction in vermin infestation, the aesthetics of the community, reduce risk of vandalism) and clearly articulate those interests in adopting or revising a similar ordinance.

Brad Stewart

Author: Brad Stewart

Thursday, May 18th, 2017

FOIA: The Blurry Line Between a Public College Foundation and a Public Body

The Second District Appellate Court ruled that the Foundation for the College of DuPage was so sufficiently intertwined with the College that records in the Foundation’s possession were subject to disclosure under the Freedom of Information Act (FOIA).

The underlying facts are that the Chicago Tribune submitted a FOIA request to the College and the Foundation, seeking documents and a specific grand jury subpoena. The College initially claimed it had no responsive documents before producing all documents except the subpoena (which it claimed it did not possess), while the Foundation claimed that it was exempt from FOIA because it was not a public body and any documents in its possession were not public records.

The Appellate Court affirmed the trial court’s ruling that while the Foundation was not, in itself, a public body, it was performing public functions. Some of the relevant aspects of the relationship between the Foundation and College included: the Foundation handled all fundraising efforts, along with collections and disbursements of private donations for the College, the College offered its employees to assist the Foundation in performing its functions, Foundation employees were provided benefits as though they were College employees, and College employees were involved in positions of influence on the Foundation. Much of the relationship between the Foundation and College was memorialized in a Memorandum of Understanding executed by the boards of each entity.

Having found that the Foundation was fulfilling public functions, documents in its possession that pertained to those public functions were thereby subject to FOIA.

An important legal aspect of the case was that the Second District largely eviscerated a First District interpretation of a key FOIA provision. The College argued, based on the prior case, that in order for it to provide documents responsive to a FOIA request, the “public records” sought must, generally, pertain “to the transaction of public business” and/or have been created, used, or controlled by the College. The subtle implication being that only a narrow set of documents that are in the possession of a third party would be subject to FOIA. Specifically, the College asserted that because it did not retain the subpoena sought by the FOIA request and because the subpoena did not meet the narrow definition of a public record pertaining to a third party, neither the College nor the Foundation were obligated to produce the subpoena.

The Court dismissed this argument stating that it would create an absurdity that public documents could effectively be hidden from the public by simply outsourcing the creation and storage of documents to a third party, such as the Foundation. While the decision is seemingly logical, the College made a good, albeit unsuccessful, argument based on prior case law interpreting the same provisions.

There are two main takeaways from the case:

  • Whether or not a foundation (or contractor or other third party) is actually a subsidiary of a public body does not change its responsibility to respond to FOIA documents, as would the public body itself, so long as the documents pertain to the foundation performing public functions
  • Several park districts, park departments, and community colleges have foundation boards, and both the public entity and the foundation should be aware of the functions and relationship of each entity, because there may be implications for FOIA as well as other areas of law.

Brad Stewart

Author: Brad Stewart

Thursday, February 23rd, 2017

MCCG Annual Legislative Trip

The McHenry County Council of Governments (MCCG) conducted its annual legislative trip to Springfield last week. The MCCG constituents met with State Representatives Durkin, Flynn, McSweeney, Reick, Skillicorn, and Wheeler, as well as State Senators Althoff, Cullerton, McConnaughay, and Rodogno. The group was also able to meet with Governor Rauner the same afternoon as his annual budget address.

Key items on the MCCG legislative agenda included perennial concerns of potential cuts to the Local Government Distributive Fund (LGDF) and the resource burden placed on local governments by unfunded legislative mandates, such as prevailing wage requirements and heightened FOIA regulations.

Regarding the LGDF, the tone of the legislators and Governor Rauner was that the LGDF was not in immediate danger of being cut substantially, if at all. This is a very different tone from two years ago when a bill proposing a 50 percent cut to LGDF funding was contemplated and seemed imminent as part of Governor Rauner’s initial budget priorities.

Brad Stewart

Author: Brad Stewart