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

Tuesday, January 24th, 2017

Illinois Supreme Court Rules on Open Meetings Act

Last week, the Illinois Supreme Court affirmed the appellate court’s rejection of a problematic opinion from the Public Access Counselor (PAC) which found a board of education committed four violations of the Open Meetings Act (OMA). We reported on the matter involving the Springfield School District in 2014. Of particular concern was the seeming impossibility by which a local government could approve any contract without a lengthy recitation of the terms, even if the contract is made available online for public review. Also of concern is whether the use of a consent or omnibus agenda violates the OMA’s “public recital” requirements.

The pertinent facts in Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois are that school board members had agreed upon and affixed their signatures (but not the dates) to a separation agreement for their superintendent. The board then voted to approve that document in open session after public notice had been given. The PAC found a violation of the Open Meetings Act (“OMA”) concluding that the board took final action in closed session.

A circuit court judge rejected the PAC’s analysis and found that there had not been an OMA violation since the final action approving the contract was taken in public session.  However, the court sent the issue back to the PAC to allow it to determine if that final action in open session was preceded by information sufficient to inform the public of the nature of the business being done before the board voted to approve the separation agreement as required by the OMA. The PAC determined that the information presented at the public meeting in which the agreement was formally approved was not sufficient to meet the public recital requirements.

The circuit court reversed the PAC’s determination that the agreement was not sufficiently presented to the public. After the appellate court affirmed the circuit court’s holdings, the Illinois Supreme Court also affirmed the lower courts’ decisions. While the decision recognizes greater latitude for local government boards to present and vote on agenda items than the PAC’s interpretation, the Supreme Court made several key rulings, some of which recognize certain safeguards are still in place:

  • “[A]n agenda posting standing alone cannot fulfill the public recital requirement…”
  • “The language of section 2(e) [of the OMA] does not mention an explanation, the significance of the action being considered, or the attendees’ understanding. Rather…the public body must state the essence of the matter under consideration, its character, or its identity.”
  • “[U]nder section 2(e) of the Open Meetings Act, a public recital must take place at the open meeting before the matter is voted upon, the recital must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of its terms or its significance.”

Regarding the use of consent or omnibus agendas, the Springfield decision nominally suggests that each consent or omnibus agenda item should be read aloud prior to the vote, as opposed to merely referencing the posted agenda which contains the listed consent or omnibus agenda items. While Springfield did not specifically address this issue, best practice would be to read aloud each action item on a consent or omnibus agenda prior to voting.

Brad Stewart

Author: Brad Stewart

Thursday, November 10th, 2016

Illinois Supreme Court Rules on Video Gaming

We have continued to monitor court cases pertaining to municipal regulation of video gaming licenses and establishments. One case we previously reported on was J&J Ventures Gaming, LLC v. Wild, Inc. At specific issue in the case was the preeminence of the Illinois Gaming Board to enforce the Gaming Act. The appellate court and now the Illinois Supreme Court have weighed in and agreed that the Gaming Board has exclusive authority over the placement of terminals and agreements arising between video gaming establishments and the terminal providers, and that includes jurisdiction over exclusive location agreements.

The J&J Ventures case had remained a concern for municipalities, even though municipal regulation was not at specific issue, because the exclusive regulatory authority of the Gaming Board over video gaming was arguably applicable to municipal regulation as well. Nothing in the Supreme Court’s decision expanded the jurisdiction of the Gaming Board to municipal regulation.

Consequently, the First District Appellate Court’s holding in Accel Entertainment Gaming, LLC v. Village of Elmwood Park, is still the instructive authority on the scope of municipal authority to regulate video gaming. The court in Accel recognized that a home rule municipality could regulate video gaming beyond the statutory and IGB requirements because video gaming implicated local concerns of safety and welfare.

Brad Stewart

Author: Brad Stewart


Wednesday, August 31st, 2016

Clear and Present Concern for Right of Way Application Fees

A ruling by a lower court judge in August determined that the $1,500 application fee in the City of Altamont’s Right of Way Ordinance, similar to the Illinois Municipal League’s Model Right-of-Way Construction Ordinance, was “unlawful and prohibited by…the Telecommunications Municipal Maintenance Fee Act [“Act”].” Many municipalities have an ordinance consistent with the IML’s Model Right-of-Way Construction Ordinance, which was released in 2007.

The specific ruling by the lower court was that the Act explicitly forbade any franchise fee or other cost which pertains to “the recovery of reasonable costs of regulating the use of the public rights-of-way.” The fees many municipalities have implemented as part of their right-of-way applications were intended, at least in large part, to be offsets of administrative costs of handling and reviewing applications. The lower court’s ruling does not dignify the idea that any fee associated with a telecommunications provider’s application to use a right-of-way is permissible.

At this point, the issue was only ruled upon by a trial court, which does not create any mandatory precedent on other courts in the State. However, the holding will certainly embolden telecommunication providers to challenge municipal fees associated with the use of a right-of-way. Further, if this decision or a similar decision is upheld by an appellate court, then the holding would become generally binding on other courts.

Brad Stewart

Author: Brad Stewart

Wednesday, August 3rd, 2016

Failure to Comply with Filing Requirements Not Necessarily Fatal to Traffic Citations

We previously reported on the Fifth Appellate District’s People v. Geiler ruling, which most notably dismissed a traffic violation because the issuing municipality displayed a “clear and consistent violation” of the Supreme Court Rule 552 filing requirements. Rule 552 requires that portions of traffic citations be provided to the circuit court clerk within 48 hours of issuance. The issuing municipality in the Geiler case, the City of Troy, routinely filed tickets twice a week with the circuit clerk, resulting in only about half of the tickets being timely filed.

The Illinois Supreme Court overturned the Appellate Court, stating two holdings in the majority opinion:

  • Some harm to the defendant is generally required to sustain a challenge to a rule violation. The traffic defendant did not allege that he suffered any prejudice as a result of Troy’s tardiness in filing the citation.
  • No evidence was presented that Troy deliberately failed to follow Rule 552. The Court specifically reserved the right to reach a different conclusion if the facts demonstrated a deliberate disregard of Rule 552.

The overturning of the Geiler decision is beneficial to law enforcement efforts because the Appellate Court’s reasoning would have seemingly applied to misdemeanor traffic defendants and not just petty traffic defendants. Also, there is continued uncertainty as to how police departments can strictly honor the 48-hour filing requirement when courthouses are closed over weekends and holidays, unless an electronic transmission option is available.

Brad Stewart

Author: Brad Stewart