David W. McArdle

Wednesday, April 22nd, 2015

Informal Approval of Settlement Agreement by City Council Is Unenforceable

An appellate court, in Meade v. City of Rockford, recently held that a settlement agreement, informally approved by a city council, was unenforceable despite a court having dismissed the case pursuant to the settlement. In coming to this resolution, the court answered three questions on appeal: Are litigation settlements excluded from the statutory (65 ILCS 5/3.1-40-40)requirement that city councils approve the passage of any resolution creating a liability against a city for the expenditure of money?; Are members of city councils required to vote consistently with their past approval of authority for the city attorney to make a settlement offer?; Is the parties settlement agreement enforceable against the municipality notwithstanding the city council’s subsequent vote to not approve the settlement? The court answered all three questions in the negative.

In Meade, a settlement was reached between the municipality and injured plaintiff the day before trial. During negotiations, five members of the city council gave their approval to the city attorney to settle the issue for $600,000. Subsequently, when the settlement was to be approved by the city council, two of the city council members who had previously approved the agreement changed their vote resulting in the settlement not being approved. Thereafter, the plaintiff brought suit to enforce the agreement.

Not surprisingly, the court held that litigation settlements are an expenditure of money that statutorily requires an approval of the city council. Further, the court held that they would not adopt a rule requiring city council members to vote consistently with their previous statements (however, the court did leave the trial court to determine whether the city council’s conduct was sanctionable). Finally, the court held that the previous settlement agreement was unenforceable because of the statutory requirement for city council approval.

As a result of this case, city council members should be advised that any settlement agreements that occur without the approval of the council may be unenforceable and could result in sanctions.

David W. McArdle

Authors: David McArdle, Jacob Caudill

Wednesday, January 28th, 2015

Further Limitations Placed on Governmental Immunity

As the snow continues to fall, it is important for local governments to reflect on a recent Illinois Appellate Court case concerning snow removal. In Pattullo-Banks v. City of Park Ridge, the court limited the breadth of governmental immunity under the Tort Immunity Act after a plaintiff was injured due to the failure of a municipality to adequately remove snow.

In Pattullo, the plaintiff was forced to cross the street once the snow and ice accumulation on the sidewalk became dangerous, and was subsequently injured. Under the Tort Immunity Act, a unit of local government only owes a duty “to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property.” 745 ILCS 10/3-102(a). In response, the local government claimed immunity as the plaintiff was not an intended user of the street (the place where the injury occurred). However, the Appellate Court disagreed. In its holding, the court found that “we must look to the property where the breach allegedly occurred (the snow accumulated sidewalk) to answer the question of whether the injured party was an intended or permitted user of the property,” and not where the injury occurred. Thus, the court held that the defendant was not immune from liability as the plaintiff was an intended user of the sidewalk.

In conclusion, this case should serve to remind units of local governments that governmental immunity may not extend in every situation, even when a plaintiff’s injury occurs outside the intended or permitted use of the property.

David W. McArdle

Author: David McArdle, Jacob Caudill

Tuesday, February 4th, 2014

A Victory and Caution for Administrative Hearings of Automated Red-Light Violations

The recent case of Farrar v. City of Rolling Meadows affirmed the ability of a municipality to implement and enforce its own administrative procedures for red-light violations.

The specific challenge made by the plaintiff was that both the Illinois Criminal Code (725 ILCS 5/111-3(b)) and the City’s municipal code required that the charging document contain a signature of an authorized official. The charging document, in this case, was an unsigned, mailed notice of violation.

The court disagreed and found the Criminal Code inapplicable because the Illinois Vehicle Code explicitly allowed a municipality to provide its own enforcement procedure of automated red-light violations (625 ILCS 5/11-208.3) by ordinance. Furthermore, the City did have a notification procedure for red-light violations in its municipal code, which did not require a signature, and which it followed to the letter.

The case is significant for two reasons. First, the case provides a validation of the general enforceability of administrative hearing or code hearing proceedings involving vehicle code violations that specify municipal adjudication. Second, the court did parse the municipal ordinance’s language to ensure that proper procedure was followed. Fortunately for Rolling Meadows, the process was properly followed, but it is advisable for any municipality that adjudicates similar violations to review its code carefully to ensure strict compliance with the notice requirements contained therein. Seemingly any deviation from procedural requirements could invalidate the citation.

David W. McArdle

Author: David McArdle

Wednesday, December 18th, 2013

Happy Holidays from ZRFM

We at ZRFM wish each of our newsletter recipients an enjoyable and safe holiday season.  We are thankful to have the opportunity to work with so many dynamic local governments, and we recognize and appreciate the work that the elected officials and staff put into making every unit of local government succeed.

This year brought a number of major changes that impacted municipalities and other units of government.  We will continue to provide relevant and timely updates to the laws that may impact your local government through our newsletter and our direct legal representation.

Keep in mind that you can always access our prior newsletter articles through our website’s Local Government section at: www.zrfmlaw.com/category/local-government-law-bulletin/.

Best wishes for a healthy and happy 2014!

David W. McArdle

David W. McArdle

Wednesday, September 25th, 2013

ZRFM’s Illinois State Bar Association Articles Now Available

More than 20 articles published in Illinois State Bar Association newsletters and authored by Zukowski, Rogers, Flood & McArdle lawyers can be viewed now on zrfmlaw.com. ZRFM is the largest law firm in McHenry County, Illinois.

The articles address topics involving labor and employment, local government, administrative law, and antitrust and unfair competition. Individual newsletter articles can be located by linking from the titles listed in the publications section of each attorney’s Web site biography. They also appear below chronologically:

Tuesday, September 3rd, 2013

Two New Laws Regarding Automobile Insurance

Electronic Proof of Automobile Insurance

Senate Bill 1775 was passed and went into effect in late August that now allows drivers to provide proof of their required automobile liability insurance on their portable electronic devices, during traffic stops and at court.

Police officers and court officials are provided immunity for any damage that occurs to electronic devices given to them for this purpose (i.e. dropping the phone in a puddle during a traffic stop).

However, the bill is clear that providing the device to an officer to show proof of insurance “does not constitute consent . . . to access other contents of the electronic device.”  As such, an officer should ask for separate consent to look at the phone’s call or message history if the traffic stop was predicated on the driver improperly using an electronic device.

A side note: Insurance companies are not required to provide electronic proof of insurance, and even if they do, the policy holder can still request paper versions of the policy and insurance cards.

Proof of Insurance Needed to Register a Vehicle

Another bill, SB 1940, will require anyone who registers a vehicle with the Secretary of State to provide valid liability insurance at the time of application, beginning in 2016.  Currently, the registration form and renewal form requests the applicant’s insurance information, but registration is not withheld if the applicant fails to provide the insurance information.

The information that must be provided includes the name of the insurance company, policy number, and expiration date of the policy.  Also beginning in 2016, any person who knowingly submits false insurance information with a vehicle registration would be guilty of a misdemeanor.

David W. McArdle

Author: David McArdle

Thursday, April 25th, 2013

Two Illinois House Bills on Gun Control Miss the Target Vote

Gun control may be the most divisive issue currently in our state’s politics.  Reflecting the divergent views, two different conceal and carry (C&C) proposals were voted down last week by the House.  The first proposal, Amendment to HB 831 (HB 831), sought tighter restrictions on applicants who could obtain a C&C license and proposed wide discretion to the police authority in deciding whether to issue the license.  The second proposal, HB 997, proposed less restrictive licensing requirements and more bright-line criteria that an applicant would either meet or not, along with fewer restrictions on where a C&C licensee would be allowed to carry a firearm.  HB 831 failed by a severe margin in the House (31 ayes, 76 nays), while HB 997 was only seven votes short of passing (64 ayes, 45 nays).

Despite the differences in the proposed legislation, there is good reason to believe that the General Assembly will pass a bill through the House and Senate in the very near future.  A C&C law must be enacted by June 9, or there will be no enforceable Illinois law concerning carrying a firearm in public.

The impetus behind the recent efforts to legislate C&C is the federal appellate court’s ruling in Moore v. Madigan.  The Moore decision rejected Illinois’ general prohibition of carrying handguns in public, but afforded the General Assembly 180 days to implement a suitable C&C law.

The major differences in the proposed legislation concern the manner in which licenses are issued.  HB 831 sought to have local authorities (county sheriffs primarily) initially process and approve the application before submitting it to the State Police to verify applicant eligibility.  Local authorities under HB 831 were to have broad discretion to reject or approve applications on criteria such as the applicant having “a particularized need for the license” and finding that the applicant is “a responsible person.”

HB 997 sought a one-step application process directly with the State Police and set out objective criteria that an applicant would either meet or not.  A local police authority could object to an application if its objection “demonstrates the applicant is a danger to himself or herself or others.” An administrative review could take place if the State Police denied the application based on the objection.

Another difference concerns the locations where a licensee could carry a handgun.  For example, HB 831 would have required a commercial or residential tenant to obtain permission of the owner/landlord to carry a firearm, while HB 997 would have required that commercial and residential lessees be allowed to possess and carry firearms on the leased premises.  Another example of the differences is that HB 831 sought to prohibit the use of the license during public events (such as street fairs, parades, farmer’s markets, public concerts), whereas HB 997 contains no such restriction.  As a whole, HB 831 is more restrictive of using the license than HB 997.

State Senators are reportedly drafting a bill that would bifurcate C&C between licenses for use in Cook County and licenses for use in other areas of the state.  Such legislation would presumably try to preserve aspects of HB 831 specific to Cook County in an attempt to garner sufficient votes from the Chicago constituency that generally desires stricter licensing requirements.

In whatever form C&C legislation is ultimately passed by the General Assembly, local governments and especially police departments should be on standby to understand the changes in the law because it would immediately impact current law enforcement procedures and local ordinances pertaining to the possession and display of weapons in public.

David W. McArdle

Author: David W. McArdle

Wednesday, May 2nd, 2012

McArdle Quoted in WSJ Article on Chicago Spire Forceclosure

David W. McArdle was quoted in the May 1, 2012, issue of the Wall Street Journal in an article about the Chicago Spire property on the Chicago lakefront. The title of the story is “Chicago’s Spire Remains Hole in the Ground.” The subtitle reads: “Four Years After Construction on the Tower Stopped, Development Is Stalled in Foreclosure Proceedings; Ties to Ireland.”

McArdle, a named partner in Zukowski, Rogers, Flood & McArdle, practices law in a variety of disciplines, including construction law. The article mentions that the Chicago Spire foreclosure proceeding that began about two years ago involves contractors such as Lorig Construction, which seeks to be repaid about $512,000.

The article quotes on McArdle about the improvements to the land.

” ‘It’s a hole in the ground,’ said David McArdle, an attorney for Lorig, which built exit and entrance ramps to the property. ‘It’s not moving forward.’ ”

The article notes that Illinois law does not automatically give mortgage holders first priority over lien-holders such as Lorig Construction if they establish they have improved the property’s value. To view the story by reporter Maura Webber Sadovi, please follow the link to the Wall Street Journal article (subscription required).

Zukowski, Rogers, Flood & McArdle, the largest law firm in McHenry County, Illinois, is widely recognized as a leader in construction law. McArdle is the author of Construction Law Road Map — 2011 (4th Edition). For more details about David McArdle’s professional credentials, please view his biography.


Wednesday, December 21st, 2011

Flood, ZRFM Divorce Practice Profiled in Leading Lawyers

Richard G. Flood’s career at Zukowski, Rogers, Flood & McArdle and the law firm’s divorce practice are the focus of a recent story in the 2011 Leading Lawyers Magazine – Consumer Edition. The magazine profiles 34 of the top consumer law attorneys in Illinois.

A reprint of the article appears here.

For several years, ZRFM partners Richard G. Flood, David W. McArdle and David J. Loughnane have been rated among the top 5 percent of Illinois lawyers by Leading Lawyers Network, a division of the Chicago-based Law Bulletin Publishing Company. With 20 lawyers, Zukowski, Rogers, Flood & McArdle is the largest law firm in McHenry County, Illinois.