Local Government Law Bulletin

Thursday, April 19th, 2018

Governor Signs Bill Regulating Small Cell Devices

After long negotiations and discussions in Springfield, Gov. Rauner last week signed Public Act 100-0585 into law as the Small Wireless Facilities Deployment Act (the “Act”). This new law is designed to regulate the deployment of small cell devices in public rights of way. The bill pre-empts both home rule and non-home rule local government control of their rights of way. The idea behind the legislation (and the idea that appears to have won the day in Springfield) is that this pre-emptive law will help facilitate the rapid deployment of new wireless technology across the state and will eliminate local cost and regulatory barriers to deployment. The counter-vailing argument, that public taxpayers and their rights of way will be subsidizing private wireless providers, seems to have lost out to the argument that local governments were slowing down the deployment of this technology. The new Act creates a uniform procedure for small cell providers to gain access to public rights of way and to public facilities in those rights of way in order to deploy their small cell technology.

In simple terms, small cell technology is one technology used by wireless providers to provide greater access to high speed wireless data for consumers. Instead of relying solely on a handful of giant cell towers, the technology uses multiple smaller antennas that must be located close to users. These can be deployed or “collocated” on existing facilities such as existing utility poles, street lights, buildings or water towers, but they require proximity to users to be effective. They may also be deployed on new facilities when existing facilities are not available in the necessary range.

While the Act purports to leave some local control and still gives local authority to require a permit to locate a small cell device in a public right of way, in many ways it eliminates discretion at the local level. Small cell applicants will not be treated like local governments treat other utilities or franchisees who use their rights of way. Instead the Act accords small cell applicants certain rights, and limits the rights and ability of local authorities to recover costs and retain control for use of their rights of way. For instance, the bill declares that, from a zoning perspective, small cell devices will be considered a permitted use. The bill also establishes the procedure that must be followed when applications are received for small cell devices in public rights of way, the fee that may be charged and limits on the local government’s authority to deny a request.

Effective June 1, 2018, when a collocation or new pole request is made by a wireless provider to a local authority, the local authority must respond in accord with the Act. The regulations contained in the Act limit the ability of local governments to control the poles on which new antennas will be placed, the height of the new facilities (though there are some caps contained in the Act) and the spacing between poles. The Act sets precise rules and time limits for processing applications and it sets caps on the amount that may be charged for processing permits. The Act also limits the ability of local governments to control or deny access to their own poles in their rights of way and governs the price that may be set for the use of those poles. Local governments will still have some control over issues of public safety and some design standards, but the Act will make it more difficult for municipalities that have been working to have all utilities undergrounded.

Many localities had been approached in the last year with requests for monopoles in excess of 100 feet, and the good news in this bill is that, in general, local governments will not be required to accept new poles in excess of 45 feet. Similarly, many localities were concerned they would be forced to accept these devices on their water towers at fixed rates, but water towers are not included under this Act. For those bodies that have already entered into Agreements regarding placement of small cell devices on their poles, those Agreements may remain in effect for those applications submitted before the Act goes into effect and for a two-year period thereafter, it appears that the applicant will get to elect whether to proceed under the agreement or under the new terms offered under the Act.

Presently the Act is only in effect through June 1, 2021. Shortly after the effective date, local governments must ensure that their terms for use of their facilities, their permits, their application rates, their design standards and the review process for these applications – including their public safety requirements and limitations — are all in place if they wish to be able to enforce them under the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, April 19th, 2018

Appellate Court Rules That City Did Not Engage in the Unauthorized Practice of Law at Local Administrative Hearing

Late last year, the Illinois 1st District Appellate Court decided an appeal raised by an individual landowner (the “Owner”) arising from the City of Chicago’s Department of Administrative Hearings, seeking review of the decisions of the administrative law judge’s findings of liability as to ordinance violations.

In the case at issue, the Owner argued that it was an unauthorized practice of law by the City of Chicago (the “City”) when they were not represented by counsel at the administrative hearing, therefore the findings should be null and void. The facts of this case included that at the hearing, no one appeared on behalf of the City, including any agent or employee. The administrative law judge served as both judge and prosecutor, including introducing photographic evidence without witnesses, finding that the City had set forth a prima facie case, and finding the Owner liable.

The Illinois statute making it unlawful for a corporations to practice law or appear as an attorney at law for any reason in any court applies equally to private and municipal corporations.

The Court held that the Owner’s argument against the City failed. Specifically, there can be no practice of law unless an actual person engages in an undertaking that requires legal knowledge or skill. In the present case, the Court explained that corporations can only act through their agents, and because the Owner failed to identify an actual person acting on behalf of the City, the burden was not met.

The Court’s holding provides further guidance that a municipal body will not be found to engage in the practice of law unless they have an actual person (1) giving advice or (2) rendering services that (3) require the use of any degree of legal knowledge or skill.


Author: Dave Noland

Wednesday, March 21st, 2018

Fourth PAC Decision of 2018

Earlier this month, the Illinois Attorney General issued its fourth opinion of 2018. In this opinion, the Attorney General’s office analyzed the use of the Freedom of Information Act’s trade secrets exemption (5 ILCS 140/7(1)(g)). The FOIA request at issue sought the “latest revised redevelopment cost budget” submitted by a third party developer. The city denied the request pursuant to Section 7(1)(g) of the FOIA, which exempts trade secrets.

In ultimately ruling that the City violated the FOIA, the Attorney General concluded that Section 7(1)(g) did not apply for two reasons. First, the Attorney General stated that there must have been an express claim that records sought are “proprietary, privileged or confidential.” In particular, the Attorney General found the third party’s claim that it “submitted the information under an implied promise that [the records] would be kept confidential” to be insufficient, as the statute requires the claims to have been expressly made. Second, the Attorney General found that the City also failed to establish “that disclosure of the Budget would cause competitive harm to [the third party].” Specifically, the Attorney General found that the City did not provide specific facts or evidence that would have demonstrated competitive harm to the third party. The Attorney General went on to state “[i]n particular, the City has not detailed what competition [the third party] faces . . . [and] has not described how the line items in the Budget could be used to structure competitors’ developments in a way that would harm [the third party].”

As such, municipalities should always use caution when attempting to exempt records under Section 7(1)(g) of the FOIA.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Wednesday, March 21st, 2018

Illinois Attorney General Issues Third PAC Opinion of 2018

The Office of the Attorney General recently released Public Access Opinion 18-003, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by failing to respond to a FOIA request.

The FOIA request at issue sought individual records of a public official’s meeting schedule, including “communication in regards to dates, time, place and who the meetings were with.” The municipality, simply, did not respond to the FOIA request. Two weeks later, the individual sent a Request for Review to the Public Access Bureau, prompting an inquiry by the Bureau to the municipality. However, the municipality failed to respond to the Public Access Bureau. The Assistant Attorney General then followed up with the municipality by way of a written correspondence. Again, the municipality failed to respond to the Assistant Attorney General’s written correspondence. Through the date of the Attorney General’s final decision, the municipality had not properly responded to the FOIA request.

Not surprisingly, the Attorney General determined that the municipality violated section 3(d) of FOIA by falling to respond to the request. Section 3(d) holds that public bodies shall comply with or deny a request for public records within 5 business days, unless time for the response is properly extended. Here, the municipality failed to comply, extend time, or deny the request in writing.

While this Opinion does not provide any substantive guidance, it shows that the Attorney General takes blatant violation of the FOIA seriously.


Author: Dave Noland

Monday, February 19th, 2018

Attorney General Releases First PAC Opinion of 2018

The Office of the Attorney General recently released Public Access Opinion 18-001, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by redacting portions of an email sent by the Village President.

A radio station sought a copy of the resignation letter delivered by a former Village President. The resignation was sent in an email addressed to the Village Trustees and Village Clerk, at their Village email addresses. In the email, the Village President addressed his final decision to resign from office, which included his opinion concerning the circumstances behind his decision.

The Village raised two arguments in support of its decision to redact, (1) Section 7(1)(f) of FOIA and (2) Section 7(1)(n) of FOIA.

Section 7(1)(f) of FOIA protects preliminary records reflecting the opinions that public officials form while creating government policy. The Village claimed an exemption under this provision when it responded to the Office of the Attorney General, stating that the redaction contained an opinion expressed that is not final policy of the Village. The Office of the Attorney General determined that although the resignation contained the Village President’s opinion, it was not expressed as part of a deliberative or decision-making process, rather, it represented a single and final communication concerning his tenure as Village President. Therefore, the Village was not exempt from disclosure.

Section 7(1)(n) of FOIA exempts from disclosure records relating to a public body’s adjudication of employee grievances or disciplinary cases. The Office of the Attorney General held that because the Village failed to identify an ongoing-to-contemplated employee grievance, complaint, or disciplinary action that was or would be adjudicated, the redacted portion could not be considered related to “adjudication.” Again, the Office of the Attorney General found that the resignation was created and sent for purpose of explaining the reasons for the resignation, and was not exempt from disclosure.

In sum, the Office of the Attorney General found that the resignation was not exempt under 7(1)(f) because the opinions expressed were final, and not part of a deliberative process to formulate Village policy. Likewise, the Village was not exempt under 7(1)(n) because the Village failed to carry its burden in demonstrating an active adjudication regarding the employee grievance.


Author: Dave Noland

Monday, February 19th, 2018

Illinois Appellate Court Rules on PSEBA

An Illinois Appellate Court recently ruled on a case concerning the Public Safety Employee Benefits Act (the Act). The question before the court concerned the “unlawful act by another” provision under section 10(b) of the Act and how it related to a police officer’s injury.

Specifically, the injury occurred during an officer’s stop of an overweight vehicle. After the semitrailer was stopped and weighed, the officer ascended the ladder to inspect the vehicle’s load. While he was going up the ladder, he felt a “pop” in his knee. The officer then descended and completed the necessary paperwork and citation. The officer eventually needed to undergo knee replacement surgery. Both parties agreed that the injury was “catastrophic.”

However, the City denied the officer’s request for benefits under section 10(b) of the Act on the theory that the injury did not occur under one of the four circumstances identified in section 10(b). Section 10(b) states, in pertinent part, as follows:

(b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of [1] the officer’s response to fresh pursuit, [2] the officer or firefighter’s response to what is reasonably believed to be an emergency, [3] an unlawful act perpetrated by another, or [4] during the investigation of a criminal act.” 820 ILCS 320/10(b).

As a result of the denial, the officer filed a declaratory action against the City, alleging that the injury occurred in response to an unlawful act perpetrated by another. In response, the City claimed that the injury did not occur during the actual commission of an unlawful act because the officer’s injury “was sustained after the truck had already been stopped and during his subsequent inspection of the truck’s load.” The Circuit Court ruled in favor of the officer and found that the health insurance benefits delineated in section 10(b) applied. Specifically, the circuit court equated “as a result of” with the concept of “proximate cause.”

On appeal, the circuit court analyzed the meaning of “as a result of” as used in the Act. As the statute did not define the phrase “as a result of,” the Court looked to dictionaries to define the common meaning of the phrase. In doing so, the court determined that the injury was clearly a consequence of the driver’s unlawful conduct and the officer was entitled to benefits under section 10(b) of the Act. The Court reasoned that though the officer had already determined that the vehicle was overweight, the officer still needed to look at the “type of load” so that he could fulfill his duties as a police officer (completing the overweight report and issuing a citation). However, while the appellate court came to the same conclusion as the circuit court, the appellate court refused to equate “as a result of” with the concept of “proximate cause.”

One justice dissented, raising a concern that such a decision will expand the scope of benefits under the Act.  While only time will tell if such a concern is correct, we will continue to monitor how courts interpret the Act.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Thursday, December 7th, 2017

New Sexual Harassment Statute for Governmental Units

On November 16, Public Act 100-554 was signed by Governor Rauner and became effective immediately. Within P.A. 100-554 was an amendment to section 70-5 of the State Officials and Employees Ethics Act. This amendment requires that within 60 days of the passage of the act, each governmental unit adopt an ordinance or resolution establishing a policy to prohibit sexual harassment.

Sexual harassment as defined by the Act means any unwelcome sexual advances or request for sexual favors. The definition of sexual harassment also includes any conduct of a sexual nature which occurs in one of the following circumstances. First, when submission to the conduct is explicitly or implicitly a term of or condition of their employment. Second, when submission or rejection of the conduct is used as a basis for an employment decision affecting that individual. Finally, where the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

At a minimum, the ordinance or resolution establishing a policy prohibiting sexual harassment has to include four things. First, it must include a prohibition on sexual harassment. Second, it must have details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Department of Human Rights. Third, there must be a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Whistleblower Act, and the Illinois Human Rights Act. Fourth, the ordinance or resolution must state the consequences of a violation for the prohibition on sexual harassment as well as the consequences for knowingly making a false report.

To remain in compliance with the law, units of local government must adopt the resolution or ordinance no later than January 15, 2018.


Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson

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, November 1st, 2017

Federal Appellate Court Rules Long-Term Leave of Absence Cannot Be a ‘Reasonable Accommodation’

In September 2017, the United States Court of Appeals for the Seventh Circuit ruled that an employer was not required to accommodate an employee by granting him a multimonth leave after the employee’s 12 week FMLA leave expired.

In the case of Severson v. Heartland Woodcraft, Inc., 872 F. 3d 476 (7th Cir. 2017), the employee used all 12 weeks of FMLA leave and then scheduled a surgery on the final day of leave. The employer denied the request for extended leave and terminated the employee.

The employee asked the Court to extend the interpretation of “reasonable accommodation” under the Americans with Disabilities Act (ADA) to include long-term unpaid leave. The Court held that that a long-term leave of absence cannot be a reasonable accommodation. The Court rationalized by maintaining that a reasonable accommodation gives a disabled individual the means to work, while an extended leave of absence excuses the employee from working.

The EEOC filed a brief in support of the employee in which it argued that long-term medical leave should qualify as a reasonable accommodation when the leave is for a definite time, limited duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return. The Court disagreed with the interpretation, finding that such application would transform the ADA into a medical leave statute, as an “open-ended extension of the FMLA.”

As such, employers should take note that “reasonable accommodations” under the ADA do not include long-term unpaid leave.


Michael J. Smoron

Author: Michael J. Smoron; Dave Noland

Thursday, October 5th, 2017

Illinois Attorney General Releases 11th Public Access Opinion of 2017

The Office of the Attorney General recently released Public Access Opinion 17-011, which looked at whether a 9-1-1 call is beyond the reach of a Freedom of Information Act (FOIA) request.

A radio station sought to obtain two 9-1-1 recordings possessed by the Will County Sheriff’s Office in regard to the death of a 17-month-old child. The radio station filed two FOIA requests for the 9-1-1 calls on April 27, 2017, with the Will County Sheriff’s Office. The Will County Sheriff’s Office denied both requests for two stated reasons. First, the Will County Sheriff’s Office claimed that one recording was exempt from FOIA because it contained private information, in particular biometric identifiers. Second, the Will County Sheriff’s Office argued that the second recording was exempt from FOIA because the disclosure of the recording could impede the active investigation into the death of the child.

In regard to the first argument, the Office of the Attorney General determined that the common understanding of a biometric identifier was the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Because the 9-1-1 recording did not analyze caller’s voice to determine its identity, there were no biometric identifiers in the recording and therefore it was not exempt from the FOIA.

As to the argument that disclosure of the second recording could impede the active investigation, the Office of the Attorney General noted that the public agency must show a factual basis as to why disclosure would interfere with an ongoing criminal investigation. Finding that the Will County Sheriff’s Office did not provide enough facts to establish how it would interfere with the investigation, the Office of the Attorney General determined that the recording was not exempt from FOIA requirements.

In sum, the Office of the Attorney General found that a voice recording that did not involve an analysis of the voice to determine the speaker does not qualify as containing biometric identifiers and therefore is subject to FOIA requests. The Office of the Attorney General also found that a mere assertion that a disclosure would impede an ongoing criminal investigation, without a sufficient factual basis, is insufficient to exempt a record from FOIA requests.


Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson