Local Government Law Bulletin

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

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

Friday, September 1st, 2017

Prevailing Wage Amendment Brings a Taste of the 21st Century to the Act

On August 18, 2017, Governor Rauner approved a bill that offers a minor but sensible modification to the Prevailing Wage Act. Public Act 100-0154 amends Section 9 of the Prevailing Wage Act that applies to those public bodies that use the Department of Labor’s determination of prevailing wages – that is, most public bodies. The Act permits the public body to post a hyperlink to the wage schedule for that body that is published on the Department of Labor’s website instead of requiring the body to publish the notice of determination in a newspaper of general circulation in the area.

Unfortunately, this bill does not free the public body from the requirement to mail a copy of its determination to any employer, association of employers or individuals or associations of employees who have asked for a determination of the rates, although this may be increasingly unnecessary with ready access by those parties to this data. However, at least by freeing public bodies of the newspaper publication requirement this amendment should result in a minor reduction in the local cost of administering the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Friday, September 1st, 2017

Like It or Not, Driverless Vehicles Are Coming to a Municipality Near You

Last month, Governor Rauner approved a bill concerning local government regulation of “Automated Driving Systems equipped vehicles” (i.e. driverless cars). As driverless vehicles are no longer mere science fiction, the Illinois Legislature has made a preemptory move to maintain a uniform regulation of these vehicles.

Under the new law, units of local government, including home rule units, “may not enact an ordinance prohibiting the use of Automated Driving System equipped vehicles on [their] roadways.” Furthermore, “[n]o unit of local government, including a home rule unit, may regulate Automated Driving System equipped vehicles in a manner inconsistent with [the Illinois Vehicle Code].”

However, the law does give units of local government the ability to regulate Automated Driving Systems equipped vehicles for “traffic control purposes.”

The law defines an “Automated Driving System equipped vehicle” as “any vehicle equipped with an Automated Driving System of hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis, regardless of whether it is limited to a specific operational domain.”


Jacob-D.-Caudill

Author: Jacob D. Caudill

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, August 14th, 2017

New Law Creates Additional FOIA Exemptions

Earlier this month, Governor Rauner approved a bill creating additional exemptions under Illinois’s Freedom of Information Act. Public Act 100-0026 creates three new exemptions which allow public bodies to deny FOIA requests sent by incarcerated persons. Specifically, the bill amends Section 7 of the FOIA to include the following:

“ . . . [T]he following shall be exempt from inspection and copying:”

* * *

(e-8) Records requested by a person committed to the Department of Corrections or a county jail, the disclosure of which would result in the risk of harm to any person or the risk of an escape from a jail or correctional institution or facility.

(e-9) Records requested by a person in a county jail or committed to the Department of Corrections containing personal information pertaining to the person’s victim or the victim’s family, including, but not limited to, a victim’s home address, home telephone number, work or school address, work telephone number, social security number, or any other identifying information, except as may be relevant to a requester’s current or potential case or claim.

(e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester’s current or potential case or claim.”

 

In sum, public bodies are exempt from disclosing the following records to incarcerated people:

  • Records that would risk harm or escape from a correctional facility
  • Records concerning the incarcerated person’s victim
  • The arrest records of other people.

As such, municipalities should keep this new law in mind whenever responding to FOIA requests from incarcerated persons.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Monday, July 24th, 2017

Illinois Attorney General Issues Two Binding Decisions Concerning FOIA

This month, the Attorney General’s Office released two binding Public Access Opinions concerning Illinois’s Freedom of Information Act. Specifically, both opinions (the eighth and ninth of 2017) concern a public body’s duty to respond to FOIA requests. Notably, one of the public bodies involved  is the Office of Governor Bruce Rauner.

In both opinions, FOIA requests were sent  seeking a variety of records. The request sent to the Governor’s office sought “emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger’s daily schedule for the next six months.” The public bodies in both matters never released the requested records and failed to respond to the inquiries of the Public Access Counselor as to the status of the FOIA request.

As such, the Attorney General’s Office determined that both public bodies violated Section 3(d) of the FOIA, which requires that “[e]ach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time of the response is properly extended.”

While these opinions do not provide any new guidance, they do show that the Attorney General’s Office will not hesitate to issue a binding opinion against those that ignore Illinois’s FOIA, even the Governor’s Office.


Jacob-D.-Caudill

Author: Jacob D. Caudill