Local Government Law Bulletin

Tuesday, September 18th, 2018

Municipal Election Filing Season Is Upon Us

Preparations for the April 2, 2019, Consolidated Election for municipal offices are now underway. The Illinois election regulations can be very confusing with different rules, petition requirements and filing deadlines for partisan and non-partisan municipalities and for established political parties.

Municipal election officials need to know if their municipality holds partisan or non-partisan elections. This is often a source of great confusion because most (but not all) municipalities established before January 1, 1992, when the Illinois Municipal Code governing elections was revised, were, by default, “partisan” municipalities unless they had held a referendum to become “non-partisan.” Effective January 1, 1992, the amendments to the municipal code reversed that.

Adding to this confusion is the fact that in many “partisan” municipalities, the majority of candidates are not members of established political parties but, instead, are identified as “independent” on petitions and ballots. Often people incorrectly assume that because they always have had “independents” on their ballot then that must mean they have “non-partisan” elections. The opposite is true — in non-partisan elections candidates are not identified with any party, so you will only find the official “independent” designation in partisan elections.

All of this matters because the filing deadlines, petition signature requirements and forms to be used will depend on whether a municipality holds partisan or non-partisan elections and whether in a partisan municipality there are candidates from established political parties submitting petitions. Are you confused yet? When in doubt we urge you to consult with your legal counsel, your County Clerk, or with the State Board of Elections. You can find much helpful information on the Illinois State Board of Elections website or by reading the 2019 Local Election Officials Handbook issued by the State Board of Elections here. The Municipal Clerks of Lake County will also be hosting a Local Election Training Program in September with a wealth of helpful information for local election officials.

In the “good news” department for many local municipal election officials, if your office is not otherwise scheduled to be open on December 24, 2018, then you do not need to come in specially that day to accept objections to nominating petitions for new political party, nonpartisan, and independent candidates. State law says that the objection period for those nominating petitions ends on the fifth business day after the December 17 petition filing deadline. If the 24th is not a business day for you, then you should not count it in the five business day calculation. Instead, close the objection period on the fifth actual business day after the December 17 filing deadline. For many offices that are scheduled to be closed on December 24, 2018, this will likely mean that objection petitions will be due instead on December 26 or whenever you are next open for business.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Tuesday, September 4th, 2018

General Information Related to Public Duties in Settlement Agreements Not Excludable Under FOIA

In August 2018, the Office of the Attorney General published Public Access Opinion 18-010 which emphasized that information regarding claims against a school district stated in broad, general terms and that was related to a public employee’s public duties was not exempt from disclosure under the Illinois Freedom of Information Act (FOIA).

The Attorney General (AG) published this opinion in response to a case where the Illinois Education Association (NEA) submitted a FOIA request to the Arbor Park School District No. 145 seeking copies of records that pertained to the settlement agreement between the District and one of its former principals. The Department provided records but redacted information on the claims the principal could potentially bring against the District, as “an unwarranted invasion of personal privacy” under FOIA Section 7(1)(c).

The AG confidentially reviewed an unredacted copy of the agreement and found that the redacted information described the principal’s allegations and potential claims against the District in only broad, general terms. Furthermore, the redacted portions did not provide any details of the circumstances or events giving rise to the principal’s allegations, nor did it name any individuals or describe any specific conduct. Finally, the AG found that the redacted portions of the agreement bore on one or more public employees’ public duties.

Most importantly, the opinion cites a four-factor test for determining if the release of otherwise personal information contained in public records constitutes a “clearly unwarranted invasion of personal privacy” under FOIA section 7(1)(c). The factors to be weighed are as follows: 1) the requestor’s interest in disclosure, 2) the public interest in disclosure, 3) the degree of invasion of privacy, and 4) the availability of alternative means of obtaining the requested information. For the reasons cited above, the AG determined that the factors weighed definitively in favor of disclosure.

The result of this opinion is that information contained in settlement agreements, if broached in broad, general terms and devoid of overly personal details, and which definitely bears on the public duties of a public employee, cannot be exempted from FOIA requests under section 7(1)(c).


David W. McArdle

Author: David McArdle, 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

Tuesday, August 21st, 2018

Amendment Tempers Truancy Law

On August 10, 2018, the Governor signed into law Public Act 100-0810 loosening the state’s truancy laws and mandating employee training on available support services to promote student attendance and engagement.

First, the amendment expands the meaning of the term “valid cause” for a student absence to include circumstances that cause reasonable concern to the parent for the mental and emotional health of the student in addition to the existing causes in the law, which only encompass concerns for the student’s physical health or safety. Next, the law requires a school district to notify the district’s truant officer, regional office of education, or intermediate service center and make all appropriate and available supportive services and other school resources available to the student before referring any person having custody of the student to any other local public entity for issuance of a fine or fee; the school district also must document that such services were offered. Additionally, the amendment makes it impermissible for the school district to refer a truant, chronic truant, or truant minor to any other local public entity for that local public entity to issue a fine or fee directly to the student as punishment.

Finally, the law requires school districts to make reasonable efforts to provide ongoing professional development to teachers, administrators, school board members, school resource officers, and staff on the appropriate and available supportive services for the promotion of student attendance and engagement.

School districts should prepare to make the appropriate changes to their truancy programs to integrate the requirements of this amendment.


Author: Dave Noland, 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, July 31st, 2018

Illinois Appellate Court Clarifies FOIA Undue Burden Exception

In a July 2018 ruling, an Illinois appellate court clarified the requirements for claiming a section 3(g) undue burden exception under the Illinois Freedom of Information Act (FOIA). The case involved a FOIA request for various pieces of non-personal identifying demographic information contained in a community college’s databases.

To claim a section 3(g) exemption under FOIA, the public body must show the following:

  • Compliance with the record request represents an undue burden.
  • There is no way to narrow the request.
  • The burden outweighs the public interest in disclosure.

Any exception to FOIA must be read narrowly. Additionally, a FOIA “request that is ‘overly broad and requires the public body to locate, review, redact and rearrange for inspection a vast quantity of material that is largely unnecessary to the [requestor’s] purpose’ constitutes an undue burden.”

In overturning the grant of the college’s motion to dismiss, the Court re-considered testimony offered at a lengthy evidentiary hearing. First, the college’s Chief Information Officer had testified that retrieval of the requested information would take at least a week for each of the seven pieces of requested information, totaling more than 150 hours, if employees performed the task in conjunction with their normal duties. Additionally, the requestor testified that he was seeking the information in his role as parking chairman of Aurora Downtown, a taxpayer funded oversight committee. The city had invested approximately $45 million in the college’s downtown campus in the form of incentives and preferential treatment, and the requestor wanted to study whether the college was prioritizing programs that pushed students away from the new downtown campus to a secondary campus in Sugar Grove.

In examining the trial court’s findings of fact, the Court determined that the trial court had erred in how it considered the length of time it would take college personnel to comply with the request. The Court held that only the amount of time it would take to comply with the request, separate from regular duties, was relevant. The college’s Chief Information Officer testified that each of the seven requests would take approximately one full day to complete if an employee focused on the task exclusively. Therefore, the appropriate amount of time to consider relative to undue burden was 56 employee hours, not the “over 150” mentioned in the trial court’s ruling.

Next, the Court noted that the trial court had failed to make a finding on whether there was any way to narrow the request. The trial court had addressed an important threshold question associated with this element in that the college had offered the requestor an opportunity to narrow his request. However, it had failed to determine whether the request could, in fact, be narrowed.

Finally, the Court held that the trial court had erroneously minimized the public interest value of the requested information. The trial court had characterized the requested demographic information as an attempt to “speculate about what businesses that the students might frequent.” The Court, however, found that the request carried more public interest weight as it was an attempt to examine the benefits of Aurora’s investment in the college’s downtown campus. The Court likened this to the significant public interest in how tax dollars are spent, finding that the requestor’s actions were in accord with his role in Aurora Downtown and its mission to promote local business and economic development.

In conclusion, the Court made three important holdings regarding the section 3(g) FOIA exception. First, in determining an undue burden, the court should consider the time necessary to comply with the FOIA request alone, not in conjunction with employees’ regular duties. Next, a court must determine whether the request can be narrowed, not simply address the threshold question of whether the public body had offered the requestor the opportunity to narrow the request. Finally, there is a significant public interest in examining how a public investment is benefitting the investing city.


David W. McArdle

Author: David McArdle, Matt Marcellis

Wednesday, July 25th, 2018

Property Index Numbers are not Excludable Under FOIA

In June 2018, the Office of the Attorney General published Public Access Opinion 18-009 which emphasized that property index numbers were not exempt from disclosure under the Illinois Freedom of Information Act (FOIA).

The Attorney General (AG) published this opinion in response to a case where an attorney submitted a FOIA request to the City of Chicago Department of Business Affairs and Consumer Protection seeking a list of all properties that had been granted a Commissioner’s Adjustment. The attorney requested that property index numbers be included in the response. The Department provided records, but redacted the property index numbers, claiming they were exempt as “private information” under Section 7(1)(b) of FOIA, or, in the alternative, as “an unwarranted invasion of personal privacy” under Section 7(1)(c).

The opinion points out that a property index number identifies a specific parcel of property, not an individual. Furthermore, they are readily available to the public on governmental websites and are subject to public inspection by statute and therefore are not private information. The fact that a property index number could be used to more readily seek out the identity of the owner did not sway the AG, who reasoned that “the fact that a person can combine various available pieces of information to ultimately identify otherwise exempt information does not render that information exempt from disclosure.” Additionally, the release of property index numbers is not an unwarranted invasion of personal privacy since the numbers are readily available and since there was a substantial public interest at stake in this case, namely ensuring that the adjustments at issue were being granted equitably.

Most importantly, the opinion cites a four-factor test for determining if the release of otherwise personal information contained in public records constitutes a “clearly unwarranted invasion of personal privacy:” 1) the requestor’s interest in disclosure, 2) the public interest in disclosure, 3) the degree of invasion of privacy, and 4) the availability of alternative means of obtaining the requested information.

The result of this opinion is that property index numbers, and likely many other types of personal identifiers that do not identify individuals directly or that can be combined with other readily available information to identify individuals, cannot be exempted from FOIA requests.


David W. McArdle

Author: David McArdle, Matt Marcellis

Wednesday, July 25th, 2018

Governor Set to Sign Legislation Expanding Employee Background Checks

On May 25, 2018, the General Assembly passed Senate Bill 2907 and on June 22 sent it to Governor Bruce Rauner where it awaits his signature. The bill, which amends the current Criminal Identification Act, would allow agencies in Illinois that can either perform or receive national criminal background checks to participate in the FBI’s Next Generation Identification (NGI) Rap Back Service. This service, which will be administered in Illinois by the State Police, allows authorized agencies to receive notification of arrests anywhere in the country on employees who have had their fingerprints submitted to the FBI database. Such fingerprints could be taken as part of a background check run at the time of hire. This service eliminates the need for repeated background checks on a person from the same applicant agency. Prior to this legislation, employers in Illinois only received a one-time snapshot of an employee’s criminal record at the time of hire along with updates only on any crimes the individual committed within the state. Participation in the FBI’s service would allow employers to receive real-time notifications of infractions of law anywhere in the U.S.

This capability has obvious benefits for agencies employing persons in positions of trust, such as school teachers or daycare workers, but the program raises some potentially serious issues as well. The American Civil Liberties Union (ACLU) of Illinois is opposed to the measure because, as a part of the system, the fingerprints submitted to the FBI database are retained by the federal agency indefinitely, and the FBI is not restricted to using the prints solely for the Rap Back System. Furthermore, employers could be notified of mere arrests, not just convictions, potentially impacting an employee’s livelihood before guilt of any wrongdoing is proven. While the Illinois State Police indicate they do not intend to send out notifications of arrests, but rather only convictions, the possibility remains.

A second concern is the accuracy of the information the Illinois State Police could relay to employers. In 2004, the National Institute of Standards and Technology reported that fingerprint identification was 99.6% accurate. This is an impressive figure to be sure, but it still allows for a .4%, or 1 in 250, chance that there will be an error. Add to this the fact that the FBI’s fingerprint database, the Integrated Automated Fingerprint Identification System (IAFIS) which the Rap Back system draws from, had more than 70 million prints in the criminal master file alone as of 2012. Countless law enforcement agencies across the county access this FBI system daily to look for matches with alleged perpetrators. While the chance for error is low, the sheer volume of prints and cross-checks that occur make it a virtual certainty that errors will occur.

While there are definite benefits to the FBI’s NGI Rap Back Service for municipalities employing persons in positions of trust, there are also potential issues to consider. These include the security of the prints submitted to FBI’s system, the potential for misuse, and the possibility of a false criminal identification greatly impacting an innocent employee. We will be closely monitoring whether the governor chooses to sign Senate Bill 2907 and make the FBI NGI Rap Back Service available to Illinois employers.


Author: Ryan P. Farrell, Matt Marcellis

Monday, June 18th, 2018

Attorney General Issues Fifth PAC Opinion of 2018

In March 2018, the Office of the Attorney General published Public Access Opinion 18-005 which clarified the standard public bodies must meet when claiming certain employee information is exempt from disclosure under the Illinois Freedom of Information Act (FOIA). The opinion emphasizes that a 2010 amendment to the FOIA has replaced per se exemptions with a balancing test that requires a public body to weigh an employee’s right to privacy in information contained in public records against the public interest in obtaining such information. Furthermore, disclosure of information that bears on an employee’s public duties is not an invasion of privacy.

The AG published this opinion in response to a municipality (the “City”) denying a FOIA request in November 2017 for records of City employees’ wages and salaries. FOIA section 2.5 provides that “[a]ll records relating to the . . . use of public funds . . . are public records subject to inspection and copying by the public.” In denying the request, the City cited FOIA section 7(1)(c) which exempts from disclosure “[p]ersonal information contained within public records the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Section 7(1)(c), however, specifically states that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” In arguing that compensation information is personal in nature and has no bearing on public duties, the City cited Stern v. Wheaton-Warrenville Community Unit School District No. 150 and Copley Press, Inc. v. Board of Education for Peoria School District No. 150.

The AG points out, however, that both Stern and Copley Press involved Illinois courts interpreting a version of the personal privacy exemption that has since been amended. Under the prior statutory language, any records, including wage and salary information, that fell within any of the subsections enumerated in the exemption were per se exempt from disclosure. One of the subsections was personnel files, meaning that if wage and salary records were maintained in personnel files, it was exempt. Effective January 1, 2010, that section of FOIA was replaced with section 7(1)(c) which no longer permitted an exemption simply because a record was maintained in a personnel file, but required a public body to demonstrate that the employee’s “right to privacy outweighs any legitimate public interest in obtaining the information.”

Effectively, the General Assembly replaced per se exemptions with a balancing test. The four factors that administrative agencies and the court must balance are: “(1) the [requester’s] interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.” In the case addressed by the opinion, the AG found that the City clearly failed to meet its burden of demonstrating by clear and convincing evidence that the requested records were exempt.

The result is that public bodies face a high hurdle if they wish to exclude from FOIA requests records related to employees’ public duties.


David W. McArdle

Author: David McArdle, Matt Marcellis