Local Government Law Bulletin

Thursday, November 29th, 2018

Government Severance Pay Act Limits Severance Compensation to 20 Weeks and Prohibits Severance for Those Fired for Misconduct

Public Act 100-0895, which takes effect on January 1, 2019, limits the authority of non-home rule government employers to offer extensive contractual severance pay provisions to officers, agents, employees and contractors. The Act mandates that any severance provision in new or renewed government contracts or employment agreements may not exceed 20 weeks of compensation. The Act also mandates that any contract providing for severance pay must include a provision prohibiting severance pay if the officer, agent, employee, or contractor has been fired for misconduct as defined by the Act.

The Act defines “misconduct” in a way that includes:

  • Conscious disregard of the employer’s interests that include a deliberate violation or disregard of employer standards including but not limited to willful damage to the employer’s property or theft of employer or customer;
  • Carelessness or negligence sufficient to show culpability or wrongful intent or intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations;
  • Chronic absenteeism or tardiness in deliberate violation of a known policy, or one or more unapproved absences following a written reprimand;
  • Willful and deliberate violation of a State-regulated standard which would cause the state licensed or certified employer to be sanctioned or have its license or certification suspended;
  • Violation of a known, reasonable, and fairly and consistently enforced employer rule; and
  • Other serious misconduct such as committing criminal assault or battery on another employee, customer or invitee of the employer, or committing abuse or neglect of an individual in the employee’s professional care.

On initial review it might seem that any egregious or well documented violation, like those identified in this Act, would result in an uncontested termination without severance pay. Before terminating an employee, employers generally ensure that such a termination is based on well documented, performance-based issues. Many times, however, employees who were terminated for performance issues later sue their employer for such things as discrimination (for example: “I was terminated because I am a woman, or because of my age, or because of my religion”), when in fact the reason they were fired was because of their poor work performance, chronic absenteeism, abuse of sick leave, or for other performance based problems. When an employer has such a legitimate, non-discriminatory reason for terminating an employee, the employer should have a defense against such a discrimination lawsuit. However, to protect themselves from the risk and associated costs of defending against even an unwarranted discrimination lawsuit, employers frequently find it useful to offer a minimal severance package in exchange for a full release from the terminated employee.

The Government Severance Pay Act takes away the ability of a government employer to protect itself in this manner. That is because a government employer who terminates an employee for any of the legitimate performance reasons covered by the new Act cannot now offer the terminated employee any severance in exchange for an agreement not to sue. If the employer wishes to offer severance for any legitimate reason — such as to reduce the risk of a future lawsuit — then it cannot base that termination on the most common performance-related issues. This leaves employers in a difficult situation where, despite the fact that a severance and release agreement might reduce their costs, they no longer have that option available in the case of most performance-based terminations. Admittedly, this Act, reflects the public perception – and occasional reality – that severance agreements have been used to provide additional rewards to non-deserving or offending terminated employees. However, the Act may well have the unintended consequence of increasing government litigation costs for termination of employees.

Further muddying the waters is Public Act 100-1040 that was passed earlier in 2018 and went into effect on August 23. This Act applies to severance packages given to employees terminated in cases where there was a finding of sexual harassment or sexual discrimination. In those cases, the Act mandates publication disclosing specifics of the severance agreement including the amount of the payment and when the severance agreement was approved. Presumably, after Public Act 100-0895 goes into effect on January 1, 2019, the requirements of Public Act 100-1040 will essentially be moot. It should no longer be possible to give a severance package in cases where there has been a finding of sexual harassment or sexual discrimination since those would seem to be the sort of behavior for which severance pay will no longer be permitted.

With time, we will see if these Acts, intended to discourage the provision of severance pay to clearly offending employees, actually turn out to be useful tools to enable municipalities to refuse to provide such pay. Alternatively, they may become a problematic limitation on the ability of government employers to effectively terminate employees without challenge. In all events, however, local governments should remember these new requirements when negotiating new or renewed employment agreements, when negotiating severance agreements and when considering the discipline or termination of employees who may fall under the requirements of either of these Acts.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg, Kelly A. Cahill

Thursday, November 29th, 2018

New Law Allows Law Enforcement To Petition for Emergency Firearms Restraining Orders

Public Act 100-0607, the Firearms Restraining Order Act (the “Act”), goes into effect January 1, 2019 and allows law enforcement, or a family member, to petition the court to issue an emergency firearms restraining order against an individual who poses an “immediate and present danger to himself, herself or another.” If the court issues such an order, the court can order law enforcement to search for and seize any firearms reasonably believed to be in the individual’s possession.

The Act provides that a petitioner may request an emergency order by filing an affidavit or verified pleading in the circuit court in which the individual resides, if the individual poses an “immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” The petition must describe the type and location of any firearms the individual is believed to possess. Emergency orders are issued on an ex parte basis, meaning, without notice to the individual and the hearing for an ex parte order will be held the same day the petition is filed or the next day the court is in session.
If the emergency firearms restraining order is issued, it shall require that the individual:

  • “refrain from having in his or her custody or control, purchasing, possessing, or receiving additional firearms for the duration of the order; and
  • turn over to the local law enforcement agency any firearm, Firearm Owner’s Identification Card, or concealed carry license in his or her possession.”

To effectuate these terms, the court will issue a search warrant directing law enforcement to immediately seize the individual’s firearms. As part of the search warrant, the court may also direct law enforcement to search the individual’s residence or other places there is probable cause to believe he or she is likely to possess firearms.

After an ex parte emergency order is issued, the court is to schedule a full hearing no more than 14 days from the issuance of the emergency order to determine if a plenary 6-month firearms restraining order is appropriate. An ex parte order may be extended to exceed 14 days, to effectuate service of the order, if necessary to continue protection, or by agreement of the parties.

When petitioning for emergency and 6-month firearm restraining orders, if the individual is alleged to pose an immediate threat to an intimate partner, or if an intimate partner is alleged to be the target of a threat by the individual, the “petitioner shall make a good faith effort” to provide notice of the full hearing date to any and all intimate partners. If law enforcement is seeking the order, the notice must include referral to relevant domestic violence, stalking advocacy, or counseling services. Provision of this notice, or the inability to provide notice (with the reasons that attempted notice was unsuccessful) must be included in the affidavit or verified pleading.

Finally, the Act articulates a list of factors that the court must consider before issuing, renewing, or terminating a 6-month firearms restraining order, including but not limited to evidence of unlawful use or display of firearms, history of the use of physical force, prior felony arrests, substance abuse, recent or pattern of threats of violence, and violations of orders of protection.

Municipal Police Departments should be familiar with the requirements of this Act should such an emergency situation arise.

Jennifer J. Gibson

Author: Jennifer J. Gibson, Matt L. Marcellis

Tuesday, November 13th, 2018

Citations for Violations of the Illinois Vehicle Code No Longer Require Violator’s Signature

On January 1, 2019, Public Act 100-0674 which amends the Illinois Vehicle Code goes into effect. Pursuant to this amendment any person cited for violating the Code or a similar provision of a local ordinance for which the violation is a petty offense shall not be required to sign the citation. The amendment further states that Illinois Supreme Court Rules shall govern bail and appearance procedures when a person who is a resident of another state that is not a member of the Nonresident Violator Compact of 1977 is cited for violating the Code or a similar provision of a local ordinance. The only non-member states are Alaska, California, Michigan, Montana, Oregon and Wisconsin.

Municipal police departments should ensure their officers are aware that citations issued for violations of the Illinois Vehicle Code no longer need to be signed.

Author: Dave Noland, Matt Marcellis

Tuesday, November 13th, 2018

A Public Body May Not Discuss Duties of an Elected Official in Closed Session When It Cannot Remove that Official from Office

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-015 in which it stated its position that the 2(c)(1) exception of the Illinois Open Meetings Act (OMA) authorizing closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body” does not apply to elected officials. Furthermore, the 2(c)(3) exception of OMA authorizing closed session to discuss “the discipline, performance or removal of the occupant of a public office” only applies when the public body has the power under the law to remove the occupant of that office.

The PAC opinion arose from a request for review from the McClean County Auditor complaining that the Finance Committee of the McClean County Board improperly entered closed session during its June 6, 2018, meeting, citing the exception in 2(c)(1) of OMA, to discuss the duties and salaries of the county auditor and the county coroner.

First, the PAC determined that the holders of the elected public offices of county auditor and county coroner are not employees under the definitions of “public offices” and “employee” in section 2(d) of OMA. To reach this determination, the PAC noted that an individual cannot simultaneously be both a public officer and an employee of a public body. The offices in question were created under the Illinois Constitution of 1970, and the occupant of the offices hold some portion of the sovereign power of the State. They are therefore public officers. Furthermore, the PAC explained that neither does the county hold an employer-employee relationship with the county auditor and county coroner under common law. While the county may set the compensation for these county officers and determine the budgets of their offices, it may not direct and control their work nor may it terminate them based on their performance. Because the county auditor and county coroner are not employees, the 2(c)(1) exception does not apply to them.

Next, the PAC determined that neither does the 2(c)(3) exception apply to the public officers in question. The plain language of this exception allows for closed session to discuss the performance of county officials only if the public body has the authority to remove the officials under law or ordinance. The McClean County Board’s Finance Committee possessed no such authority.
Accordingly, the PAC ordered the release of the applicable closed session minutes and verbatim recording from the June 6 meeting.

This opinion serves as a reminder that closed sessions may only be used to discuss employment matters relating to specific individuals who are clearly employees of the public body in question. Closed session may not be used to discuss public officials the public body has no legal authority to remove from office.

David W. McArdle

Author: David McArdle, Matt Marcellis

Thursday, November 1st, 2018

PAC Opinion Underscores the Importance of Having a Factual, Articulable Basis for Denying a FOIA Request as Unduly Burdensome

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-013 which reiterated the elements of the test for undue burden laid out in section 3(g) of the Illinois Freedom of Information Act (FOIA).

This PAC opinion arose from a July 2018 FOIA request to the Office of the Governor from news outlet One Illinois seeking e-mails pertaining to nominations for appointment to any of thirteen specific boards, councils, and commissions and any of the Boards of Trustees for the State’s public Universities. The request also sought documents prepared by or in the possession of seven individuals pertaining to nominations for appointment to the organizations identified. The Governor’s Office replied that the request would be unduly burdensome pursuant to section 3(g) of FOIA and requested that One Illinois narrow its request.

One Illinois did narrow its request, but the Governor’s Office again denied the request as unduly burdensome as its initial search yielded 44,536 potentially responsive emails. Upon this second denial, One Illinois sent a request for review to the Public Access Bureau. After investigating the matter, the PAC issued an opinion which concluded that the Governor’s Office violated the requirements of FOIA and directed it to provide One Illinois with copies of the requested e-mails, subject to appropriate redaction.

As an initial matter, the PAC determined that the Governor’s Office’s initial search was not “a reasonable search tailored to the nature of a particular request” using search terms that are reasonably calculated to locate all responsive records. A subsequent search which contained the term “appoint,” was a more appropriate search criteria and identified only 1,783 potentially responsive emails.

Section 3(g) of FOIA provides: “Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.”

The Governor’s Office stated that compliance with Mr. Cox’s request would require it to review the e-mails identified in its search individually to determine responsiveness and whether any exemptions may apply. The Governor’s Office, however, did not provide a specific factual basis to support its claim that conducting such a review of the 1,783 potentially responsive emails would unduly burden the Governor’s Office’s operation.

Furthermore, the Governor’s Office did not demonstrate that the burden of reviewing and redacting the responsive e-mails would outweigh the significant public interest in the records. The e-mails concerned the appointment of individuals to State organizations that created and exerted influence over a wide range of public policies relating to the State’s receipt and use of public funds.

This opinion underscores the importance of the test for undue burden laid out in section 3(g) of FOIA. A public body seeking to deny a FOIA request must be prepared to demonstrate why compliance with the request would constitute an undue burden to that public body’s operations. Furthermore, the public body must also articulate why that burden outweighs the public interest in the requested records.

David W. McArdle

Author: David McArdle, Matt Marcellis

Tuesday, October 30th, 2018

The PAC Reiterates That Public Bodies May Only Discuss Specific Employees, Not a Class of Employees, in Closed Sessions

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-012 in which it repeated its position that the 2(c)(1) exception of the Illinois Open Meetings Act (OMA) authorizing closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body” applies only to discussions of specific employees. It does not authorize closed session to discuss matters concerning whole classes of employees or budgetary considerations.

The PAC opinion arose from a request for review from the President of Western Illinois University’s Chapter of the University Professionals complaining that the University’s Board of Trustees used a closed session to discuss layoffs generally and whole classes of employees rather than discussing a specific, individual employee as the Board had asserted. After review, the PAC found that although the Board discussed one individual employee’s contract during the closed session, most of the closed session discussion concerned budgetary matters and considerations applicable to whole categories of employees and not just this individual’s performance.

The PAC emphasized that discussions concerning categories of employees or budgetary discussions that do not center on the merits or conduct of specific employees or prospective employees are not authorized by the 2(c)(1) exemption. According to the PAC, the elimination of a job or position for non-performance reasons, even one held by only a single employee, would not fall within the scope of the 2(c)(1) exception.

Accordingly, the PAC ordered the release of that part of the closed session minutes and verbatim recording that related to budgetary matters and categories of employees, although it did not order the release of the portions concerning the specific employee’s contract.

This opinion serves as a reminder that during closed sessions to discuss a specific employee, it is important to resist the natural tendency to allow discussions of individual employees to slip into larger discussions of budgetary and staffing considerations. These larger issues are the sort that are expected to be conducted and discussed in open session without the protections provided by closed session for the discussion of individual employees.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Tuesday, October 2nd, 2018

FCC Issues Regulations Covering Small Cell Facilities on Public Rights of Way

On September 26 of this year, the Federal Communications Commission (the “FCC”) approved new regulations governing the installation of wireless and small cell facilities in public rights of way. According to the FCC, this is part of its ongoing effort to remove regulatory barriers inhibiting the deployment of 5G and other advanced wireless infrastructure. From a local government perspective, however, many have argued that these efforts essentially facilitate the rollout of new, private wireless provider infrastructure using public resources and in a manner that is, essentially, subsidized by public taxpayers.

As municipal users already know, the Illinois Small Wireless Facilities Deployment Act (Public Act 100-0585)(the “Act”) became effective June 1st of this year. That Act already preempted most local regulation and control of requests to install small cell wireless devices in municipal rights-of-way and in exclusively commercial and industrial districts. In response, municipalities around the state implemented new regulations consistent with that Act based, most often, on the model ordinance created by the Illinois Municipal League (the “IML”). That model ordinance included maximum permitted fees, time deadlines, and procedures for responding to permit requests to install small cell devices in public rights of way.

Analysts with the IML and other organizations are studying the new FCC Order to determine whether, or to what extent, it may be preemptive of the already restrictive Illinois Act, and whether, or to what extent, any of the recently passed Small Cell Ordinances will require modification to comply with the Federal Order. Initial review suggests that apart from shorter processing shot-clock times for small cell applicants, the FCC Order may not be dramatically more restrictive than the Illinois Act already is. The new FCC order will be effective 90 days after its publication date in the Federal Register (which, as of the date of this writing, had not yet happened). We anticipate that the IML and others will offer recommendations well before that effective date, so municipalities should have time to make changes, if any are required.

In the meantime, like the Illinois law, the FCC Order still leaves municipalities with some control over appearance standards for these new facilities. As small cell devices have been rolled out around the nation, there are more examples of devices that may be more or less appropriate for your municipality. Now is a good time to review your standards and to look at samples of deployments elsewhere to determine if you have reasonable and non-discriminatory appearance standards in place sufficient to protect your community’s appearance and the visual comfort of your residents.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Friday, September 28th, 2018

New Law Strengthens Employment Protections for Service Members

On August 26, 2018, Senate Bill 3547 became law. This public act creates the Service-Member Employment and Reemployment Rights Act (ISERRA) which seeks to clarify and strengthen existing laws designed to protect Illinois service members’ employment rights while they are fulfilling military requirements. The law also gives the Illinois Attorney General’s office the authority to file civil lawsuits to enforce ISERRA and requires her office to create the position of ISERRA Advocate to provide training and information to employers and service members.

Additionally, ISERRA limits the concurrent exercise of power by home rule units with regard to service member employment protections. Among the provisions of ISERRA are several items of particular significance to public sector employers. First, retroactive upgrades will now entitle a service member employee to back pay and other benefits attributable to the interval between discharge and retroactive upgrade. Additionally, during periods of military annual training, public employees shall continue to receive full compensation as a public employee for up to 30 days per calendar year, up from 15, and military leave for purposes of receiving concurrent compensation may be performed non-synchronously. Furthermore, concurrent compensation must be paid for active duty, but not for active duty without pay.

ISERRA also increases the limit for differential compensation for voluntary active military service from 40 days per calendar year to 60 days per calendar year. Furthermore, public employees who have exhausted concurrent compensation under ISERRA in a calendar year can now receive differential compensation for authorized military leave in the same calendar year. ISERRA also removes certain exceptions to provisions concerning additional benefits for public employee members of a reserve component, ensuring that employer-based health plan benefits will continue. Finally, a public employer’s share of the full premium and administrative costs for employer-based health plan benefits shall continue to be paid by the employer for active duty beyond 30 days.

Municipalities employing Active Reserve and National Guard members should ensure they fully understand their obligations and the employment rights these military members enjoy.

Kelly A. Cahill

Authors: Kelly A. Cahill, Matt Marcellis

Tuesday, September 18th, 2018

Law Expands Time to File Discrimination Complaint, Expedites Time To File Civil Lawsuit

Public Act 100-1066, which took effect on August 24, 2018, expands the time limit to file a discrimination complaint with the Illinois Department of Human Rights (IDHR), among other changes it makes to the department’s practices and procedures. As a result of the new law, the time limit to file a discrimination complaint has been increased from 180 days to 300 days.

In addition to this increase, the law also makes a number of additional changes to the IDHR’s practices and procedures. First, complainants will now be allowed to opt out of the IDHR investigation and immediately commence an action in court. This opt-out period begins at the time a charge is filed with the IDHR and runs for 60 days. Second, the IDHR will now have time limits to issue a notice of dismissal after a complainant notifies the IDHR of the issuance of a right-to-sue letter by the federal Equal Employment Opportunity Commission (EEOC). Next, the IDHR may now dismiss charges of discrimination if an action in court or another administrative agency would preclude claims in the IDHR charge. Finally, if such a dismissal is made, the IDHR must give notice to the complainant(s) and allow for a challenge to the dismissal to be made in front of the Human Rights Commission (HRC).

This law also makes two changes to the HRC’s practices and procedures. First, all commissioners must now be either practicing attorneys or have a minimum of four years of professional experience working with individuals or corporations that have contact with the Human Rights Act or similar laws. Second, the law creates time limits for administrative law judges and the HRC to issue and publish decisions.

Municipalities should be cognizant of the increased time employees now have to file a discrimination complaint with the IDHR.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

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