Local Government Law Bulletin

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

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