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Friday, November 15, 2019

Bill Would Restrict Local Authority Over Fence Alarms

A number of new bills are being introduced in the Illinois General Assembly, including some intended to address major pieces of legislation passed earlier this year, including the recreational cannabis law and the leveling the playing field statute that imposed numerous new taxes on Illinois residents. We will report on those as they move forward. Other bills with less public profile are also being introduced, including one that would affect municipal authority. 

If passed, SB 2308 would prohibit municipalities and counties from requiring a permit for the installation of a battery-charged fence alarm or from imposing any installation or operational requirements on these alarms. It also restricts municipal and county authority to prohibit the installation or use of a battery-charged fence. The bill preempts home rule authority. 

This is a pretty specific bill, and it was probably introduced to address a particular situation in one community. However, once it is enacted, it would restrict the authority of all municipalities and counties.

Thursday, November 14, 2019

Bill Would Exempt Most Government Parking Lots From Parking Excise Tax

You will recall that we reported previously (here and here) on the new state legislation that imposed a parking excise tax on parking garages and lots. That tax would range between 6% and 9%, depending on the parking fee. We raised a question as to whether the tax would apply to municipally-owned and operated commuter lots and garages. In our opinion, the language of the statute was not broad enough to apply to lots and garages operated by government entities. However, there appeared to be some confusion about that at the state level and municipalities were receiving mixed-messages about the application of the tax. The Illinois Municipal League had suggested to Illinois legislators that an statutory amendment was necessary to ensure that municipal lots and garages were not covered by the tax. 

The Illinois House just introduced HB3968 that would add a provision to address government parking lots and garages. If passed, parking lots or garages that are owned or operated by the federal government, state, municipality, RTA, Chicago park district, or any other government entity would be exempt from the tax if the parking fee does not exceed $3 for a 24 hour period or less, $15 for a weekly period, or $60 for a monthly period. It also exempts parking when the fee is paid by a federal, state, or local government entity.

This legislation will add certainty to this issue as municipalities have been receiving mixed messages as to whether the parking tax must be imposed and collected on commuters and others who use municipal parking lots and garages. 

Tuesday, November 12, 2019

Local Government Law Institute on December 4th

Calling all local government attorneys!  In less than a month, IICLE® will be hosting the 7th Annual Local Government Law Institute on Wednesday, December 4th at the One North Wacker Conference Center (UBS Tower) in Chicago. A Springfield Simulcast and Live Webcast will also be offered.

Learn about hot topics in local government law, including legalized cannabis, risk assessment, #me too, cyber-security, eminent domain, and housing. The program also includes a panel discussion featuring the Public Access Counselor's staff. The faculty will discuss legal issues relating to government use of social media. Ancel Glink's very own Julie Tappendorf and Kurt Asprooth will be speaking at the program. 

This program will offer 7 hours of MCLE credit, including 2 hours of Professional Responsibility credit. Included with your tuition, you can earn an additional hour of credit by watching IICLE's bonus e-learn session about affirmative litigation. 

View the program e-brochure here: or register here or by calling 1-800-252-8062.  

I hope to see you on December 4th!

Monday, November 11, 2019

FAQ on Employment-Related Issues with Adult Use of Cannabis

We have been getting a number of questions from our local government clients about employment-related issues with the upcoming legalization of cannabis in Illinois. The Workplace Report with Ancel Glink (our sister blog on labor and employment issues) recently posted a very helpful "FAQ"  on this very issue, answering a number of these questions. You can read the blog post on that blog here or below. Don't forget to visit The Workplace Report with Ancel Glink and subscribe!

The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1, 2020:

Can we still have a zero-tolerance employee drug policy?

Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work.

Should we still test for cannabis during post-employment drug and alcohol screens?

Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their system of evidence of cannabis use. This is long after the effects of cannabis have dissipated. Unlike alcohol, which people generally metabolize quickly, positive tests for cannabis use are highly unreliable in determining whether an employee is under the influence of cannabis while at work. While nothing prohibits an employer from testing for cannabis use as part of a post-employment drug screen, disciplining an employee solely on the basis of a positive test result for cannabis likely violates the Right to Privacy in the Workplace Act which prohibits any adverse employment action against an employee for their off-duty legal activities. Just as an employer cannot discipline an employee for having an alcoholic beverage off duty or smoking cigarettes or any other behavior that the employer may prohibit on duty, an employee who uses cannabis recreationally and consistent with the statute while off duty cannot be disciplined for such use.

A positive test for cannabis can be used as additional evidence of being under the influence while at work only as secondary or confirmatory evidence when the employer has established reasonable suspicion of such use. If an employer has reason to suspect that an employee is impaired by cannabis while working, management should clearly document all of the observed objective factors that support this suspicion. The law provides some guidance with regard to reasonable suspicion of cannabis impairment. Symptoms of impairment may include speech issues, problems with physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in the operation of machinery or equipment, an apparent disregard for the employee’s own safety or that of other employees, involvement in an accident or damage to the employer’s property, disruption of the workplace or negligent conduct that results in an injury to another employee. Unfortunately, many of these statutory factors may indicate other issues, such as a stroke or other physical impairment. Well documented symptoms of impairment by trained supervisors and managers are currently the strongest “test” for being under the influence of cannabis, which can be strengthened by a positive test result for the same.

So, employers can never use a positive test result for cannabis as the basis for discipline against employees?

No. Employees who must possess a CDL, certain law enforcement and employees who operate under federal grants can still be disciplined for cannabis use because cannabis is still illegal under federal law. Additionally, in Illinois, even after January 1, 2020, recreational cannabis use is still illegal for individuals under the age of 21. Employees under that age may still be disciplined solely on the basis of a positive cannabis test result.

Can we still include cannabis among the drugs tested in random drug tests?

Employers should no longer test for cannabis use as part of random drug testing except for CDL required positions, certain law enforcement personnel and those under 21 years of age, with the caveat for lawful medical cannabis use. Additionally, pre-employment drug screens should no longer include tests for cannabis as it will be a “lawful product” after January 1st.

How does the legalization of recreational cannabis affect our ability or need to regulate the use of medical cannabis?

The use of cannabis for lawful medical purposes has been the exception from discipline for qualifying individuals while cannabis is still an illegal drug for recreational use. After January 1st, employers will no longer need a medical cannabis caveat in their policies except for employees who are still prohibited from its use under federal law.

Do employers need to update their drug and alcohol policies?

Possibly. Since policies vary, it is important to review and when necessary, revise workplace drug and alcohol policies. Equally as important, is the need to revise employment practices in the workplace. Training or retraining supervisors and managers on reasonable suspicion indicators and updating forms that document such is essential. The strength of an employer’s disciplinary decision rests on how knowledgeable and thorough the process of determining reasonable suspicion is. Eliminating cannabis testing in pre-employment and random testing, except for DOT, some law enforcement and federally controlled positions will prevent allegations of violation of the Right to Privacy in the Workplace Act for adverse actions resulting from use of a lawful product while off duty.

Original post authored by Margaret Kostopulos, Ancel Glink

Thursday, November 7, 2019

Quorum Forum Podcast: Closed Session for Litigation

A new Quorum Forum Podcast Episode has just been released! 

In Episode 31: Closed Session for Litigation, Ancel Glink attorneys meet at the dog park to preview the 2019 Illinois Association of Park Districts Legal Symposium and significant court decisions affecting your district’s day-to-day operations. Later, we adjourn to closed session to talk about what  all units of local government should know about the Open Meetings Act exception for discussing litigation. 

What questions do you have about discussing litigation in closed session? Email us at podcast@ancelglink.com!

Wednesday, November 6, 2019

U.S. Supreme Court Declines to Hear Food Truck Case

We previously reported on a case that made its way to the Illinois Supreme Court involving a challenge to the City of Chicago's food truck ordinance. As we reported in the past, the operator of a cupcake food truck had challenged the ordinance on various grounds, including that the ordinance treated food trucks less favorably than traditional restaurants by prohibiting food trucks from locating within 200 feet of a brick and mortar restaurant with limited exceptions. The trial and appellate courts had rejected the food truck's claims, and the Illinois Supreme Court also upheld the City's ordinance. 

The food truck operator then filed a "writ of certiorari" with the U.S. Supreme Court asking that Court to take on the case. Just this week, the U.S. Supreme Court affirmatively declined to take the case, meaning that the Illinois Supreme Court's ruling in favor of the City of Chicago and upholding the City's ordinance will stand.

Tuesday, November 5, 2019

Sharing Meme Creates Controversy at Work

In yet another installment in a never-ending saga of "be careful what you post on social media," a 23-year old employee of a stone company claims he was fired after posting the following meme on his Facebook page:

As you can see from one of the comments and then the employee's response, the employee seemed surprised that the posting might create an issue with his job as in his view, he simply "shared a funny meme" while off-duty. But, as we have seen through other examples of similar social media postings, not all personal social media activities are protected, and the consequences of one "funny meme" can be pretty significant. 

The employer responded to the initial news story about this incident to contradict the employee's claim that he was fired for his social media activities. According to the employer, the employee was not fired for posting the meme, and in fact worked for two days after the posting before walking off the job. Now that the employee has retained an attorney, we may have to wait for a court decision to see which story carries more weight.   

Monday, November 4, 2019

PAC Issues 2 Binding FOIA Opinions

Last week, the Public Access Counselor of the Attorney General's office issued two new binding FOIA opinions. 

In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city had released other records relating to the incident, but withheld the body camera recordings, citing the Law Enforcement Officer-Worn Body Camera Act and the FOIA exemptions that protect records when there is an open criminal investigation. The county states attorney also supported the city's withholding of the recordings.

The PAC reviewed the city's denial and cited exemptions and rejected its argument that the recordings were exempt. Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act, and ordered release of the recording.

In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review. 

Friday, November 1, 2019

Parking Excise Tax Update

You may recall that we reported on a new excise tax enacted by the Illinois General Assembly that would impose a state tax on the use of parking facilities. As we noted in our post, the Act applies to any "person" who operates a parking area or parking garage as defined by the Act. The definition of person does not reference municipalities or other units of local government, so it seemed that the tax would  not apply to municipal parking garages and lots. As we noted in our previous report, we reached out to various state agencies and organizations to get more clarification on this interpretation. Unfortunately, we received inconsistent messaging on our interpretation. 

We wanted to update you, however, because we recently learned that the Illinois Municipal League is urging the General Assembly to amend the Act prior to it taking effect in January to expressly exempt municipal-owned parking facilities. Although we have not yet seen draft legislation, we hope this does, in fact, move forward soon. We are also waiting to see the rules that the Illinois Department of Revenue have been working on to implement this new tax.

As noted before, we will keep you updated as we learn more about this tax and any changes.

Thursday, October 31, 2019

Illinois Legislature to Consider Downstate Police & Fire Pension Fund Consolidation

On October 29, 2019, legislation was filed (Senate Bill 616, Senate Amd. #1) to implement the consolidation of the Downstate Police and Fire Pension Funds created by Articles 3 and 4 of the Pension Code. While this is only the initial draft of the legislation, the most meaningful takeaways from the bill are summarized below. In reviewing the changes, it is important to recognize that this bill is designed only to convert the local pension investment model into one more similar to IMRF.  As a result, there are certain compromises that make this only a half-step towards true pension reform.

1.  Local pension boards are not dissolved.  The bill does not eliminate the role of local pension boards in reviewing applications for pension benefits. The bill only takes away the investment authority from local pension boards and delegates it to one statewide pension board each for police and fire. 

2.  Consolidation will not occur overnight. The bill introduces a transition period during which the statewide pension boards will audit and verify each participating funds assets and take over custody and investment authority.  The transition period is intended to last no longer than 30 months from the effective date of the legislation.  During the transition period, municipalities may continue to establish actuarial assumptions which are not inconsistent with the Pension Code.  Likewise, the funding calculations based on those assumptions remain in local control.

3.  Municipalities will lose the ability to establish actuarial assumptions and independently set the actuarially required contribution.  Once the transition period concludes and the statewide board has custody over all pension assets, actuarial statements shall be prepared by or under the supervision of a qualified actuary retained by the statewide fund, and if a change occurs in an actuarial or investment assumption that increases or decreases the actuarially required contribution for the pension fund, that change shall be implemented in equal annual amounts over the 3-year period beginning in the fiscal year of the pension fund in which such change first occurs. The actuarially required contribution established by the statewide fund shall determine the annual required employer contribution, notwithstanding any formula or other language in Article 3 or Article 4 of the Pension Code to the contrary.  This change will result in mandatory pension contributions in the same manner IMRF creates mandatory employer contributions for the benefit of non-sworn employees. 

4.  Each municipality will have a separate pension account.  Some well-funded pension boards have expressed concern that the consolidation of pension funds for investment purposes will dilute their strong position. Fortunately, the bill addresses this problem directly. Each statewide board is directed to, “separately calculate account balances for each participating pension fund. The operations and financial condition of each participating pension fund account shall not affect the account balance of any other participating pension fund. Further, investment returns earned by the Fund shall be allocated and distributed pro rata among each participating pension fund account in accordance with the value of the pension fund assets attributable to each fund.” Based on this language, a fund's unfunded liabilities should not change simply because of the consolidation of investment authority. 

5.  Tier 2 benefits are adjusted.  The determination of final average salary and the calculation of survivor benefits for police and fire employees in Tier 2 (hired after 1/1/11) will be adjusted to address concerns that the current model may fail to qualify for an exemption from social security taxes.

Post by Adam Simon, Ancel Glink

Wednesday, October 23, 2019

PAC Finds Private Company Reports Not Proprietary Under FOIA

In the recent PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. 

The FOIA request came in response to a city ordinance requiring all manganese-bearing materials operators provide the city with quarterly reports concerning the amount of material being handled at their facilities. The city refused to hand over the manganese reports of the private entity, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information.

The PAC rejected the city’s argument that the disclosure of the manganese reports was proprietary and confidential, stating that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

Post Authored by Rain Montero & Julie Tappendorf

Thursday, October 17, 2019

Federal Court Upholds On-Site Drug Use at Safehouse

In a decision that could be of interest to municipalities seeking to combat the growing drug epidemic, a federal court in Pennsylvania recently ruled that safehouses do not violate the Controlled Substances Act when they provide facilities where drugs are used under monitored, sterile conditions. U.S. v. Safehouse.

Safehouse, a nonprofit directed at fighting drug addiction and overdose, sought to open an “Overdose Prevention Site” to offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. Specifically, the Safehouse facility plans to offer medication-assisted treatment, medical care, referrals to a variety of other services, and the use of medically supervised consumption and observation rooms. Drug users who choose to use the medically supervised consumption room will have access to sterilized consumption equipment and fentanyl test strips. Safehouse staff members  supervise the participants’ consumption and are ready to intervene with reversal agents to prevent fatal overdose. Safehouse staff does not, however, handle or provide any of the drugs to the participants.

After Safehouse announced its plans, the federal government filed a lawsuit claiming that the on-site consumption of illegal drugs at Safehouse’s facility violated the Controlled Substances Act, which prohibits any property owner from maintaining a place that facilitates the use of a controlled substance. On October 2, 2019, a federal judge ruled in favor of Safehouse and rejected the government’s contentions. In that ruling, the judge stated that the “the ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it.” The judge reasoned that the stated purpose for Safehouse’s facility was to administer medical care and encourage drug treatment by connecting drug users with social services, and that none of these purposes are consistent with a criminal intent to facilitate drug use.

Post Authored by Rain Montero & Julie Tappendorf