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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, December 9, 2019

FOIA Case Moot Because Records Provided to Requester


We don't see a lot of FOIA court cases - most of our guidance on FOIA comes from PAC opinions, both binding and advisory. Recently, however, an Illinois appellate court addressed a FOIA dispute in MAP v. City of Crystal Lake (unreported opinion).

In this case, the Metropolitan Alliance of Police (MAP) had filed a FOIA request with the City requesting attorney billing records and meeting minutes relating to a lawsuit involving the termination and subsequent reinstatement of police officers. The City provided the meeting minutes but denied the request for the attorney invoices and closed session meeting minutes. MAP filed a lawsuit challenging the City's denial of its FOIA request. While the lawsuit was ongoing, the City provided 136 pages of redacted attorney billing records to MAP. Both parties then filed motions for summary judgment. The circuit court ruled in favor of the City, and MAP appealed.

The appellate court did not rule on the merits of the FOIA request or response, instead finding the case moot because the City had already provided the requested records to MAP, which ended the dispute in this case. The appellate court also ruled that MAP forfeited any challenge to the City's redaction of the records or for the award of attorneys fees as a prevailing party because MAP failed to raise these issues in its motion for summary judgment. 

Thursday, December 5, 2019

Quorum Forum Podcast Episode 32: Holiday Special! New Laws for 2020


We have a new Quorum Forum Podcast episode for your listening pleasure: Quorum Forum Episode 32 - Holiday Special! New Laws for 2020


It's a Quorum Forum podcast holiday special! Ancel Glink attorneys are telling Santa what local governments need to know for the holidays and beyond. Christy Michaelson discusses maintaining city sidewalks, busy sidewalks, while Aaron Bitterman talks recent tort immunity cases. Finally, Mark Heinle reviews new laws affecting local governments and employers in the new year, on topics ranging from sexual harassment to the minimum wage. 

What do you think local governments need to know for the new year? Email us at podcast@ancelglink.com!

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Tuesday, December 3, 2019

Court Finds PSEBA Recipients Only Eligible For "Basic" Health Coverage


From Ancel Glink's labor and employment law blog The Workplace Report with Ancel Glink:



Last week the 3rd District Appellate Court affirmed the practice of a number of municipalities who limit their PSEBA recipients to only their “basic,” or lowest level, health insurance plan.

In Esser v. City of Peoria, the plaintiff, a former police officer, had suffered a catastrophic injury as defined under the Public Safety Employee Benefits Act (“PSEBA”). He received a duty disability and applied for and was ultimately found eligible for benefits under PSEBA, which states in pertinent part, that an employer is required to pay the entire premium amount for “basic” health coverage for public safety employees who qualify under the Act.

The City had two health insurance plans from which employees could choose – a low deductible, and more expensive plan, and a high deductible, less costly plan. Previous to the plaintiff’s injury and a subsequent application for benefits under the Act, the City had approved an ordinance identifying its high deductible health insurance plan as its “basic” plan for purposes of the Act.

After the plaintiff was determined to be eligible for benefits pursuant to the Act, the City sent him a letter, notifying him that he was eligible for the high deductible plan at no cost per the Act, or he could choose the low deductible plan and pay the difference in premium between the two. He filed suit for declaratory judgment, asking the court to determine that he was eligible for the low deductible plan pursuant to the Act.

The appeals court held that the language of the act clearly states that the City’s (and any public employer’s) obligation is to pay the entire premium amount for “basic” health insurance, not the health insurance of the employee’s choice, or the most expensive health insurance, or any plan with more favorable coverage as might become available. Also, the City had previously identified the high deductible plan as being the “basic” plan for the City, and the one that was available at no cost to PSEBA recipients. Rules of statutory interpretation, the court concluded, required that the plain meaning of the language applied and that the plaintiff would be eligible for the designated high deductible plan identified by the City as its “basic” plan.

Public employers who have not yet passed ordinances identifying their “basic” health insurance plan for PSEBA recipients should consider doing so now, consistent with the decision in this case. Additionally, public employers should note that PSEBA recipients are not automatically eligible at no cost for the most expensive health insurance plan, or even the plan that they were on previously. In fact, it appears that the court in Esser has confirmed the practice of switching PSEBA recipients to an employer’s “basic” plan once the employee is determined to be eligible for benefits.

Post Originally Authored by Margaret Kostopulos, Ancel Glink


 

Monday, December 2, 2019

New Government Employer Requirements


It's December, which means there's less than a month until the New Year and compliance with any new laws taking effective in 2020. We'll be reporting on a few of these over the next few weeks, starting with changes to employment laws that affect local government employers.

P.A. 101-0221 was signed by the Governor on August 9, 2019. The Act made numerous changes to various employment laws. We have summarized two of these changes that affect local governments below, both of which require affirmative action by July 1, 2020. 

Elected Official Allegations of Sexual Harassment Against Another Elected Official

The Act amended the State Officials and Employees Ethics Act to require local governments to adopt an ordinance or resolution to amend their sexual harassment policies to provide a mechanism for reporting and independent review of allegations of sexual harassment made by an elected official against another elected official. Local governments have six months from the effective date of the Act to amend their sexual harassment policies (so, the amendment should be adopted by July 1, 2020). 

Employer Disclosure of Adverse Harassment or Discrimination Judgments or Rulings

The Act establishes new reporting disclosure requirements for employers. Government employers are expressly included in this statute. Beginning July 1, 2020, and annually thereafter, an employer that has had an adverse judgment or administrative ruling in the previous calendar year must disclose the following to the Department of Human Rights:
  1. the total number of adverse judgments or administrative rulings during the previous year;
  2. whether any equitable relief was ordered against the employer in that judgment or ruling;
  3. how many judgments or rulings fall into the following categories: (a) sexual harassment; (b) discrimination or harassment on the basis of sex; (c) discrimination or harassment on the basis of race, color, or national origin; (d) discrimination or harassment on the basis of religion; (e) discrimination or harassment on the basis of age; (f) discrimination or harassment on the basis of disability; (g) discrimination or harassment on the basis of military status or unfavorable discharge;  (h) discrimination or harassment on the basis of gender identity; (i) discrimination or harassment on the basis of any other characteristic protected under the Act.
If DHS is investigating a charge, it can also request information about settlements that relate to any category listed above. 

The disclosures should not include the victim's name, and any annual reporting by DHS based on the information provided by employers will not disclose individual employers' reports.


Tuesday, November 26, 2019

PAC Finds No FOIA Violation Where Internet Logs Do Not Exist


In a recent advisory (non-binding) PAC opinion, the Public Access Counselor of the Attorney General's office found in favor of a public body in a FOIA dispute involving a request for "internet logs." 2019 PAC 58425

A requester had filed a FOIA request asking a township to provide copies of "internet activity logs" of the supervisor and board of trustees. After the township responded that it had no responsive records, the requester filed a request for review with the PAC. The township responded that it had contacted its IT consultant to search the township's computer system and found no responsive records for the requested time-frame. The township explained that the township's network deletes all internet history records on a daily basis, so no records existed. The requester claimed that the township was obligated to retain and maintain browsing history information.

The PAC first noted that the PAC's authority is limited to alleged violations of FOIA and OMA, and does not extend to allegations of violations of records retention laws such as the Local Records Act. Here, the township conducted a reasonable search for the requested records, and there was no evidence that the records existed at the time of the search. As a result, the PAC found no violation of FOIA.

Disclaimer: Ancel Glink represents the township in this case

Monday, November 25, 2019

Court Awards Cable Franchise Fees to Village over County



In Village of Campton Hills v. Comcast, the Illinois Appellate Court clarified the application of Section 5-1095 of the Counties Code and awarded five-year’s worth of franchise fees to the Village.

The facts in this case occurred over a long period of time. Originally, the County and Comcast approved a cable franchise in 1988 that had a 15 year term. The franchise agreement covered unincorporated territory which included an area that later came within the boundaries of the Village. Once the original term expired, the County adopted a series of one year resolutions designed to extend the term of the franchise. In 2007, the Village was incorporated by referendum. The Village and Comcast subsequently approved a new cable franchise agreement that became effective January 1, 2008. Despite the new Village franchise agreement, Comcast continued to pay franchise fees to the County. As a result, the Village sued Comcast demanding payment of the franchise fees. Comcast added the County to the case and asked the Court to declare the parties’ rights.

Section 5-1095(a) of the Counties Code provides in relevant part: 
(a) The County Board may license, tax or franchise the business of operating a community antenna television system or systems within the County and outside of a municipality, as defined in Section 1-1-2 of the Illinois Municipal Code.
When an area is annexed to a municipality, the annexing municipality shall thereby become the franchising authority with respect to that portion of any community antenna television system that, immediately before annexation, had provided cable television services within the annexed area under a franchise granted by the county, and the owner of that community antenna television system shall thereby be authorized to provide cable television services within the annexed area under the terms and provisions of the existing franchise.  In that instance, the franchise shall remain in effect until, by its terms, it expires, except that any franchise fees payable under the franchise shall be payable only to the county for a period of 5 years or until, by its terms, the franchise expires, whichever occurs first.  After the 5 year period, any franchise fees payable under the franchise shall be paid to the annexing municipality.  
The trial court ruled in favor of the Village and granted the franchise fees to the Village. The Appellate Court affirmed, explaining as follows:
the first sentence of section 5-1095(a) granted the County the authority to franchise and tax Comcast but limited that authority to areas 'within the County and outside of a municipality.' . . . In November 2007, the County’s franchise (extended by resolution) expired. The County’s attempt to pass an extension in December 2007 was after the prior extension’s expiration and was ineffective as to property within the Village. Therefore, when the Village passed its Comcast franchise ordinance, effective January 1, 2008, it was the only effective franchising authority and the only entity entitled to collect fees from that time forward.
The Appellate Court also stated that:
in April 2007, a part of the County’s [franchise] area was incorporated as the Village. Thus, pursuant to “law,” section 5-1095(a) of the Counties Code, that part of the area was no longer subject to the County’s franchise agreement.  However, the incorporation of the Village did not impact the County’s franchise agreement with respect to the parts of the County that remained unincorporated. Thus, the trial court did not improperly modify the County’s franchise agreement with Comcast; rather, it ruled in conformity with the contract and the law.
As a result, the Court decided that the Village was entitled to all of the franchise fees related to cable subscribers within its jurisdiction from 2008 through 2012, the disputed five year period. In addition, the Court found that the County is required to reimburse Comcast for all of the wrongfully paid franchise fees during that time. The Court did not address the issue the Village raised as to whether incorporation and annexation are the same for interpretation purposes, finding it unnecessary to decide based on its ruling in favor of the Village.

Post Authored by Adam Simon, Ancel Glink

Disclaimer:  Ancel Glink represented the Village in this case.


Friday, November 22, 2019

State of Illinois Commission to Study Ethics Laws


Yesterday we reported on a bill that would modify the state ethics statutes. The General Assembly also passed HRJ 93 to create a joint commission of the Illinois house and senate to review and make additional recommendations for changes to various state ethics statutes, including the State Officials and Employees Ethics Act, the Illinois Governmental Ethics Act, the Lobbyist Registration Act, and the Public Officers Prohibited Political Activities Act. Because many of these state statutes also apply to local government officials and employees, this commission and its findings will be of great interest to local governments.

It is interesting to note that although the commission includes a wide range of state officials (see below), the commission includes no local government representation even though most of these statutes also apply to local government officials and employees. It would be reasonable for the Governor to consider appointing local government representatives as his Governor-appointees to provide a local government perspective to such an important study.

Membership of the commission is as follows:
  • 2 members of the GA appointed by the Speaker of the House
  • 2 members of the GA appointed by the Senate President
  • 2 members of the GA appointed by the House Minority Leader
  • 2 members of the GA appointed by the Senate Minority Leader
  • 2 members from the Attorney General's office appointed by the AG
  • 2 members of the Secretary of State's office appointed by the SOS
  • 4 members appointed by the Governor

Thursday, November 21, 2019

Bill Would Modify Local Government Ethics Reporting Deadline


Illinois SB 730 was just passed by the General Assembly and is now at the Governor's office awaiting signature. The bill proposes a number of changes to the Illinois Governmental Ethics Act, including one that would impact units of local government. If signed, the bill would establish a set date each year (on or before February 1st) by which the chief administrative officer of a unit of local government must file with the county clerk the names of those officers and employees who must file statements of economic interest with the local government unit on an annual basis.

Wednesday, November 20, 2019

Local Governments Prepare Responses to Cannabis Trailer Bill




During last week’s veto session, the General Assembly approved a “trailer bill” making technical and other changes to the legislation passed earlier this year authorizing recreational cannabis in Illinois. While the trailer bill still awaits the Governor’s signature as of this writing, local governments should start thinking about how the bill may affect their responses to recreational cannabis.

Cannabis Businesses Regulations

On-Premises Consumption

The trailer bill clarifies that municipalities may authorize on-premises consumption at a cannabis dispensary or at a “retail tobacco store” as defined in the Smoke Free Illinois Act. Many cigar lounges and hookah lounges are considered “retail tobacco stores.” The amendment ends speculation about whether a municipality could authorize on-premises cannabis consumption at a typical bar or restaurant and confirms that only authorized dispensaries and retail tobacco stores can have on-premises consumption. Importantly, the amendment would not change the authority of municipalities to prohibit or strictly regulate on-premises cannabis consumption.

Cannabis Business Definitions

The trailer bill also adds “infusers” to the definition of “cannabis business establishments,” confirming that local governments can adopt ordinances governing time, place, manner, and number of cannabis infusers, in addition to other cannabis business establishments.

Cannabis Taxes

Dispensary Sales Tax

From the tax perspective, the trailer bill would allow municipalities and counties to file their certified cannabis sales tax ordinances with the Department of Revenue on or before:

April 1 for enforcement beginning July 1; or
October 1 for enforcement beginning January 1.

Under the original law, enforcement of local cannabis sales taxes would not have started until September 1, 2020 at the earliest. While the trailer bill advances the start of local cannabis sales taxes, tax enforcement still does not coincide with the start of authorized cannabis sales on January 1, 2020.

Home Rule and Non-Home Rule Sales Tax

While food for off-premises consumption is typically subject to a lower one percent sales tax, the trailer bill confirms that “food consisting of or infused with adult use cannabis” would be subject to the ordinary home rule or non-home rule sales tax rate.

Local Enforcement Ordinances

Local governments may want to review their ordinances to ensure consistency with the state’s new cannabis laws, and to enforce appropriate cannabis laws locally through adjudications or circuit court. The trailer bill addresses a few issues local governments should consider for their own ordinances.

Cannabis Paraphernalia

Under the trailer bill, adults will be able to possess and use cannabis paraphernalia, in addition to cannabis for personal use, beginning January 1, 2020. Some municipalities have locally adopted provisions of the “Drug Paraphernalia Act” prohibiting most drug paraphernalia possession, and the trailer bill amends the Act to exclude “cannabis paraphernalia” from the definition of “drug paraphernalia.” If this legislation is approved, local governments should make sure their drug paraphernalia ordinances are consistent with state law.

Cannabis Use Prohibited in Parks

Using cannabis in any public place is prohibited, except in a dispensary or retail tobacco store authorized by a local government. “Public place” means any place where a person could reasonably be expected to be observed by others, including all parts of local government buildings. The trailer bill includes amendments explicitly making all local government parks, recreation areas, wildlife areas, or playgrounds a “public place” where cannabis use is prohibited.

Advertising

State law restricts cannabis business advertising, including advertising near schools, playgrounds, and other listed sensitive places. However, the trailer bill confirms that “advertising” does not include the display of exterior signage displaying only the name of the licensed cannabis business.

Automatic Expungements

The trailer bill does not change the schedule for law enforcement agencies to automatically expunge records for certain minor cannabis possession offenses. The first deadline of January 1, 2021 requires expungement of records created on or after January 1, 2013 and prior to June 25, 2019.

The trailer bill does confirm that, in response to an inquiry for expunged records, the law enforcement agency should reply as it does in response to inquiries when no records ever existed; however, the agency must provide a certificate of disposition or confirmation that the record was expunged to the individual whose record was expunged if such a record exists.

Employment Policies

Public Safety Employees

The Cannabis Regulation and Tax Act does not authorize law enforcement officers, corrections officers, probation officers, or firefighters to use cannabis while on duty. The Right to Privacy in the Workplace Act prohibits discrimination against all employees for the use of “lawful products,” including cannabis, during non-working and non-call hours. Employees can be awarded actual damages, costs, and attorney’s fees for willful and knowing Right to Privacy Act violations.

The trailer bill would amend the Cannabis Act to state that “nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer's policies.” While nothing in the Cannabis Act prevents a public employer from disciplining the listed public safety employees for off-duty cannabis use, the trailer bill would not change the protections provided in the Right to Privacy Act.

Arguably, the General Assembly did not intend to adopt the trailer bill language only to have it rendered meaningless by the Right to Privacy Act. However, public employers should consult their attorneys before adopting policies that discipline the listed public safety employees for use of cannabis during non-call and non-working hours due to potential liability under the Right to Privacy Act.

In addition, the trailer bill would prohibit discipline for the listed public safety employees based solely on the lawful possession or consumption of cannabis by members of the employee’s household. The bill would also confirm that the Cannabis Act does not limit the right to collectively bargain the subject matters contained in the Cannabis Act.

Random Drug Testing

If passed, the trailer bill would provide that the Cannabis Act will not create or imply a cause of action against an employer based on its reasonable workplace drug policies, including:

subjecting employees or applicants to reasonable drug and alcohol testing;

reasonable and nondiscriminatory random drug testing; and

discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.

This most-recent proposed legislation will hardly be the last word on cannabis, so stay tuned to Ancel Glink’s Municipal Minute and Workplace Report blogs as courts and the General Assembly continue to develop the state’s new cannabis laws. 

Authored by Daniel J. Bolin and the Ancel Glink Cannabis Response Team

Tuesday, November 19, 2019

IDOR Issues Draft Rules on Parking Excise Tax


Last week, we reported on draft legislation to amend the new parking excise tax statute that would make it clear that municipalities and other units of government are exempt from the excise tax - an issue that many local governments had raised since the initial legislation was enacted. Unfortunately, the legislative "fix" has not yet been enacted and it's getting closer and closer to the January 1st effective date of the parking tax. 

Last Friday, the Illinois Department of Revenue issued draft rules on implementation of the parking excise tax that may address some local government concerns.

The IDOR issued a Notice of Proposed Rules that included draft rules relating to implementation of the parking excise tax.  You can read the rules here. The important language for local governments is contained on page 13243 of the draft rules, which states as follows:
Any person, except the federal government, the State, municipalities, counties, and special districts, who engages in the business of operating a parking area or garage for consideration, or who, directly or through an agreement or arrangement with another party, collects the consideration for parking or storage of motor vehicles, recreational vehicles, or other self-propelled vehicles, at that parking palace, must collect and remit the tax imposed on the purchaser of the parking space. If the federal government, the State, municipalities, counties or special districts enter into an agreement with a third-party to operate the parking area or garage, the third-party must collect and remit the tax. Persons that operate 3 or fewer parking spaces are exempt from collecting the tax.
As you can see, the language of the "exemption" in the IDOR's draft rules is different than the exemption contained in the draft legislative "fix." In the draft rules, municipalities are exempt from the parking tax regardless of the amount of the parking fee imposed, where the legislative fix would only exempt parking fees that were at or below the legislative threshold. And in the draft rules, the tax would apply to municipal parking areas or garages where the municipality has an agreement with a third-party to operate the parking area or garage. The draft rules include an example that might assist municipalities trying to understand the scope of the "third party" operator agreement "exemption from the exemption" - see below:
EXAMPLE 5: A municipality owns and operates a parking area. It retains a company to install machines on the lot that accept electronic payments. The company also provides a mobile application that permits a person to pay for parking electronically. All payments made by a customer either by using the machine on the lot or the mobile application are paid to the municipality. The municipality pays the company a fee for its services. The municipality is the operator of the lot and, pursuant to Section 195.115(b), is not required to collect and remit the tax.
It remains to be seen how the two different exemption schemes can be reconciled but as we've said before, we will keep you posted.

Monday, November 18, 2019

PAC Provides Guidance on "General Subject Matter" for Agenda Items


The PAC issued its 12th binding opinion last week finding a municipality in violation of OMA for not identifying the general subject matter of an ordinance that was voted on at a city council meeting agenda. PAC Op. 19-012.

A complaint was filed with the PAC after an August 20, 2019 city council meeting where the council voted on an ordinance that increased permit application fees. The complainant argued that the agenda was not sufficiently descriptive to provide the public with advance notice of the general subject matter of the ordinance to be voted on, as required by section 2.02(c), which requires as follows:
Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting. 5 ILCS 120/2.02(c).
The PAC reviewed the city council's meeting agenda for the August 20th meeting, including the questioned agenda item. The agenda stated as follows for the ordinance in question:
d.  Consider and act on Ordinance 19-11 to Amend Section 33-4-4(F) 
The PAC analyzed the OMA requirement of "general subject matter," acknowledging that the OMA does not define that phrase and that there is no commonly understood meaning for the phrase. Finding the phrase ambiguous, the PAC reviewed the statute's legislative history, finding that one senator stated that the provision was intended to allow people who follow their units of local government to "know what they're going to be acting upon." 

The city argued that the item was descriptive enough because the public could consult the section that was proposed to be amended to determine the general nature of the matters. The PAC disagreed, finding that it wasn't clear that the section reference was to the city code, and in any event, the agenda itself needs to identify the general subject matter without the public having to decipher it themselves. As a result, the PAC determined that the agenda was not sufficiently descriptive under the OMA. 

It is worth pointing out that the PAC reviewed other items on the agenda and acknowledged that these other items did identify the subject matter of the item to be voted on. These included:
a. Consider and act on Resolution 19-07 Closed Session Minutes
b. Consider and act on Resolution 19-08 Authorizing the Destruction of Closed Meetings Sessions audio recording.
c. Consider and act on Resolution 19-06 Council Resolution of Support for CBD Grant
Based on this opinion, the city council could have added "....of the City Code regarding permit application fees" to the end of agenda item (d) and that would appear to satisfy the PAC's interpretation of 2.02(c)'s requirement that the item set forth the general subject matter of the resolution or ordinance. The PAC specifically noted that the amount of the increase in fees did not need to be identified on the agenda.

This opinion could provide valuable guidance to public bodies on what "general subject matter" means when describing agenda items. Simply stating that an ordinance is amending a particular section is not enough without identifying what is being amended and a brief description of the subject matter of the amendment.



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.