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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

Thursday, April 9, 2020

PAC Finds No OMA Violation for Allowing Public Comment by Email


Earlier this week, we posted about a non-binding PAC opinion that upheld a meeting of a public body that was held remotely in accordance with the Governor's Executive Order authorizing remote meeting participating during the COVID-19 pandemic. A couple of readers (thank you!) forwarded another non-binding PAC opinion that deals with remote meetings held during the pandemic.

In 2020 PAC 62329, a complainant filed a request for review with the PAC challenging a meeting of a county board of health on March 23, 2020 as having violated the OMA's public comment requirement. 

The PAC reviewed the agenda for the board's meeting which stated that the board would be holding a "virtual meeting" and provided an internet link that the public could use to listen to the meeting. The agenda also stated that public comments could be submitted in writing two hours before the meeting and provided an email address where those comments could be submitted. 

Acknowledging the Governor's Executive Order as authorizing public bodies to meet remotely during the pandemic, the PAC found no violation of the OMA in how the board conducted its meeting, stating as follows:
It would be illogical to construe OMA as prohibiting a public body from meeting remotely during public health emergencies because the limitations of meeting in such a format may necessitate a temporary change in the public body's method of allowing public comment.
With respect to how the board handled public comment, the PAC noted that:
Allowing public comment to be submitted via email allowed members of the public to address the substance of their comments to the Board.
In sum, the PAC stated that it was unable to conclude that the board unreasonably restricted public comment under the exigent circumstances that existed at that time. 

Tuesday, April 7, 2020

Breaking: Governor Suspends Annual Township Meeting


State statute requires Illinois townships to hold an annual town meeting. In 2020, these town meetings would have been required to be held on April 14, 2020 or April 21, 2020 -- right in the middle of the Governor's stay at home order. Because these meetings are different than the regular meetings of the township board of trustees, the recent Executive Order allowing public bodies to meet remotely did not apply to these town hall-type meetings. 

Today, the Governor addressed concerns raised by Illinois townships in Executive Order 2020-22 which suspends Sections 30-5(a) and 30-5(b) of the Township Code that would have required each township to conduct its annual 2020 meeting on either April 14th or 21st. The suspension of the statutory requirement for the 2020 town meeting lasts through the duration of the Governor's Disaster Proclamation.

The language from the EO is here:
Section 1. The provisions of the Township Code, 60 ILCS 1/30-5(a) and 30-5(b), requiring that each township’s annual township meeting for calendar year 2020 be held on either April 14, 2020 or April 21, 2020 are suspended through the duration of the Gubernatorial Disaster Proclamations.
You can read the Governor's Executive Order 2020-22 here.

PAC Issues Advisory Opinion on Remote Meetings During Pandemic


As we have discussed a number of times, last month, Governor Pritzker issued Executive Order 2020-07 suspending the physical quorum requirement for public bodies, meaning Illinois government bodies can meet remotely during the COVID-19 pandemic. The Attorney General also issued guidance on remote meetings, which we also reported about previously

Recently, the Illinois Attorney General's Public Access Counselor (PAC) issued a non-binding opinion in response to a challenge to the legality of a meeting of a public body where all but one member participated electronically. 2020 PAC 62246. The meeting involved the Chicago Exective Airport Board, which held a scheduled meeting with the chairman physically present and the six directors participating via teleconference. The complainant filed a "request for review" with the PAC office aleging that the meeting violated the OMA because the public body did not have a physical quorum present. 

The PAC acknowledged that under normal circumstances, a physical quorum would be required under section 7(a) of the OMA. However, the Governor had declared Illinois a disaster area in response to the COVID-19 pandemic, and in order to protect the public's health during the pandemic, had issued EO 2020-07 expressly suspending the physical quorum requirement for meetings of public bodies in Illinois. The PAC noted that the EO was in effect at the time of the March 18th meeting that was the subject of the complaint, and the EO "permitted the Board to have less than a quorum of members physically present" at this meeting "and allowed its members to participate remotely without the limitations described in section 7 of OMA." As a result, the PAC found no violation of the OMA.

Thank you to one of our readers who shared this non-binding opinion with us. As we've reported in the past, much of the helpful guidance we get from the PAC office comes through these non-binding opinions and we appreciate our readers who forward them to us!





Monday, April 6, 2020

New Quorum Forum Podcast: COVID-19 Leave Laws




Local governments are asking us a lot of questions about the new federal legislation on sick leave and expanded FMLA. As a result, Ancel Glink's labor and employment team recently hosted a webinar on the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act, and we're pleased to share it with you on Ancel Glink's Quorum Forum podcast! 

In Quorum Forum Episode 37: COVID-19 Leave LawsKeri-Lyn Krafthefer, Margaret Kostopulos, Chris Welch, and Matt DiCianni discuss common questions about new COVID19 leave laws, including: 
  • What local governments does this apply to?
  • Which employees do these laws cover?
  • Under what circumstances do we have to pay employees under these laws?
  • How do these laws relate to our existing leave laws?
  • How does this apply to first responders?
  • How can we prevent abuses of these laws?
  • What are the best practices?
  • ...and more!


You can also access our resources here:



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



Wednesday, April 1, 2020

COVID-19 Webinar - Handling Leave Issues Under the FFCRA and EPSLA



Earlier this week, we conducted a webinar Q&A on Covid-19 issues - for those of you who could not log-on because we exceeded capacity or could not attend because of a conflict, you can access the recording of this webinar on our Quorum Forum Podcast website

Because of the high volume of questions that we are getting related to the implementation of the new federal legislation on sick leave and expanded FMLA, our Ancel Glink labor team will also be hosting a webinar on the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act on Thursday, April 2, 2020, at 12:00 p.m. 

This webinar will discuss:

  • What local governments does this apply to?
  • Which employees do these laws cover?
  • Under what circumstances do we have to pay employees under these laws?
  • How do these laws relate to our existing leave laws?
  • How does this apply to first responders?
  • How can we prevent abuses of these laws?
  • What are the best practices?
  • Frequently Asked Questions
Please join our labor and employment team as we walk through these issues and others related to local governmental obligations under these new laws.

Meeting Information

  • Thursday, April 2, 2020, at 12:00 p.m. Central Time
  • Meeting link: Please click here
  • Meeting number: 628 999 022
  • Password: HJmtD5PMY73
More ways to join

Join by video system

Join by phone

  • 1 (844) 992-4726 United States (Toll-Free)
  • 1 (408) 418-9388 United States (Toll)
  • Access code: 628 999 022
Global call-in numbers | Toll-free calling restrictions

https://www.webex.com/pdf/tollfree_restrictions.pdf

Tuesday, March 31, 2020

Conducting Meetings During Covid-19


One of the most frequently asked questions we have received from our local government clients during the Covid-19 stay at home order relates to conducting "virtual" board and council meetings so we have shared our general thoughts on this topic below.

Q: Our corporate authorities have decided to meet over GoToMeeting for its next regular board meeting to comply with the Governor's stay at home order. Do we still have to meet in a manner that is open and convenient to the public?

A: Yes. Although Executive Order No. 2020-07 (issued on March 16, 2020) suspended some of the requirements for in-person attendance at meetings to allow electronic attendance, it did not suspend the Open Meetings Act generally. Meetings must still be held in a manner that is "open and convenient" to the public and there still needs to be an opportunity for public comment. Of course, public bodies still must comply with notice and agenda requirements as well.

During these strange days there will be changes from your normal meeting procedures, but public bodies still cannot conduct business privately. Consideration should be given to how the public can at least see or listen to the meeting virtually without needing to attend in person. Instructions for how members of the public can see, listen, and/or participate in meetings should be listed at the top of each agenda. In addition, instructions for how members of the public can submit public comments should also be listed on the agenda. That might include, for example, listing an email address or cell phone number where members of the public can send written comments in advance of or at the meeting that will be read at the meeting or identifying a call-in number of log-in information where the public can electronically participate in the meeting and provide public comments either through a chat function or through audio or video means during the public comment portion of the meeting. 

The key takeaway is that the Open Meetings Act is still in effect, and meetings of public bodies must still be open to the public, even those meetings that are "virtual" in nature where all or most of the public body is attending electronically.

Monday, March 30, 2020

Court Discusses the Prevailing Wage Act and Landscaping Work


Public bodies should take note of a recent appellate court decision interpreting the Prevailing Wage Act as it applies to landscaping work for public bodies and the importance of carefully drafting scope of work descriptions for projects that might be subject to the Prevailing Wage Act. Valerio v. Moore Landscapes, 2020 IL App (1st) 190185 (March 26, 2020).

In Valerio, 12 landscape laborers filed suit against Moore Landscapes for failing to pay them the prevailing wage for the tree planting work pursuant to its contracts with Chicago Park District. The trial court had dismissed the case but the appellate court reversed, finding that the plaintiffs allegations that the landscape work that plaintiffs were employed to do (planting trees and performing landscaping and related work for Chicago Park District) was subject to the Prevailing Wage Act was sufficient to survive a motion to dismiss.   
The Valerio decision reiterated the Department of Labor’s guidance concerning how public bodies do not comply with Section 4(a-1) of the Act by providing generalized statements that contractors must comply with all applicable laws or stating that contractors must comply with the Act to the extent it applies. Instead, public bodies are advised to specifically state whether or not a project is subject to the Act’s provisions.
With respect to landscaping, the rule about landscape maintenance not being subject to the Act remains intact (i.e., pruning a tree, tree removal, stump grinding, replacing a dead tree with a new one); likewise, landscape work is subject to the Act when it is a public works improvement project or part of one. In Valerio, the public works project was a new landscape with new trees and new hardscape work and, therefore, likely constituted a public work improvement project subject to the Act. 

Post Authored by Derke Price and Eugene Bolotnikov

Friday, March 27, 2020

Don't Forget to Check the Workplace Report Re: Paid Sick Leave and Emergency FMLA


Just a reminder to Municipal Minute readers to subscribe to or follow Ancel Glink's labor and employment law blog, the Workplace Report with Ancel Glink, for up-to-date information on employment-related issues relating to Covid-19. 

You can check out the blog here.  

You should pay particular attention to a few of our most recent blog posts that answer some of the most common questions regarding the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), which you can find by clicking on the links below:



Thursday, March 26, 2020

Join Ancel Glink on March 31 for Coronavirus Q&A



On Tuesday, March 31, 2020 from 12:00 pm to 1:00 pm, join Ancel Glink attorneys to discuss local government coronavirus response in a web conference hosted by Ancel Glink's Quorum Forum podcast. State Rep. Chris Welch will review what the state’s ongoing efforts mean for you, while Keri-Lyn Krafthefer, Julie Tappendorf, and Matt DiCianni answer your questions about managing employees, open meetings, essential services, and the other COVID-19 issues facing local governments. 

Space is limited, so click here to register and claim your spot today!


Wednesday, March 25, 2020

DECO Provides Guidance on Essential Businesses During Stay at Home Order


Many municipalities are fielding complaints and questions from residents and other business owners about certain businesses that remain open during the Governor's stay at home order. Police departments and other municipal staff are being asked by residents and others to enforce the Governor's order and require these businesses to close down. The issue turns on whether a business falls within the definition of an essential business or operation which is allowed to remain open or whether employees of a non-essential business are performing permissible "minimum basic operations."

We reported earlier this week on the Governor's order and listed some of the businesses that are considered "essential" and, therefore, allowed to remain open. Although the list is quite detailed, there are still questions as to whether a particular business falls within one of the listed categories.

This week, the Illinois Department of Commerce & Economic Opportunity (DECO), a state agency, issued guidelines called "Essential Businesses & Operations." These guidelines include the list of essential businesses and operations, as well as guidance on how essential businesses can and should operate. It also includes information to assist businesses in determining whether they might be essential. Finally, it includes a number of commonly raised questions about particular businesses, including car dealerships, personal trainers, technology companies, landscapers, and others. 

You can read DECO's guidance on Essential Businesses & Operations here.

In addition, a business can email DECO to obtain guidance on whether its business is considered essential under the Governor's order. 

DECO has also provided a flowchart for Essential Businesses here.

Tuesday, March 24, 2020

State Issues New COVID-19 Guidance to Local Liquor Control Commissions


Last week, in response to the COVID-19 global health crisis, Governor J.B. Pritzker issued an executive order requiring the closure of all bars and restaurants for on-premises consumption. To ease financial hardships imposed by the order and to promote social distancing, the Illinois Liquor Control Commission issued new guidance to local liquor commissioners across the state. The new guidance temporarily authorizes the delivery of alcoholic liquor subject to local approval, and defers to local liquor commissioners whether a municipality will allow “on-premises only retailers” to engage in off-premises sales.

Under these conditions, the Illinois Liquor Control Commission allows local liquor commissioners to permit temporary deliveries of alcoholic liquors. All retail licensees would be temporarily allowed to make curbside deliveries, home residential deliveries, and any other sale or delivery intended to promote social distancing. Local liquor control commissioners may also authorize retailers and temporary delivery licensees to use third party delivery services. However, all deliveries must be made in the original container and licensees may not sell or deliver pre-mixed cocktails normally intended for on-premises consumption. Deliveries made to a residence or to a curbside vehicle will require the delivery representative to observe the recipient at a safe social distance, and if necessary, require the examination of the recipient identification to ensure the recipient is over twenty-one. These temporary privileges are not generally allowed by law, and will be rescinded when the state terminates its COVID-19 emergency restrictions.

In additional guidance, the Illinois Liquor Control Commission announced it will accept the decision of a local liquor control commissioner to allow “on-premises only” retailers to sell alcoholic liquor off the licensed premises. License holders that normally have this privilege include combined (on/off consumption) retailers, off-premises only retailers, brew pubs, distilling pubs, brewers, and craft distillers. However, local authorities may now authorize an on-premises only retailer to make “package” or “to go” sales of alcoholic liquor for consumption off the licensed premises.

The Illinois Liquor Control Commission has also announced that renewal deadlines for state liquor licenses expiring March 31, April 30, and May 31 have been extended to July 31, 2020. As a result, state licenses will remain in effect even if the expiration date on its face indicates that it has expired.

Local liquor control commissioners can review the latest guidance on the Illinois Liquor Control Commission’s website, and consider authorizing these types of liquor sales that promote social distancing during the COVID-19 emergency.


By Daniel J. Bolin and Rain Montero

Monday, March 23, 2020

Details about Governor's Stay at Home Order


Last week we reported on the Governor Pritzker's "Stay at Home" Executive Order, which became effective on Saturday, March 21, 2020 at 5:00 pm. Today, we wanted to provide more details about what that EO means to local governments and their officials and employees and how it may affect your operations and activities, both professionally and personally. You can access the Governor's Order on the state's website here.

What is not allowed during the effective period of the order

The general purpose of the stay at home order is to require individuals in Illinois to stay at home  during this 17 day period, with limited exceptions. So, non-essential businesses must cease operations, non-essential activities and public and private gatherings are prohibited, places of amusement and other operations must close, and non-essential travel must stop.

What is allowed during the effective period of the order

Although the purpose of the order is to keep people at home, there are certain operations and activities that are allowed to continue with appropriate social distancing. While we have summarized some of the key details below, note that this is not an exhaustive list of the permitted activities and operations. If you have any questions about a particular operation or activity, we recommend you review the order itself and consult with your attorney.

The exceptions to the stay at home mandate are identified as follows:

1. Essential Activities
2. Essential Government Functions
3. Essential Infrastructure
4. Essential Businesses and Operations
5. Minimum Basic Operations (non-essential businesses)
6. Essential Travel

1. Essential Activities

Individuals can leave their homes to receive health care and public health services, shop for groceries and necessary supplies, engage in outdoor exercise, or care for a family member, friend or pet, as well as engage in any of the activities or operations identified below.

2. Essential Government Functions

All functions provided by the state or any local government necessary to ensure the continuing operation of the government agencies or provide for or support the health, safety, and welfare of the public, and including contractors performing Essential Government Functions can continue. 
  • Each government must determine its Essential Government Functions and identify employees and contractors
  • All first responders, emergency management personnel, dispatchers, court personnel, law enforcement and corrections, hazardous materials responders, child welfare personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from the order
3. Essential Infrastructure

Individuals may leave their home to provide services or work to provide "essential infrastructure" which are listed in the order. For local governments, that means that employees and contractors can work on the following (not an exhaustive list):
  • public works construction
  • building management and maintenance
  • utility operations
  • road and public transportation
  • flood control
  • solid waste and recycling collection and removal, among others
4. Essential Businesses and Operations

Individuals may leave their home to provide services or work for any essential businesses and operations. The list of essential businesses is quite lengthy, so I encourage you to consult the list or with your attorney if you are unsure whether a particular business is lawfully operating.  Examples of some of these essential businesses include the following (not an exhaustive list):
  • health care and public health operations (excludes fitness centers, spas, salons, barber shops, and similar businesses)
  • grocery stores 
  • pharmacies and medical marijuana dispensaries
  • gas stations, auto repair (but not sales), and bike shops
  • banks and related financial institutions
  • hardware and supply stores
  • critical trades (plumbers, electricians, etc)
  • postal and other delivery services
  • laundry and dry cleaners
  • restaurants for off-premises consumption
  • supplies for work from home operations
  • transportation
  • professional services (legal, accounting, insurance, real estate)
  • day care for essential workers
  • hotels and motels
  • funeral services


5. Minimum Basic Operations (for non essential businesses)

Other businesses not identified as essential businesses in the order are required to close although employees can continue business from home. There are certain minimum basic operations, however, that are allowed during the order:
  • minimum necessary activities to maintain inventory, preserve plant and equipment, ensure security, process payroll and employee benefits, or related functions
  • minimum necessary activities to facilities employees working from home
6. Essential Travel

Travel is expected to cease unless the travel is necessary to engage in one of the above permitted activities (essential activities, essential business, etc).

Enforcement

The order expressly states that state and local law enforcement agencies can enforce the order under sections 7, 18, and 18 of the IEMA Act. The order itself does not contain a penalty for violations.

While there is authority to enforce the order at the local government level, it is important to note that Governor Pritzker made it clear that he expects residents and businesses to self-regulate rather than have aggressive enforcement by the police. Most local law enforcement agencies will look to compliance by residents and businesses as the goal (meaning verbal warnings for first violations before considering fines or other penalties).

Effect on Local Authority

The order specifically reserves the right of local governments to enact stricter regulations, including quarantine or isolation orders, where appropriate or necessary.