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Thursday, September 17, 2020

EEOC Releases Updated FAQ For Employers on COVID-19

Ancel Glink's employment law blog, The Workplace Report with Ancel Glink, recently reported on updated EEOC guidance to employers regarding COVID-19. We've reprinted the post below but we also encourage you to visit and subscribe to The Workplace Report here.


Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and we suggest that employers take a look at them, which they can do by clicking here.

Last week the EEOC updated some of its FAQs, and we have highlighted a few of those updates below:

Employers Can Require Employees to Take a COVID-19 Test

Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances.

Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks too. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.

Employers Must Keep COVID-19 Information Confidential

The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe.

Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.

Employers Can Ask Employees to Identify Accommodations They Need Before Entering the Workplace

Employers can, and probably should ask employees for reasonable accommodations they need before coming back to work. Remember, a reasonable accommodation does not need to be the best accommodation or the accommodation the employee wants—it only needs to allow the employee to be able to perform his or her job.

Also, telework does not have to be granted as a reasonable accommodation. If the employee needs to come into the workplace, and safety precautions can be taken to allow the employee to perform his or her job in the workplace, the employer can require the employee to come in.

Don’t Lay Off or Furlough an Employee Just Because He or She Contracts COVID

Doing this is a violation of the ADA. It also is a violation of the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide employees who contract COVID with ten days of paid sick leave.

Original post authored by Matt DiCianni, Ancel Glink

Wednesday, September 16, 2020

Court Addresses Challenge to a Municipality's DUI Impound Fee

We've previously reported on a few cases involving challenges to municipal impound and towing charges. Recently, an Illinois appellate court considered a challenge to a City of O'Fallon ordinance that imposes a $500 charge on a driver whose vehicle is impounded for a DUI offense. Saladrigas v. City of O'Fallon

The Village ordinance imposes the $500 charge in addition to other fees imposed for towing and storage of the vehicle and penalties imposed for the DUI offense. A driver who was assessed this $500 charge challenged the ordinance, claiming it was an unconstitutional administrative fee as it was not reasonably related to the recovery of the Village's administrative costs. The Village argued it was a fine, not a fee, so there was no requirement that the Village establish that the amount was reasonably related to its administrative costs. The circuit court agreed with the Village, but on appeal, the Appellate Court rejected the Village's argument and determined that the $500 charge was an administrative fee, and not a fine. Important to the appellate court was language in the Village's ordinance that identified the charge as a fee, not a fine, and the purpose of the charge was to recoup costs incurred by the Village in processing DUI arrests.

It's important to note that the Appellate Court did not issue any ruling on whether the "fee" was constitutional or not, instead remanding it back to the circuit court to make a determination as to whether the amount of the fee was rationally related to the City's legitimate government interests in recouping costs.  Interestingly, although the court acknowledged that the City was a home rule municipality, it did not seem to take that into consideration in its ruling. It will be interesting to see how this case moves forward in the circuit court, particularly since many municipalities throughout the state impose similar charges on DUI impounds.

Tuesday, September 15, 2020

Court Finds Sanitary District Conditions on Sewer Connection Constitutional

An Illinois Appellate Court recently issued a ruling in favor of a Sanitary District, the City of Champaign, and other government bodies in a challenge to invalidate an intergovernmental agreement and other ordinances that affected the development of the plaintiff's property. I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District.

The challenged IGA and ordinances allowed the plaintiff to annex its property to the Sanitary District (and connect to the Sanitary District's sewer system) only if the plaintiff entered into an annexation agreement with the City of Champaign to annex the property to the City. The plaintiff objected to that condition, claiming it did not want to annex to the City because it would subject the property to the City's zoning jurisdiction. So, the plaintiff sued the various government defendants to invalidate the IGA and ordinances, claiming that the plaintiff was deprived of its valuable property interest without due process of law. The lawsuit also challenged the authority of the defendants to enter into the IGA. Finally, plaintiff claimed that the "coerced annexation" violated plaintiff's constitutional right to freely and voluntarily choose whether and how to participate in the electoral process of municipal annexation. 

The circuit court ruled in favor of the defendants. On appeal, the Appellate Court upheld the ruling in favor of defendants, rejecting plaintiff's challenge to the IGA and ordinances. First, the Appellate Court held that the Sanitary District had the authority to enter into the IGA and impose conditions on the connection to the District's sewer system. Second, the Appellate Court rejected plaintiff's argument that the condition imposed by the District requiring annexation circumvented the procedures contained in the annexation statute for forced annexations, finding the condition to be "leverage" to further annexation rather than a forced annexation. The Court also rejected plaintiff's due process argument, finding no entitlement under Illinois law to subdivision approval. In short, the Appellate Court rejected plaintiff's challenge to the constitutionality of the IGA and its conditions on annexation.

Monday, September 14, 2020

Police Chief Fired For Posting Looting Meme on Personal FB Page

It's been awhile since we have reported on social media activities that result in an employee's termination.  An Illinois municipality recently fired its police chief for posting a meme on his personal Facebook page that showed people looting from a store, with the following caption:

Looting....when free housing, free food, and free education just aren't enough

The village issued a press release about the termination:

We hold all of our public officials to the highest standards in their personal and professional lives in Orland Hills. This social media post is in incredibly poor taste. It does not reflect the values of the people of our community, and we will not tolerate such behavior from any of our public officials.

Just another reminder that employees should be mindful of what they post on social media. It is important to consider that "personal" does not necessarily mean "private" when engaging in online activities, and that the First Amendment does not protect all speech.

Friday, September 11, 2020

Court Reject Plaintiffs' Challenge to the Obama Presidential Center Project

Protect Our Parks, Inc. and Maria Valencia filed a lawsuit against the City of Chicago and the Chicago Park District to try stop construction of the Obama Presidential Center in Chicago’s Jackson Park. The plaintiffs claimed that the Obama Presidential Center project does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation. Specifically, they argue that the defendants violated Illinois’ Public Trust Doctrine by transferring control of public parkland to the Obama Foundation for a purely private purpose. They also argue that the defendants acted beyond their legal authority when they entered into a use agreement with the Foundation, violated the Fifth Amendment's "Takings Clause" by taking plaintiffs' property for a private purpose, and violated plaintiff's due process rights. 

The Seventh Circuit recently issued a ruling in this case finding in favor of the defendants on the federal law claims (takings and due process claims), and sending the case back to the district court to dismiss the state law claims (public trust and authority claims). Protect our Parks, et al. v. Chicago Park District, et al.

On the federal law claims, the Seventh Circuit determined that plaintiffs did not have adequate standing to bring those claims. The Court rejected plaintiffs' argument that it had standing based on its status as taxpayers, finding that the plaintiffs failed to show that they would suffer special damage different than what the public at large would suffer. In addition, since the construction of the project is privately funded rather than funded by the City, it wasn't clear how taxpayers would be injured for purposes of finding "standing" to challenge the project. In addition, plaintiffs did not establish any private property interest in Jackson Park for their federal law claims. Finally, the Court rejected plaintiffs' takings and due process claims, finding no merit to their substantive arguments.

In sum, the Seventh Circuit upheld the district court’s summary judgment ruling in favor of the defendants on the plaintiffs' federal claims, but ruled that the district court should have dismissed plaintiffs' state claims for lack of jurisdiction, and remanded the case back to the district court.

Post Authored by Joyce Jezeer & Julie Tappendorf, Ancel Glink

Thursday, September 10, 2020

Quorum Forum Podcast on Emails on Personal Devices Now Available

As we reported last week, Ancel Glink's Quorum Forum Podcast went "live" to discuss a new court decision about emails and texts on government officials' and employees' personal accounts. We also explained what qualified immunity is for local governments in the ongoing national conversation about claims against police. 

If you missed this episode when it went "live," no problem - you can tune into the audio recording on our Quorum Forum Podcast website here. You can also watch it on YouTube or Facebook.

Wednesday, September 9, 2020

7th Circuit Upholds Illinois' Gathering Restrictions

There have been a number of legal challenges to Governor Pritzker's COVID-19 related executive orders, many of which we have reported about on Municipal Minute. Recently, one of those challenges made its way to the 7th Circuit Court of Appeals (a federal appeals court). In Republican Party of Illinois v. Pritzker, the 7th Circuit upheld Governor Pritzker's restrictions on gatherings against a challenge that the gathering restrictions were unconstitutional because they favored the free exercise of religion over political speech.

The Republican Party argued that the Governor's gathering restrictions in various executive orders are illegal because they allow larger groups of people to gather in a church, mosque, or synagogue to worship, but the same number of people are not allowed to gather to discuss the upcoming presidential election. The Party claimed that this distinction is unconstitutional under the U.S. Supreme Court's ruling in Reed v. Gilbert (a case involving a challenge to a municipality's temporary sign regulations). The Court rejected the Party's argument, finding that the issue raised in Reed was focused on an alleged disadvantage to religious institutions and not the lifting of a burden from religious practice. The Court emphasized the special treatment given in the First Amendment to the free exercise of religion, which the Court distinguished from free speech. 

In ruling in favor of the Governor, the Court stressed that its ruling does not mean that religious institutions can do whatever they want. The Court provided specific examples (such as a Labor Day picnic, night at the movies event, or battle of the bands), which would be subject to the 50 person gathering restriction that applies to similar events hosted by non-religious groups. In other words, the special treatment provided to religious institutions under the executive orders should be limited to "free exercise of religion." As a result, the 7th Circuit rejected the Party's argument that the free exercise of religion must be treated the same as political speech with respect to limits on gatherings. The Court held that the free exercise of religion "enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities." 

The Court also rejected the Party's argument that the Governor is implicitly favoring Black Lives Matter protests by not enforcing the 50 perrson gathering restrictions on these protests. The Court found no evidence of that, but did caution the Governor that the Court would likely take issue with any preference for messaging of one type of event over another.

Tuesday, September 8, 2020

Happy 9th Anniversary to Municipal Minute!

On September 3, 2011, I started Municipal Minute as a way to share new cases, recently enacted legislation, and other legal updates that might be of interest to local government officials and employees. Nine years (and 1799 blog posts) later, we are still reporting on new developments in the area of local government law. We have shared hundreds of PAC opinions on FOIA and OMA issues, numerous case summaries and legislative updates, and provided our readers with more COVID-related developments than we can count. It has been my pleasure to share my nerd-love for local government law with all of you and I hope you can stick around for another nine years when we turn 18 and reach adulthood.

In case you weren't a regular reader in 2011 (and let's be honest, there were just a handful of you back then!), you can check out our first blog post here:  Tweeting into Trouble?

Tuesday, September 1, 2020

Quorum Forum Live: Public Records on Personal Accounts

Quorum Forum 43: Public Records on Personal Accounts – LIVE!

Join us for a live recording of the latest episode of Ancel Glink's Quorum Forum podcast at 12:00 p.m. on Thursday, September 3, 2020. Julie Tappendorf will join us to review a recent Illinois appellate court decision finding communications pertaining to public business in public officials’ personal text messages and e-mail accounts are public records subject to FOIA. Then, Kathy Kunkle explains what qualified immunity means for local governments in the ongoing national conversation about claims against police. Just visit www.youtube.com/ancelglink on Thursday at noon to listen and share your questions with us!

Wednesday, August 26, 2020

New COVID Restrictions for 2 Illinois Regions

Since June 26, 2020, the State of Illinois has been in Phase 4 of the Restore Illinois COVID-19 plan established by the Governor's office. As we reported previously, the Governor had modified the Restore Illinois plan on July 15th to divide up the state into 11 regions to would allow the State to address resurgences of COVID-19 on a more individualized basis. In the last week, the Governor issued two orders that issued new mitigation requirements for Regions 4 and 7.

Region 4 (Metro East)

On August 18, 2020, Governor Pritzker issued EO 2020-51 instituting new mitigation and health restrictions for the Metro East region, which includes Bond, Clinton, Madison, Monroe, Randolph, St. Clair, and Washington Counties. 

The EO places new restrictions on bars and restaurants, including the following:

  • require closure at 11 pm
  • restrict the number of persons at tables for indoor dining
  • require the removal of bar stools from bar areas
  • prohibit dancing
  • mandate customer reservations
  • have customers wait off-premises before being seated. 
Meetings and social events are limited to the lesser of 25 people or 25% of room capacity, and no party buses. 

Gaming and casinos must close at 11 pm and are limited to 25% capacity. 

Region 7 (South Suburban)

Less than a week later, the Governor announced that Region 7, which includes Will and Kankakee counties, would also be subject to new mitigation requirements effective August 26th. These include the following:

The following new mitigation requirements will apply to bars and restaurants:

  • require closure at 11pm
  • prohibit indoor service
  • remove bar stools and prohibit congregating at bars
  • no dancing or standing indoors
  • no seating of multiple parties at one table
  • reservations required for restaurants
Meetings and social events will be limited to 25% capacity, and no party buses.

Gaming and casinos will have to close at 11 pm and will be limited to 25% capacity

Tuesday, August 25, 2020

DCEO Issues Updated Dining Restrictions for all 11 Regions of Illinois

New restrictions were announced today for Illinois bars and restaurants. These restrictions go into effect tomorrow, August 26, 2020. 

The new guidelines will require customers to wear a face covering during any interaction with wait staff and other other employees at bars and restaurants. That means that customers must wear face coverings when employees take customer orders, deliver food and beverages, and service tables. Face coverings must also be worn when picking up carry out orders. These new requirements apply to indoor and outdoor dining facilities throughout the State of Illinois, in all 11 regions.

The updated dining guidelines can be found on DCEO's website here.

Liquor Control Commission Issues Guidance to Municipalities of Emergency Suspension Powers

The Illinois Liquor Control Commission recently issued guidance to local liquor commissioners regarding their authority to temporarily suspend a liquor license for a period of 7 days in certain circumstances pursuant to section 7-5 of the Illinois Liquor Control Act. Section 7-5 provides as follows:

If the local liquor control commissioner has reason to believe that any continued operation of a particular licensed premises will immediately threaten the welfare of the community he may, upon the issuance of a written order stating the reason for such conclusion and without notice or hearing order the licensed premises closed for not more than 7 days, giving the licensee an opportunity to be heard during that period, except that if such licensee shall also be engaged in the conduct of another business or businesses on the licensed premises such order shall not be applicable to such other business or businesses.

The Liquor Control Commission advises local liquor commissioners to take the following steps should a local liquor commissioner decide to exercise this authority against re-opened liquor license establishments whose operations are immediately threatening the welfare of the community, including the following:

1. Consult City Attorney.

2. Commence an investigation.

3. If necessary, notify the bar/restaurant in writing that LLCC could immediately cease the license without a hearing if they violate restaurant/bar reopening requirements.

4. If necessary, issue a written order ceasing the liquor license for no more than 7 days which may include the following information:

 a. Cite 235 ILCS 5/7-5 of the Illinois Liquor Control Act.

 b. State date/s and time/s of when order is in effect.

c. State the basis for LLCC conclusions that continued operation of the bar/restaurant will immediately threaten the welfare of the community.

d. State that the licensee has the right to be heard during the license cessation period. For example, LLCC could allow the licensee to submit a plan to help ensure compliance with State bar/restaurant requirements. 

e. Sign and date the order.

f. Require law enforcement agency to personally serve the order on owners/officers.

g. Monitor and enforce order if necessary. 

This guidance reminds municipalities of the authority they already have under state law to deal with licensed establishments whose operations are threatening the public welfare, such as during a pandemic.