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Wednesday, May 22, 2019

PAC Says Board Violated "Public Recital" Provision of OMA

Recently, the PAC issued its fourth binding opinion of 2019, finding a public body in violation of the Open Meetings Act for failure to provide an adequate public recital of the business being conducted before taking final action on a resolution. PAC Op. 19-004.

On January 28, 2019, at a Pinckneyville school district board meeting, the board voted on "Resolution 2019-1 authorizing a Notice to Remedy." Shortly thereafter, a newspaper reporter filed a complaint with the PAC arguing that the board did not give any public details about the resolution prior to voting on it. The PAC contacted the school board for a response, and the school board provided copies of the agenda, minutes, closed session recording, resolution, and the "Notice to Remedy." The school board attorney explained to the PAC that the resolution number and title were read aloud prior to the board voting on the resolution, as reflected in the minutes of the meeting. 

In analyzing the complaint, the PAC acknowledged that the Illinois Supreme Court had issued an opinion holding that the "public recital" requirement of the OMA does not require the board to explain the terms or significance of the item being voted on but must announce the nature of the matter. Bd. of Ed. of Springfield Sch. Dist. No. 186 v. Attorney General. You may recall that we reported on that Illinois Supreme Court decision previously. Nevertheless, the PAC found that in this case, the school board violated the OMA because it failed to disclose enough detail about the resolution prior to voting on it, including disclosing the name of the teacher being served with the Notice to Remedy).

It is difficult to square this opinion with the Illinois Supreme Court's ruling in the Springfield case. In overturning an earlier PAC opinion that a Springfield school district must engage in discussion and disclose the terms and details of a matter prior to voting on it, the Supreme Court made it clear that "public recital" does not require some level of detail or a summary of the events leading up to the vote. Nor does it require the public body to explain the significance of the action. Instead, it requires the public body to "state the essence of the matter under consideration, its character, or its identity." In the case at issue in PAC Op. 19-004, the Pinckneyville board identified the matter being approved (a resolution), and the character or nature of the resolution (to approve a Notice to Remedy). Nowhere in the Supreme Court's ruling does it seem to require disclosure of the employee's name to satisfy the "public recital" requirement of the OMA. The apparent inconsistency between the Illinois Supreme Court's ruling in the Springfield case and the PAC's opinion in PAC Op. 19-004 makes it difficult for public bodies to understand what type of detail the board must go into prior to taking a vote. 

Since this is a binding opinion, it can be appealed by the Pinckneyville school board - we will keep you posted if this case goes any further. 

Thursday, May 16, 2019

Reminder: Prevailing Wage Act Changes Take Effect June 1

About this time each year, Illinois public bodies begin putting together their annual prevailing wage ordinances or resolutions to present to their boards and councils for approval in June so the ordinance or resolution can be filed with the Department of Labor by the July 15th statutory deadline of the Prevailing Wage Act. Not this year, though. As we reported previously, the Illinois General Assembly enacted P.A. 100-1177 to amend the Prevailing Wage Act to eliminate the requirement that public bodies adopt an ordinance or resolution to "ascertain" prevailing wages. That new law takes effect June 1, 2019, just in time to eliminate this year's requirement of adopting an ordinance or resolution.

Moving forward, instead of every public body adopting an ordinance or resolution ascertaining prevailing wages, the Department will ascertain the prevailing wage for them. Of course, the underlying statutory requirement that public bodies pay prevailing wages for work covered by the Act still exists, but the annual obligation to adopt a prevailing wage ordinance or resolution will be eliminated on June 1st.

Tuesday, May 14, 2019

GovLove Podcast on Regulating Public Rights of Ways

Check out Ancel Glink Partner Dan Bolin's appearance on #GovLoveLegal, a GovLove podcast hosted by ELGL and recorded live at the 2019 APA National Planning Conference. A description of the podcast is below and you can listen to the podcast here.  
GovLove was recently at the National Planning Conference for a session all about right-of-way. Local governments hold the public right-of-way in trust for the benefit of the public; but rapid changes in technology, federal policy, and constitutional law are increasing demands for services and challenging local regulatory authority. Experienced local government attorneys, and industry professionals discuss best practices for right-of-way management in the face of emerging challenges. Panelists include: Alan Weinstein, Cleveland State University; Alicia Giudice, San Rafael, CA; Brandon Bordenkircher, Chaddick Institute for Metropolitan Development; Daniel J. Bolin, Ancel Glink; Gail A. Karish, Best Best & Krieger LLP; and Isidro A. Jimenez, San Francisco, CA.

Thursday, May 9, 2019

Village Did Not Breach Contract by Failing to Disclose County Permit Requirements

According to a recent Illinois case, the issuance of a building permit does not create a contract between an applicant and a municipality.  In 2008, Paul and Dana Mosier obtained a building permit from the Village of Holiday Hills to construct a garage, patio, and driveway on their property.  Five years later, the Mosiers were sued by McHenry County for constructing improvements within a regulatory flood-prone area without a County stormwater management permit.  In turn, the Mosiers sued the Village for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”). 

Mosiers claimed the Village’s building inspector breached an "oral contract" with them when he advised they undertake certain structural improvements, issued a building permit, but failed to notify them of the County’s permit requirements. In addition, the Mosiers claimed the building official violated the Consumer Fraud Act because he induced them to construct the improvements and knowingly made false statements.

In Mosier v. Village of Holiday Hills, the court ruled in favor of the Village on both claims.  First, it deemed a building permit more similar to a license than a contract because, similar to a license, a municipality has the power to impose restrictions and revoke building permits pursuant to its police powers. Second, when an applicant qualifies for a building permit, a municipality is required to issue it without receiving any “consideration” in return (other than the permit fee which pays for its costs).

The court also found the Consumer Fraud Act inapplicable. The Act is intended to prevent deceptive behavior during a transaction “involving trade or commerce” involving such things as advertising, offers for sale, or distribution of services or property. According to the court, instead of being a private commercial activity, the issuance of a building permit is a municipality’s fulfillment of its regulatory and statutory functions in accordance with state law and local ordinance.

Post Authored by David Warner, Ancel Glink

Wednesday, May 8, 2019

How Will Recreational Marijuana Affect Illinois Local Governments?

On May 4, 2019, Governor Pritzker and key legislators unveiled a long-anticipated proposal to legalize the use of cannabis for adults over the age of 21 under Illinois law (Amendment No. 1 to SB 7). The proposed law would allow residents over the age of 21 to possess up to 30 grams of cannabis and grow up to five plants per household. The Act prohibits the use of cannabis in public places including government buildings. 

While the draft legislation might be amended and still has to be approved by the General Assembly, it is not too early for local governments to prepare for the proposed law's sweeping changes affecting cannabis business establishments, including land use/zoning, tax revenues, employee policies, expungement obligations, among others. We can't possibly go into everything that is in the 533 page bill, but we have provided a brief summary of some of the provisions that affect units of local government below.

One Year to Prohibit Cannabis Business Establishments
The draft legislation contains a provision that will allow local governments to "opt-out" or entirely prohibit cannabis business establishments in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. However, any "measure prohibiting or significantly limiting" the location of cannabis businesses has to be adopted within one year of the effective date of the Act. After this one-year period has expired, local governments will have to seek approval by referendum to adopt any prohibition or significant limitation on cannabis businesses.

Regulate Cannabis Businesses
The current bill allows local governments to regulate cannabis businesses but only to a certain extent. The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act or unreasonably prohibit home cultivation and use of cannabis; (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses; and (3) regulations on the consumption of cannabis in a manner consistent with the Act.

This language would permit local governments to impose distance restrictions between cannabis businesses and other sensitive uses and locations, limit the hours of operation of cannabis businesses, or set a cap on the number of cannabis businesses allowed within the jurisdiction. The current bill also expressly allows local governments to regulate cannabis businesses through the use of conditional (special) use permits. While the bill allows local governments some regulatory authority, the bill prohibits local governments from regulating cannabis businesses in a more restrictive manner than allowed under the Act. Importantly, this prohibition includes an express home rule preemption. 

Employment Policies and Workplace Drug Policies
Under the current bill, employers will have the authority to adopt reasonable and nondiscriminatory employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace. In addition, employers will have the power to discipline or terminate employment of an employee for violating an employer's employment policies or workplace drug policy. The Act also establishes when an employer may consider an employee to be under the influence of cannabis. 

Municipal Cannabis Sales Tax
Under the current bill, both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments.

Expungement of Local Records and Offenses
The initial procedure for expunging criminal records will be handled by the Illinois State Police (ISP) as well as the State's Attorneys Office. However, local law enforcement will have to automatically expunge records pertaining to arrests for minor violations identified by the Department of State Police within 60 days of notice from ISP. 

SB 7 is only a proposal at this time and still needs to pass both the Illinois House and Senate and be signed by the Governor before it becomes law. However, it is important to note that the current draft state budget includes cannabis revenue, so, it is expected that the General Assembly will move fairly quickly to consider passing legislation. 

Monday, May 6, 2019

PAC Releases Annual OMA/FOIA Report of 2018 Activities

"Sunshine Week" came and went this year without any fanfare from the Illinois Attorney General's office. Typically, that is when the Public Access Counselor (PAC) publishes its annual report on OMA and FOIA complaints and training sessions. Although I didn't see any press about the release of the 2018 annual report, it was issued and you can find a copy of the report on the AG's website here.  

As we have in the past, we've highlighted some of the findings and summaries here in case you don't want to read through 39 pages of the full report.

Complaints filed in 2018

  • In 2018, the PAC received 3,748 "requests for review" of OMA and FOIA matters.  
  • 3,372 of these were related to FOIA
  • 376 relating to the Open Meetings Act

Training sessions conducted in 2018

The PAC conducted 32 training sessions on OMA/FOIA

Binding opinions issued in 2018

The PAC issued 18 binding opinions in 2018.  Regular readers know that we summarize the binding opinions on Municipal Minute. You can find summaries of the first 16 binding opinions issued in 2018 here and the last 2 binding opinions for 2018 here. They are also posted on the AG's website here.

Non-binding opinions issued in 2018

Interestingly, this year's annual report does not identity how many advisory opinions were issued in 2018.  Given that there over 3700 complaints filed in 2018, and only 18 binding opinions issued in 2018, one can guess that there were hundreds, if not thousands, of advisory opinions issued - either that, or a significant number of these complaints remain unresolved. 

So, where can one find all of these advisory opinions?

Well, as regular readers know, the PAC does not post the non-binding or advisory opinions on the AG's website. The only way to get access to these opinions is to file a FOIA request with the PAC or AG. The problem, of course, is that there are just so many advisory opinions. How does a requester narrow the request sufficiently to avoid an "unduly burdensome" claim by the PAC, a task that can prove very difficult if a requester doesn't have an idea of the topics addressed in these opinions since the PAC hasn't posted an index of these opinions. 

A handful of these advisory opinions are summarized in the annual report, so that is a helpful resource. But, I still remain hopeful that at the very least, the PAC will put together and post on its website an index of these advisory opinions to make it easier for the public and public bodies to request copies of opinions of interest. It would be a step in the right direction by the office tasked with ensuring government operates transparently.  And, it would offer a lot in the way of helpful guidance to public bodies in ensuring compliance with FOIA and OMA, particularly because there are so very few binding opinions issued each year (only 3 so far in 2019).

Thursday, May 2, 2019

Happy Birthday Quorum Forum! Podcast Episode 24 - Local Government Procurement

It’s Quorum Forum podcast’s first birthday party! We’re celebrating with the release of a new episode Episode 24: Local Government Procurement.

In this episode, Ancel Glink attorney David Warner will summarize recent annexation cases from Municipal Minute. Then, Ancel Glink attorney Derke Price reviews what newly (and not-so-newly) elected officials need to know about local government procurement. 

Questions about purchasing goods and services? Happy birthday wishes? Email us at podcast@ancelglink.com!

Tuesday, April 30, 2019

Follow Up on New Human Trafficking Notice Law

As we recently reported, amendments to the Human Trafficking Resource Notice Act require organizers of a public gatherings or special events on property open to the public that require the “issuance of a permit” from a unit of local government to post required notices to assist victims of human trafficking.

It's important to note that this new law also comes with new enforcement powers for local governments. While the Department of Labor was previously responsible for enforcement of the Act, now enforcement is up to the “governmental entity regulating a business or establishment and local law enforcement agency having jurisdiction...” In most cases, the enforcing authority will be a municipality or other unit of local government.

These new enforcement powers come with some practical problems. 

First, the phrase “public gathering or special event that is conducted on property open to the public and requires the issuance of a permit” is somewhat ambiguous. Based on the Act's emphasis on “public gathering” and “open to the public,” it seems that the law would only apply to events open to the general public, and not to private events such as a family celebration in a park district pavilion.

Second, although the Act specifically refers to events that require a "permit," it isn't clear whether that also extends to events that simply require local government approval or permission without the formality of a permit process.

Finally, the law requires local governments to give reasonable notice of a violation and a 30-day cure period before the Attorney General or State’s Attorney can prosecute violations and seek fines under the Act. But, it's likely the event will be over long before the 30-day cure period expires.

As a result, local governments interested in enforcing the notice requirement may wish to address these practical issues by ensuring that organizers of these events are on notice of the new requirements. That might include incorporating language into permit applications about the new notice requirements, and even requiring applicants to acknowledge when the Act applies to their events and that failure to post required notices will be subject to enforcement.

Post Authored by John Reding & Julie Tappendorf, Ancel Glink

Monday, April 29, 2019

6th Circuit Amends Opinion in "Chalking" Case

Last week we reported on a 6th Circuit Court of Appeals opinion finding a city's practice of chalking vehicles for parking enforcement to be an unconstitutional search under the Fourth Amendment. Just two days after the decision was issued, the 6th Circuit published an amended opinion, which you can read in its entirety at Taylor v. Saginaw.  

Unfortunately, the amended opinion did not change the Court's ruling that the city's chalking practice was unconstitutional.  It does, however, add the following new paragraph to the opinion's conclusion:

Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.
It is quite unusual for a court to amend its opinion after it has been released except to correct typographical errors so this is significant. Given the widespread concern raised across the country about this ruling, the Court may have felt it was necessary to clarify that its ruling is limited to the facts presented in this case, and that the city could still make other arguments to justify its chalking practice on remand.

Thanks to a reader for reaching out about this amended opinion.

Friday, April 26, 2019

City Not Liable For Pothole Injury to Driver Who Was Illegally Parked

An Illinois appellate court ruled in favor of a municipality in a case involving an individual who was allegedly injured when she stepped into a pothole in the street while returning to her parked car. The City had argued that the individual was not an "intended and permitted" user of the street because she had parked her car 5 feet into a marked no-parking zone within 15 feet of a hydrant. She argued that most of her car was legally parked, and that the pothole was outside of the no-parking zone. The court agreed with the City, finding that because she was illegally parked in violation of a City ordinance, she was not an "intended and permitted user." As a result, the City did not owe a duty to her under the Tort Immunity Act. Ramirez v. City of Chicago.

Wednesday, April 24, 2019

"Chalking" Practice in Parking Enforcement Found Unconstitutional by Sixth Circuit

In a surprising decision out of the 6th Circuit Court of Appeals, the court struck down a City's practice of "chalking" the tires of parked cars to track how long they have been parked as part of the City's parking enforcement program. Taylor v. City of Saginaw.

Like many other municipalities across the country, the City of Saginaw, Michigan's parking enforcement officers place chalk marks on the tires of parked cars, then return to the car after the posted time for parking has passed to see if the chalk marks are still there - a sign that the vehicle has not moved. If they remain, the officer issues a citation. Taylor, a frequent recipient of parking tickets, sued the City and one of its parking enforcement officers claiming that the chalking practice violated her Fourth Amendment right to be free from unreasonable search. The district court did find that the City's practice of "chalking" was a search under the Fourth Amendment, but found that the search was reasonable and dismissed the case.

Is chalking a search?

On appeal, the 6th Circuit Court of Appeals also held that the practice of "chalking" was a "search" under the Fourth Amendment. The court compared chalking a tire to the placement of a GPS device on a car, which the Supreme Court has held was a government trespass on the vehicle and a search. Similarly, the court said that that the City's placement of chalking on a vehicle's tire was a government trespass for the purpose of obtaining information. And, like the placement of a GPS device, the placement of chalk constitutes a search under the Fourth Amendment.

Was the "search" reasonable?

The 6th Circuit Court of Appeals then addressed the issue of whether the search was reasonable, acknowledging that not all government searches are unconstitutional. The district court had found the chalking practice reasonable because there is a lesser expectation of privacy in automobiles and it fell within the "caretaker" exception to the warrant requirement. The Court of Appeals disagreed with both reasons, however. First, the Court of Appeals found that the City needs probable cause to search a vehicle without a warrant, and no probable cause existed in this circumstance. Second, the City failed to show how the search related to the protection of public safety, where the parked car did not create any hazard. Instead, the purpose of chalking is to raise revenues, and not in furtherance of  public safety concerns. 

In sum, the Court of Appeals held that the City did not demonstrated that the need to deter drivers from exceeding the time permitted for parking was sufficient to justify a warrantless search. 

It's important to note that this decision is in the 6th Circuit Court of Appeals, so it does not cover Illinois. However, if a similar challenge was made in the 7th Circuit (which covers Illinois), it might provide some guidance to that Court of Appeals.

Following the release of this decision, some commentators have suggested that municipalities might avoid a similar challenge by changing to the use of photographs or chalking the street rather than the tires to document parking times. Those particular practices were not discussed or addressed in this case, but might avoid the "trespass" issue that was crucial to the Court of Appeals decision since "trespass" was defined by the Court as "physical contact" or a "physical intrusion" to the private property of another. A focus on the safety reasons for any traffic enforcement practice is also important.

Tuesday, April 23, 2019

Quorum Forum Podcast Episode 23: Arbor Day Special!

Just in time for this Friday's Arbor Day celebration, Ancel Glink has released Episode 23 of its Quorum Forum Podcast: Arbor Day Special!  A summary of this episode is below:

Make like a tree and leaf your headphones on for our Quorum Forum Arbor Day Special! Brandon Naser and Joe Hansen of Park Ridge's Forestry Division discuss Arbor Day in the City, and the important benefits trees provide the community. They also share important tree-sources from the Chicago Region Trees initiative, including a their recent 2050 Master Plan and a video encouraging tree investment

How does your community celebrate Arbor Day? Tree-mail us at podcast@ancelglink.com

Post Authored by Dan Bolin, Ancel Glink