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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, November 23, 2020

Governor Issues EO Implementing Tier 3 Restrictions


We previously reported on the Tier 3 mitigation measures that took effect on Friday and that cover the entire State of Illinois. Since the Governor's press release about the new restrictions, he issued the Executive Order 2020-73 that provides further details about the new restrictions, including guidance on some government functions and activities that will be of interest to our readers.

EO 2020-73 does not replace the Restore Illinois plan or the Tier 3 mitigation measures, so those restrictions and guidelines should be consulted as well. To the extent there is any conflict, EO 2020-73 expressly states that the more restrictive standards will apply.

The EO includes the restrictions on various businesses and activities as we described in our previous blog post about Tier 3. There are a few additional regulations and restrictions, many of which are summarized below:

Social Distancing & Face Coverings

The EO continues to mandate that people maintain a six foot distance from other individuals and wear face coverings in public places and where distancing cannot be met. 

Gatherings

The EO prohibits indoor gatherings of more than one household. Outdoor gatherings are prohibited to 10 people. The EO encourages people to conduct activities outdoors wherever possible.

Business Activities

We summarized the Tier 3 restrictions for businesses (retail, manufacturing, office, fitness, recreation, etc.) previously, so encourage you to revisit that blog post.

Exemptions

The EO contains four exemptions, summarized below. For more information about each of these exemptions, you should consult the EO.

1. Free exercise of religion. The EO does not limit the free exercise of religion. However, the EO strongly encourages religious organizations to consult and follow recommended guidelines from the IDPH, including offering online, drive-in, or outdoor services and limiting services to 10 people. 

2. Emergency functions. The EO exempts first responders, EMS, dispatchers, court personnel, law enforcement and corrections, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support the emergency response.

3. Governmental functions. The EO exempts the federal government. It also exempts services provided by the state or any municipal, township, county, subdivision, or agency of government that are needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public.

4. Election-related functions. The EO does not apply to activities related to the November 2020 election, including the meeting of presidential electors related to the Electoral College. The EO does not apply to township or municipal caucuses, and the EO expressly states that nothing in the EO prohibits caucuses from being held virtually or outdoors. 

Enforcement

The EO states that it can be enforced by state and local law enforcement pursuant to the Illinois Emergency Management Act. 

No Limitation on Authority

The EO expressly states that it is not intended to alter or modify any existing legal authority that would allow a county or local government to enact stricter provisions than those in the EO.

Wednesday, November 18, 2020

Tier 3 COVID Mitigation Measures Take Effect on Friday


It will come as no surprise to most readers, but the State of Illinois is going to see new mitigation measures to try to control the COVID-19 pandemic. As we've reported in the past, all regions in the State are currently in Phase 4, with individual regions also being subject to either Tier 1 or Tier 2 measures that restrict certain activities such as indoor dining and size of gatherings. 

Effective Friday, November 20, 2020, the entire State will be subject to Tier 3 mitigation measures. The IDPH will monitor progress over 14 day monitoring periods to determine if mitigations can be relaxed or additional mitigations are required.

Tier 3 places additional restrictions on various activities, which are detailed here. We've summarized some of these new restrictions that take effect on November 20th, as follows:

Bars and Restaurants

  • Indoor dining and bar service continues to be prohibited
  • Outdoor service, carry out,  curbside, and delivery is permitted
  • Bars and restaurants must close between 11 pm and 6 am
  • Various other restrictions on table spacing, number of guests at a table, and reservations continue
  • Indoor gaming terminals must cease operations
  • These restrictions also apply to private clubs and country clubs
Health & Fitness Centers
  • Restricted to 25% capacity
  • No indoor group fitness classes
  • Face coverings must be worn at all times, including while exercising
  • Reservations required
  • Locker rooms must close
Hotels
  • Hotel occupancy restricted to registered guests only
  • Fitness centers must close or operate by reservation only and at 25% capacity
  • "Grab and go" food allowed
  • Event and meeting space must close
Indoor Recreation, Theaters, and Cultural Institutions
  • All gaming and casinos must close
  • Theaters, performing arts centers, museums, and amusements centers must close 
  • Outdoor activities allowed at 25% capacity, and limited to 10 persons or less, with face coverings worn at all times
  • Reservations required for outdoor activities
Organized Group Recreational Activities
  • Indoor group sporting and recreational activities, including youth and adult sports, must pause (includes park districts and travel leagues)
  • Outdoor sports and recreation allowed but limited to 10 persons or less with social distancing
  • Face coverings required for all activities at all times
  • Locker rooms must close
Personal Care Service
  • 25 clients or 25% capacity
  • Face coverings required at all times by clients and providers
  • Suspend those services where face covering cannot be worn
  • Physical, occupational, and massage therapy allowed if deemed necessary by medical provider
Meetings, Social Events & Gatherings
  • Home gatherings limited to household members only
  • Meeting rooms, banquet centers, private party rooms, private clubs, and country clubs may not host gatherings
  • Funerals limited to 10 family members
Retail
  • General merchandise stores, big box stores that offer groceries and pharmacy, and convenience stores limited to 25% capacity
  • Grocery stores and pharmacies limited to 50% capacity 
  • Encourage delivery or curbside delivery
Office
  • All employees who can work remotely should work remotely
Government
  • Except where specific guidance is provided for certain operations, governments may continue regular operations but are encouraged to voluntarily take steps to support new mitigation strategies, including limiting customer service to 25% capacity and maximizing work from home

Monday, November 16, 2020

Appellate Court Invalidates Kane County Court's TRO Regarding Indoor Dining Restrictions


There have been a number of lawsuits brought against Illinois Governor Pritzker relating to recent mitigation measures taken to address the COVID-19 pandemic. Some of these lawsuits included claims brought by restaurants to challenge bans on indoor dining and bar service. One case made its way to the Second District Appellate Court which issued a ruling last week invalidating a TRO that was issued by a trial court to stop the enforcement of the Governor's mitigation measures against a Geneva restaurant. Fox Fire Tavern, LLC v. Jay Robert Pritzker

On October 21, 2020, the Governo issued EO 2020-61 imposing mitigation measures on four Illinois counties, including Kane County. These measures required all restaurants and bars to cease indoor service. Fox Fire Tavern filed a lawsuit and a motion for a TRO to block enforcement of the new mitigation measures. The trial court had granted the restaurant's motion and entered a TRO against enforcement of the mitigation measures against the restaurant, finding that the Governor lacked statutory authority to address the pandemic through consecutive disaster prcoclamations. The Governor, IDPH, and the Kane County Health Department appealed to the Second District Appellate Court.

In invalidating the trial court's TRO, the Appellate Court found that state statute does provide authority to the Governor to issue successive proclamations arising from a single, ongoing disaster. First, the Illinois Emergency Management Agency Act contains no provision restriction the Governor from issuing multiple declarations - the language simply prohibits the length of any one declaration to "a period not to exceed 30 days". Second, where the legislature wanted to restrict consecutive orders, the IEMA expressly said so, such as the language that prohibits a Mayor from issuing successive disaster declarations without City Council approval. In short, the Court found that the trial court's interpretation was too narrow in reading parts of IEMA in isolation from other parts of that same statute.

The Court also referenced subsequent legislative changes to other statutes (including the Unemployment Insurance Act and the Election Code) that include express reference s to subsequent disaster proclamations as evidence that the legislature contemplated the Governor issuing successive disaster proclamations. 

Finally, the Appellate Court addressed the policy arguments presented by the restaurant association and other amici who filed briefs in support of the restaurant's case. These "friends of the court" argued that the restaurant industry had been unfairly targeted for shutdowns and that they would suffer extreme hardships from the stricter regulations. The Court stated that it was not tasked with considering the wisdom behind the Governor's additional restrictions, or questioning the policy. Instead, the Court said its task was to determine whether the Governor has the authority to issue successive disaster proclamations for the COVID-19 pandemic, which the Court found he does.

Wednesday, November 11, 2020

Reminder: IMRF Website Posting Requirements Deadline of January 1, 2021


Earlier this year, we wrote about Public Act 101-0504, which amended the Illinois Pension Code. This new law requires certain website posting requirements for the Illinois Municipal Retirement Fund (IMRF) and participating municipalities.

Municipalities participating in the IMRF that maintain a website must post a link to the IMRF’s “Employer Cost & Participation Information” webpage on their websites by no later than January 1, 2021. Participating municipalities are encouraged to add this link to their websites before January 1, 2021. Notably, the new law does not require participating municipalities without a website to maintain or establish a website.  

The IMRF has also already started posting information required by the new law on their website regarding municipalities’ participation in IMRF. This information includes resolutions adopted by a municipality to participate in IMRF on or after January 1, 1995, an annual report listing the date each municipality first began participating in the IMRF, and documents pertaining to each municipality’s annual projected future contributions and past-required contributions. The IMRF is not required to post information on its website that would be exempt under the Illinois Freedom of Information Act.

To read our prior post on this new law, please click HERE

Post Authored by Eugene Bolotnikov, Ancel Glink


Tuesday, November 10, 2020

Is Video Gaming Permitted During COVID-19 Mitigation Measures?


As you know, the Governor has recently imposed further mitigation measures throughout the State of Illinois regarding the COVID-19 pandemic. Some regions are currently in Tier 1, which bans indoor dining and indoor bar service and restricts gatherings to 25 people, among other restrictions. Other regions are currently, or will be shortly, in Tier 2, which also bans indoor dining and indoor bar service and restricts gatherings to 10 people, among other restrictions. 

One question that has been raised is whether a restaurant or bar that offers video gaming must also cease all gaming activities while the region is subject to these mitigation measures that ban indoor dining and indoor bar service. The DCEO posted a FAQ on this very issue on November 9, 2020. In short, video gaming activities can continue, subject to certain conditions. The FAQ is reprinted below:

Is video gaming permitted at bars, restaurants and other licensed video gaming locations in areas under mitigation? 

Yes, but only under the following conditions: 

  • Gaming is limited to within the hours of 8:00 AM to 11:00 PM daily, with no exceptions
  • Food and beverage service in the gaming area is suspended (curbside and carry out is permitted if otherwise authorized) 
  • Masks must be worn at all times in the gaming area 
  • Congregating around video gaming terminals is prohibited and there is a one person per video gaming terminal limitation 
  • Existing social distancing, sanitizing and other mitigation protocols and measures in approved Terminal Operator Pandemic Resumption Plans remain in effect along with other applicable protocols and directives from the Illinois Gaming Board 
  • Failure to comply with mitigation efforts and restrictions could subject licensees to discipline from the Illinois Gaming Board, up to an including license revocation


Monday, November 9, 2020

Court Rules on Reasonable Accommodations in Code Enforcement Case


In City of Harvard v. Nevitt, the Illinois Appellate Court ruled in favor of the City in a code enforcement case against a resident, rejecting the resident's argument that the City should have provided a reasonable accommodation for his wife's disability under the Americans' with Disabilities Act (ADA) or the Fair Housing Amendments Act (FHAA).

In December 2018, a resident of the City of Harvard applied for a permit requesting the City allow him to place a two-yard-long dumpster on his property, which otherwise violated a city ordinance. The resident had met with a City code enforcement officer to request a dumpster permit, but did not submit a formal written application. The City officer denied the resident's dumpster permit request.

In January 2019, the City discovered a two-yard dumpster on the resident's property prompting the City to issue a notice of violation. By May 2019, the City issued a “notice to abate nuisance” letter to the resident about the dumpster. And between May and July 2019, the City issued seven citations to the resident for violating the City ordinance. In June 2019, the City filed a complaint in court to enforce its ordinance, alleging the resident maintained a private nuisance on his property—the two-yard-long dumpster.

At trial, the resident stated that he was denied the dumpster permit after discussing the issue with the City. They said they requested the dumpster because the resident's wife is disabled. The City code enforcement officer, however, testified that Nevitt and his wife never mentioned the wife's disability during their meeting. Instead, Nevitt's wife referenced the need for the dumpster for a home business, which she acknowledged on cross-examination. The court found the defendant guilty of violating the ordinance and imposed a $1,250 fine, plus costs. The court also found that the defendant did not notify the City of the wife's disability.

On appeal, the court upheld the trial court's ruling. The appellate court did not find evidence in the record showing proper written notice was provided to the City regarding Nevitt's wife's disability. Further, neither Nevitt nor his wife could produce copies of documentation showing they notified the City. The record indicated, however, that after the defendant placed the non-compliant dumpster on the property, the Nevitt’s standard-issued garbage cans were still being rolled to the curb for garbage collection. In sum, the appellate court agreed with the trial court's ruling in favor of the City.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


Thursday, November 5, 2020

6th Circuit Court of Appeals Rules on Social Media Case


Early last month, the 6th Circuit Court of Appeals issued a ruling in a case filed by a City employee who was terminated for posting a comment on Facebook after the City determined that the comment was racially charged. In Bennett v. Metropolitan Government of Nashville and Davidson County, the Court of Appeals upheld the government employer's termination of the employee for the social media conduct. 

In 2016, Bennett, a government employee, posted a racial slur on her personal Facebook account right after the 2016 General Election. Bennett was an emergency dispatcher of the Metro Government Emergency Communications Center (ECC). Bennett’s Facebook referenced that she was a Metro Government employee and included information that she was a dispatcher at the ECC. After friends expressed concerns about the post, she deleted it from her Facebook post; however, several of her coworkers had already seen the post before it was deleted and reported the activity to department supervisors. 

When approached by supervisors about the incident, Bennett stated she made the comment in jest. Supervisors expressed concern about the racially charged comment and noted its impact on an agency that regularly interacts with the public. Bennett was placed on paid administrative leave while an investigation was conducted. An administrative hearing found that Bennett violated three provisions of the ECC's social media policy, and she was terminated.

Bennett filed a lawsuit against her employer in federal court claiming that the termination violated her First Amendment rights. The case went to trial, and a jury found in Bennett's favor, holding that her Facebook comment was not reasonably likely to impair discipline by Bennett’s supervisors at ECC, interfere with the agency’s orderly operation, or impede Bennett’s job duties. The jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment. 

ECC appealed to the 6th Circuit Court of Appeals, which overturned the district court's ruling in favor of Bennett. The Court of Appeals applied the Pickering balancing test (a Supreme Court ruling that balances the weight of an employee’s speech with the weight of a government agency’s ability to maintain operations) and concluded that Bennett’s use of a racial slur was not protected speech under the First Amendment. 

The Court of Appeals also noted that the record showed that Bennett exhibited little to no remorse for her use of the slur. She even called her fellow employee’s hypocrites and stated she would not apologize because some employees took her use of the slur the wrong way. The Court also found that Bennett’s use of the slur was detrimental to the ECC’s close working relationships, and the use of the slur “detracted from the mission of ECC” as an agency that provides vital services to constituents. A critical determination in the case was that Bennett’s comment was made on her public-pacing profile while listing her employer as ECC. The court found that if her Facebook profile were private, it would have diminished the argument for her termination.

Finally, the Court rejected Bennett’s argument that the comment was political because she used the slur while discussing the outcome of the presidential election the day after the results were released. Her employer conceded Bennett was making a political statement on the post but argued that use of the slur was “not purely political” and should not have garnered a high level of protection from the trial court. The Court of Appeals agreed and found that Bennett’s speech did not reach the highest level of protection. 

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


Wednesday, November 4, 2020

IICLE Local Government Law Institute 2020 Seminar


Calling all local government lawyers!  One month from today, the Illinois Institute for Continuing Legal Education (IICLE) will be hosting its 8th annual Local Government Law all-day seminar, which will be conducted entirely remotely this year. More information about this year's seminar is below:

Title: Local Government Law Institute

Date/Time:  December 4, 2020 from 8:45 to 4:45

Place: Webinar

Description of Sessions:

  • Local Government Emergency Playbook
  • Courts, the General Assembly, and Congress: A Status Call   
  • Statements of Economic Interest Primer
  • Best Practices for Virtual Board Meetings and Public Hearings 
  • Lunch Panel: Bells That Can’t Be Unrung After COVID-19 
  • New Developments Concerning Police and Law Enforcement 
  • Navigating First and Second Amendment Rights in the Face of Modern Social Upheaval: COVID, Police, Protests, Civil Unrest, and the 2020 Election 
  • Election Law Update 
  • Law and Economics: COVID-19 Economic Development and Municipal Finance Updates 

The seminar qualifies for 7.25 hours of Illinois CLE, with 2 hours of general PR credit.

You can read the agenda and brochure here and register for the seminar here.

Monday, November 2, 2020

Join us Today at Noon for a Live Election Podcast!


 Quorum Forum 46: 2021 Election Special!

With the 2020 general election campaigns drawing to a close this week, preparations for the 2021 local government elections are well underway. Today at noon (Monday, November 2, 2020), we'll welcome Ancel Glink Attorney Ken Menzel to the podcast to discuss common areas of confusion and important things to know about the upcoming local government elections. Bring your questions and join our livestream on youtube.com/ancelglink

If you can't attend live, don't worry - we will be posting the recording of this livestream on our Quorum Forum Podcast in the next week, so stay tuned.


Thursday, October 29, 2020

Tier 1 Mitigation Measures Announced for Lake and McHenry Counties Effective Saturday


If it seems like we are reporting every day on new COVID-19 mitigation measures, that's because we are.  New mitigation measures are being announced by the State of Illinois nearly every day and yesterday was no exception. The Illinois Governor announced that tier 1 mitigation measures will take effect on Saturday, October 31st, in Lake and McHenry Counties (Region 9). As we have reported on nearly every day this week, tier 1 mitigation measures include bans on indoor dining and bar service and restrictions on gatherings to 25 people. With this announcement, 8 of the 11 Illinois regions are now subject to stricter mitigation measures.

New Mitigation Measures Announced for Chicago


Just a few days after we wrote about new mitigation measures for Suburban Cook County and the St. Louis area, the State announced new mitigation measures for the City of Chicago (Region 11), effective Friday. The tier 1 restrictions are the same as what we reported on with these other regions - no indoor dining or bar service and restrictions on gatherings, meetings, and events to 25 people. That leaves only 4 regions in the State of Illinois (out of 11) that remain in Phase 4 with no mitigation measures in place.

Wednesday, October 28, 2020

Illinois Attorney General to Host FOIA Webinar


The Illinois Attorney General’s Office will host a webinar on November 6, 2020 from 10:00 a.m. to 12:00 p.m. to help public bodies and FOIA officers with responding to requests for records under the Freedom of Information Act (FOIA).

The webinar will cover basic FOIA requirements, frequently used exemptions, redacting information, and responses to request public records. The webinar will also discuss the Public Access Counselor (PAC) review process and common issues reported by the PAC.

To RSVP, email your name, title, public body, and email address to specialevents@atg.state.il.us by October 30, 2020. Space is limited, so the Attorney General’s Office encourages interested participants to register as soon as possible.

Participants may email FOIA questions in advance to specialevents@atg.state.il.us and contact the Attorney General with any other questions or requests for reasonable accommodations at specialevents@atg.state.il.us or calling 1-866-376-7215 (TTY: 1-800-964-3013).

Post Authored by Mike Halpin & Dan Bolin, Ancel Glink


Tuesday, October 27, 2020

Homeowner Prevails in Zoning Case Against Neighbor


An Illinois Appellate Court recently upheld an injunction against a residential property owner operating a boarding house and a vehicle parking and storage facility in an Adjoining Landowner Act lawsuit (65 ILCS 5/11-13-15) brought by a neighboring resident. Frederick v. Gaca.

Frederick filed a lawsuit against his neighbors alleging a variety of claims regarding the use of residential property next door to his home. In his lawsuit, Frederick alleged the home's six bedrooms were rented out to various individuals and operated as a boarding house. He also claimed there were approximately 20 vehicles parked or stored on the property at any one time, including cars, pickup trucks, delivery trucks, and a heavy-duty work truck. According to the lawsuit, some of the parked vehicles were tenant vehicles and others were parked or stored under separate arrangement or agreement, including the payment of parking and storage fees. In support of his claims, Frederick submitted affidavits from former tenants and users of the parking and storage facility that demonstrated the illegal uses. Frederick claimed that these uses constituted a public nuisance and violated various provisions of the City of Naperville zoning ordinance. 

The trial court ultimately ruled in favor of Frederick, entering a permanent injunction stopping the defendants from operating a boarding house or a parking or storage facility on the residential property. 

The defendants appealed, and the Appellate Court upheld the injunction, finding that the evidence clearly established that the property was being used in violation of numerous provisions of the Naperville zoning ordinance. The Appellate Court also rejected the defendants argument that the parking and storage facility was a lawful "home occupation." The Appellate Court concluded that Frederick met his burden under the Adjoining Landowner Act to establish the unlawful use of the neighboring property, and the trial court's injunction was upheld.




Monday, October 26, 2020

Mitigation Measures Imposed on Suburban Cook and Metro East Regions


We reported last week on a variety of new mitigation measures imposed by the State of Illinois on certain regions in the state. Today, the State announced new mitigation measures for Regions 4 (Metro East) and 10 (Suburban Cook County. These measures include bans on indoor dining and indoor bar service, and restrictions on meetings, events, and gatherings to 25 people. These new restrictions go into effect on Wednesday, October 28th.  You can read the tier 1 restrictions here

In addition, the State imposed a second tier of restrictions on Region 1 (Northcentral and Northwest Illinois, including Rockford) last week. The previous ban on indoor dining and bar service remains in place, but outdoor table seating is now restricted to 6 people and meetings, events, and gatherings are restricted to 10 people. There are also new restrictions on organized recreational activities. These tier 2 restrictions went into effect on October 25th. You can read the new tier 2 restrictions here.

DCEO keeps track of the current mitigation measures imposed on each region here

Deadline of October 31, 2020 for Discrimination and Sexual Harassment Reporting


During the last legislative session, the Illinois General Assembly passed the Workplace Transparency Act (WTA), which overhauled sexual harassment reporting and training requirements across the State of Illinois for employers, including units of government. Initially, the law required employers to report the number of adverse judgments issued in 2019 on July 1, 2020. Recently, the Illinois Department of Human Rights (IDHR) extended its deadline requiring employers to report all cases of “adverse judgments” regarding instances of alleged discrimination or sexual harassment in the workplace to October 31, 2020. This initial rule change does not affect reporting requirements moving forward.

The WTA defines an adverse judgment or “administrative ruling” as “any final and non-appealable judgment that finds sexual harassment or unlawful discrimination” in the employee’s favor and against the employer. These judgments can include decisions by the Illinois Human Rights Commission, Cook County Commission on Human Rights, Chicago Commission on Human Rights, or a decision by an Illinois Circuit Court. Rulings also include any final judgments by a federal court regarding employment discrimination that are no longer appealable under Title VII of the Civil Rights Act of 1964, Age Discrimination Employment Act (ADEA), or the Americans with Disabilities Act (ADA).

Employers are strictly prohibited from reporting the name of a victim of an alleged act of sexual harassment or unlawful discrimination in all required disclosures. Employers are not required to report settlements to the IDHR. Employers with no adverse judgments during the 2019 calendar year are not required to report that information to IDPH—only employers with adverse judgments must report them.

Employers can download and complete the adverse judgment form (2019 Form IDPH 2-108) here and email it to idhr.webmail@illinois.gov on or before October 31, 2020. Civil penalties for not reporting adverse judgments range from $500 to $5,000 depending on the number of workers employed by the employer and the number of offenses for failing to report.

Readers can learn more about the deadline change here and read more about the WTA on the Illinois General Assembly’s website here.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Thursday, October 22, 2020

Public Body Did Not Waive Ability to Redact Records in FOIA Case


In a recent court ruling, the First District Appellate Court concluded that the Schaumburg Police Department did not waive its right to redact accident reports in response to a FOIA request even though the Department had previously provided unredacted copies of the same reports to a third-party vendor in order to comply with the Department's mandatory reporting obligations under the Vehicle Code. Mancini Law Group, P.C. v. Schaumburg Police Dep't,

Mancini Law Group, P.C. had sent a FOIA request to the Department seeking certain 2017 motor vehicle traffic accident reports. After the Village responded to the request by producing redacted accident reports, Mancini sued the Department, claiming the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department previously provided unredacted accident reports to LexisNexis. The circuit court held that the Department’s redactions were proper and that the Department did not waive its right to redact the reports in response to Mancini’s FOIA request because the Department only provided unredacted accident reports under a contract with LexisNexis, an approved third-party vendor for the State of Illinois, as part of the Department’s mandatory reporting requirements under section 408 of the Illinois Vehicle Code. That statute requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation. Mancini then appealed to the First District Appellate Court, which affirmed the circuit court’s judgement.

On appeal, Mancini argued that the Department’s voluntary disclosure of unredacted accident reports in one situation precluded the Department from withholding the same reports in response to Mancini’s FOIA request. Mancini relied on an Illinois Supreme Court's ruling that endorsed federal cases holding that “selective disclosure” by public bodies is offensive to the purposes of FOIA and intolerable as a matter of policy because “preferential treatment of persons or interest groups fosters precisely the distrust of government the FOIA was intended to obviate.” However, since LexisNexis was acting as the Department’s agent to help the Department fulfill its statutory reporting requirements, the appellate court concluded that the Department’s efforts to comply with a statutory reporting requirement were not comparable to the  “selective disclosure,” or “preferred treatment” condemned by the Illinois Supreme Court.

The appellate court also rejected Mancini claim that LexisNexis sells the Department’s unredacted reports for a fee to the public without restrictions, observing that only people providing specific information can purchase unredacted accident reports—either by being involved in the accident, representing someone involved in the accident, or being an insurance company identified as insuring someone involved in the accident.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, October 21, 2020

State Imposes New Restrictions on Illinois Regions


Regions 7 and 8 (Will, Kankakee, Kane, and DuPage Counties)

This afternoon, the Governor announced new mitigation efforts for Regions 7 and 8, which take effect on Friday, October 23, 2020. Region 7 includes Will and Kankakee Counties and Region 8 includes Kane and DuPage Counties. According to the Governor's press release, both regions have shown a positivity rate higher than 8%. 

The mitigation measures are the same for both Regions, and include the following:

Bars:  No indoor service at bars, and outside service must end at 11:00 p.m. Restrictions also include social distancing, table distancing, no dancing or standing indoors, and no seating of multiple parties at one table.

Restaurants:  No indoor dining at restaurants, and outdoor dining must end at 11:00 p.m. Other restrictions include table distancing, no standing or congregating indoors while waiting for a table, reservations required, and no seating of multiple parties at one table.

Meetings, Social Events, and Gatherings: Limited to lesser of 25 guests or 25% of the room capacity, no party buses, and casinos and gaming must end at 11:00 p.m. and limited to 25% capacity. 

Region 5 (Southern Illinois)

Earlier this week, new mitigation measures were announced for Region 5 (Southern Illinois) that place the same restrictions discussed above for Regions 7 and 8, and take effect on Thursday, October 22, 2020. 

Region 1 (Northwestern Illinois, including Rockford area)

At the beginning of October, similar mitigation measures were imposed on Region 1, which remain in effect. 

Regions 4 and 7 (Metro East and South Suburban)

In August, we reported on mitigation measures imposed on Regions 4 and 7. Those mitigation measures were lifted in September but yesterday's announcement means that this is the second time Region 7 is being restricted. 

Monday, October 19, 2020

Court Issues Ruling in Lawsuit Challenging Election Day Closures


Last week, an Illinois circuit court issued a ruling in the case brought by the Illinois Municipal League (IML) against the State of Illinois to challenge the recent statute making November 3, 2020 (Election Day) a state holiday and requiring local government offices to close. The IML had argued that it was an unfunded mandate to municipalities, and the circuit court agreed in its ruling last week.

We have been asked whether the ruling extends beyond the two municipalities that were named as plaintiffs in the case (Southern View and Bolingbrook) to apply to other local governments. The ruling states that the statutory amendment that requires government offices to close on Election Day (i.e., Section 2B-10) "does not apply to local governments such as municipalities - including those municipalities that are members of IML and specifically, the Villages of Southern View and Bolingbrook." The IML has advised that the ruling provides each of its member municipalities the independent discretion to determine if their offices should or should not be closed on Election Day. The ruling itself seems broader in application, as it refers to "local governments" and not just municipalities. An appellate court ruling (or better yet, a statutory fix) would certainly help to provide some clarity, but given the short time period until Election Day, that may be unlikely. Local governments may want to reach out to their attorneys if they have questions about the ruling and how it applies to them.

You can read the decision on the IML's website here.  You can also read the IML's summary of the lawsuit and ruling here.

Friday, October 9, 2020

Qurum Forum Podcast 45: Housing and Homelessness


Planners and land use professionals will be interested in tuning into the most recent episode of Quorum Forum, Episode 45: Housing and Homelessness.  In this episode, partners David Silverman and Dan Bolin discuss the latest on accessory dwelling units, recent constitutional challenges to local ordinances affecting homeless populations, and answer questions about the latest legal issues affecting governments. 

You can watch the livestream recording here or listen and subscribe to the Quorum Forum Podcast here.  


Wednesday, October 7, 2020

IDPH COVID Guidance for Election Polling Places


Awhile back, the Illinois Department of Health (IDPH) issued COVID-19 guidance for election polling places. You can read the guidance on the IDPH's website here. A summary of some of the key provisions are below:

1. Each local election authority (usually the county or election commission) must adopt a written COVID-19 prevention plan for each polling place in its jurisdiction that includes at a minimum the following:

  • Contact person for implementation of plan
  • Safety instructions and training on cleaning and disinfection
  • Physical distancing protocols
  • Worker monitoring plan
  • Policies for ensuring compliance with social distancing, mask wearing, and disinfection of all affected surfaces
2. Placement of signage at entrances regarding face coverings

3. Distancing of election officials and pooling booths at least 6 feet apart

4. Visual cues for social distancing of voters

5. Designated break areas that allows physical distancing

6. Consider outdoor enclosures for waiting voters or encourage voters to wait in cars

7. Consider curbside voting, if practical

8. Ensure ventilation systems are operating properly

9. Replace shared objects (pens, cards, ballot covers) with single-use objects, where possible

10. Provide face coverings for voters who arrive without them

11. Voters cannot be screened for COVID-19 at the polling place nor prohibited from voting even if they refuse to wear a face covering

12. Consider plexiglass barriers

13. Routine cleaning and disinfecting of electronics and frequently touched objects and surfaces

14. Provide hand sanitizer to voters

15. Poll workers must wear a face covering at all times and practice good hygiene (hand washing; hand sanitizer)


Tuesday, October 6, 2020

Upcoming APA Webinar on Drones


APA Planning and Law Division in partnership with APA Learn is presenting a webinar on October 22nd on Drones. Information about the webinar and registration is below:

Sky's the Limit: Drone Regulatory Implications

Thursday, October 22, 2020 

12:00 p.m. - 1:30 p.m. CT

CM and CLE credit

Aerial drones (sometimes described as “UAS” or “UAV”), have a host of planning applications across urban, regional, rural, and agricultural geographies. From a general aerial surveying perspective, these applications frequently include site analysis and visualization, GIS mapping and modeling, and photosimulations. 

Sub-disciplines within the planning field such as transportation, environmental, and disaster planning already utilize small drones’ aerial sensors for real-time data collection, infrastructure inspection, project management, and project development. These technologies can facilitate new ways of practicing community engagement. Given the broad applications of this technology across multiple planning disciplines, there is a general need for planners to enhance their awareness of relevant federal regulations, administrative guidance published by the Federal Aviation Administration, and court cases that collectively define the legal operation of small drones. Essentially, if you plan to use this technology in your planning practice, you must know the rules. 

While acknowledging there are still significant gaps in the legal landscape for small drone operation, this program will discuss useful precedents to help you develop a use-case that is most likely to protect your planning practice and elected officials.. Even though state and federal legislatures continue to debate the regulatory environment to operate small drones, there is some present-day certainty regarding what state and local government can — and cannot — regulate. 

Our expert panelists will explain the ways in which your city or state planning department could use small drones to enhance your planning efforts, prepare you to navigate the risks in the grey area, and offer insight on how to avoid the pitfalls.  


Information about speakers, cost, and registration can be found here.


Monday, October 5, 2020

IDPH Releases Halloween Guidance


We reported previously about the CDC's guidance on fall holidays, including Halloween. The Illinois Department of Public Health (IDPH) has now released its own guidelines for fall activities, which supplement the recently-updated DCEO guidance on other seasonal staples, such as pumpkin patches, hayrides, and haunted houses. 

Trick-or-Treating

Trick-or-treating is allowed, provided that groups are limited to household members, social distancing is maintained from other trick-or-treaters and people passing out candy, and that face coverings are worn in addition to any costume masks. The IDPH advises sticking to outdoor areas rather than multi-family buildings, frequent use of hand-sanitizer, and handwashing prior to consuming any candy. The IDPH also suggests some safer alternatives to traditional trick-or-treating. Instead of passing out candy at the door, the IDPH recommends putting out individually wrapped treats on a table more than six feet from the front door so that trick-or-treaters may help themselves. This method is also recommended in other settings, such larger-scale organized events involving tables set up with carefully-spaced candy in parking lots to avoid door-to-door travel.

Haunted Houses

Haunted houses are not allowed. The IDPH encourages open-air, one-way haunted forests or haunted walks where social distancing of 6 feet or greater and appropriate masking is enforced as an alternatives. Really scary haunted walks require increased social distancing due to the potential for screaming.

Pumpkin Patches/Apple Orchards

Attendance at outdoor pumpkin patches and apple orchards is limited to 25% capacity, with advance-purchase tickets advised. Indoor areas or rides of the sort that are sometimes featured at such locations must remain closed. Face coverings and social distancing are mandatory.

Hayrides

Hayrides are permitted up to 50% capacity with social distancing and face coverings required. The DCEO and IDPH both advise limiting hayride participants to members of the same household.

Adult Halloween Parties

The IDPH warns against large-scale parties and reiterates the 50-person limit for gatherings. While peole can visit bars (subject to regional or local restrictions), the IDPH provides a list of reasons why partaking in indoor costume parties is a bad idea and suggests avoiding such events, or minimizing the amount of time spent, together with the usual reminders to adhere to social distancing and face covering requirements.


Friday, October 2, 2020

Quorum Forum Podcast 44: APA-IL Planning Law Symposium


Ancel Glink's Quorum Forum Podcast just released its latest episode, Episode 44: APA-IL Planning Law Symposium.

The Illinois Chapter of the American Planning Association just held its virtual 2020 State Conference featuring the APA-IL Planning Law Symposium presented by Ancel Glink's Quorum Forum podcast. Trevor Dick from the City of Aurora joined Ancel Glink partners ShawnTe Raines, David Silverman, and Dan Bolin to discuss important legal issues affecting planners, including pandemic-time public meetings, economic recovery tools, defending religious land use cases, and more. 

You can listen to the APA-IL Planning Law Symposium on the latest episode of Ancel Glink's Quorum Forum podcast here.

Tuesday, September 29, 2020

PAC Says List of Blocked Social Media Users is Subject to FOIA


In a recent advisory opinion, the PAC office of the Illinois Attorney General found a public body in violation of FOIA because it failed to turn over records pertaining to blocked Twitter and Facebook accounts and users. The requester had filed a FOIA requesting a list of all persons or users who had been blocked on the village's social media accounts. The village denied the request saying it had no responsive records. The requester claims he then forwarded to the village a screenshot of his own account showing he had been blocked from the village's account. Shortly thereafter, he filed a request for review with the PAC.

The village argued that the requested records were not public records because they are maintained by the third party social media providers. The village also argued that compiling those records would require the creation of new records which is not required by FOIA. The PAC disagreed, finding that (1) the records are public records and (2) the village could download the information through a link which did not constitute the creation of records, in the PAC's opinion. 2020 PAC 63566

In what seems to be "dicta," the PAC also appeared to suggest that the village violated FOIA by not preserving lists of any accounts it had blocked. As we all know, FOIA is not a records retention statute - records retention and preservation obligations are contained in the Local Records Act. The Local Records Act is not within the PAC's jurisdiction, which is limited to FOIA and Open Meetings Act. It does not appear from the opinion that the village actually destroyed records which could be relevant under FOIA. Instead, the PAC seemed focused on the village's records retention obligations, which is a topic more properly addressed by the State Archivist or Local Records Commission.

The key takeaway is that social media records pertaining to blocked users or accounts will be considered public records by the PAC subject to release under FOIA. 

Monday, September 28, 2020

PAC Finds City Council Violated OMA in Call Updates on Pandemic Actions


As has been widely reported by local news, the Public Access Counselor (PAC) office of the Attorney General recently issued an opinion finding the City of Chicago City Council in violation of the Open Meetings Act for allegedly conducting phone meetings with a majority of a quorum of the Council outside of a noticed meeting. 2020 PAC 62918

ProPublica Illinois filed a request for review with the PAC claiming that the City Council had held a number of meetings by phone without complying with the OMA. The City responded that the calls were informal briefings about pandemic-related issues and did not constitute the discussion of public business to trigger the OMA. The City argued that the calls consisted of updates on public safety matters that were informational in nature, and did not include any discussion or deliberation of public business.

The PAC disagreed with the City, finding that all but one of the phone calls constituted a meeting that required compliance with the OMA (one of the challenged meetings did not involve a majority of a quorum of the Council so did not trigger a meeting). The PAC stated that public business under the OMA is not restricted to only those topics that public bodies take action on during a gathering but also includes information exchanged relating to matters that public bodies could potentially act on in the future, regardless of whether action is ultimately taken. As a result, the PAC found the City Council in violation of the OMA and ordered the City to make available for public inspection copies of summaries of these calls.






Thursday, September 24, 2020

Class Action Challenging Chicago's Water Main Replacement Program Dismissed


The Illinois Supreme Court recently held that the trial court properly dismissed a class action lawsuit against the City of Chicago that had claimed that the City's water main replacement program increased the risk of harm to the plaintiffs of lead poisoning. Specifically, the Supreme Court determined that the plaintiffs did not establish that they suffered any bodily harm by any alleged negligence by the City, and that plaintiffs could not recover solely on their claim that the City's project increased their risk of harm. The Court also dismissed the plaintiffs inverse condemnation claims finding that the plaintiffs did not allege that the service lines were rendered unusable or that they were unfit for human use as a result of the replacement program, meaning they failed to show any measurable, pecuniary harm caused by the repair work.  Berry v. City of Chicago.

Tuesday, September 22, 2020

Halloween Guidance Posted by CDC


Illinoisans have not yet received official guidance from the State of Illinois on Halloween activities and events. However, yesterday the CDC posted guidance about Halloween activities and other fall holidays on its website that may be of interest to readers.

The CDC has assigned various levels of risk to Halloween-related activities. For those wondering how traditional trick-or-treating will be categorized (or its close cousin, "trunk-or-treat"), the CDC has assigned these activities to its "high risk" category. Hayrides, indoor costume parties, and indoor haunted houses are similarly assigned to the high risk category of activities.

The CDC notes that traditional costume "masks" are not a substitute for face coverings used to protect against the virus but also warns against wearing a cloth face covering under a traditional costume mask if that makes it harder for the individual to breathe.

You can find the entire guidance here, but we have reprinted a summary of common Halloween activities and where they fall within the CDC's assigned categories of risk:

Lower risk activities

  • Carving or decorating pumpkins with members of your household and displaying them
  • Carving or decorating pumpkins outside, at a safe distance, with neighbors or friends
  • Decorating your house, apartment, or living space
  • Doing a Halloween scavenger hunt where children are given lists of Halloween-themed things to look for while they walk outdoors from house to house admiring Halloween decorations at a distance
  • Having a virtual Halloween costume contest
  • Having a Halloween movie night with people you live with
  • Having a scavenger hunt-style trick-or-treat search with your household members in or around your home rather than going house to house

Moderate risk activities

  • Participating in one-way trick-or-treating where individually wrapped goodie bags are lined up for families to grab and go while continuing to social distance (such as at the end of a driveway or at the edge of a yard)
  • Having a small group, outdoor, open-air costume parade where people are distanced more than 6 feet apart
  • Attending a costume party held outdoors where protective masks are used and people can remain more than 6 feet apart
  • Going to an open-air, one-way, walk-through haunted forest where appropriate mask use is enforced, and people can remain more than 6 feet apart
  • Visiting pumpkin patches or orchards where people use hand sanitizer before touching pumpkins or picking apples, wearing masks is encouraged or enforced, and people are able to maintain social distancing
  • Having an outdoor Halloween movie night with local family friends with people spaced at least 6 feet apart.

Higher risk activities

  • Participating in traditional trick-or-treating where treats are handed to children who go door to door
  • Having trunk-or-treat where treats are handed out from trunks of cars lined up in large parking lots
  • Attending crowded costume parties held indoors
  • Going to an indoor haunted house where people may be crowded together and screaming
  • Going on hayrides or tractor rides with people who are not in your household
  • Using alcohol or drugs, which can cloud judgement and increase risky behaviors
  • Traveling to a rural fall festival that is not in your community if you live in an area with community spread of COVID-19

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.

EEOC UPDATES ITS CORONAVIRUS GUIDANCE

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. 

Monday, August 24, 2020

President Trump Appeals Twitter Case to the U.S. Supreme Court


Last Thursday, President Trump filed a petition for leave to appeal asking the U.S. Supreme Court to overturn a previous ruling by an appeals court that found his actions in blocking and banning users on Twitter to be in violation of the First Amendment. You can read the petition here.

The question that President Trump is asking the U.S. Supreme Court to answer is this:

Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.

You may recall that we have reported on this case on Municipal Minute before, including a summary of the Second Circuit Court of Appeals ruling against President Trump. You can read the Second Circuit's decision in Knight First Amendment Institute v. Donald J. Trump hereThat ruling determined that because the President had used his @RealDonaldTrump Twitter account to discuss government business and report on and even take official actions, it was considered a public forum for purposes of the First Amendment. As a result, his banning and blocking individuals solely because of their critical speech violated their free speech rights under the First Amendment.

The petition to the Supreme Court contains much of the same arguments made at the court of appeals level. The petition includes a summary that argues that the court of appeals ruling was in error because it "blurs the line between state action and private conduct" and ignores the critical distinction between the President's official statements on his personal Twitter account and his personal decision to block users from his account. The result, the President argues, is to jeopardize the right of public officials from the President to local village councilpersons to insulate their personal social media accounts from harassment, trolling, or hate speech. A similar argument was made to, and rejected by, the court of appeals which determined that because the President had so intertwined his official speech and actions on his personal Twitter account, it became a protected space for users to criticize and engage in other protected speech.

We had been monitoring this case to see if it would be appealed, and will certainly keep our readers advised as to the next steps, including whether the Supreme Court will grant the petition and hear this case. 

Wednesday, August 12, 2020

PAC Issues Binding Opinion Regarding Medical Provider Records


The PAC recently issued a new binding opinion (PAC Op. 20-006) finding that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request that sought copies of aggregate data on head injuries incurred by inmates in IDOC custody and policies for evaluating head injuries of IDOC inmates and employees. IDOC had denied possessing or maintaining any policies or aggregate data responsive to the request. IDOT acknowledged that its healthcare vendor, Wexford Health Sources, might possess responsive records but argued that Wexford’s policies were confidential and proprietary business documents that are exempt from FOIA disclosure by FOIA exemption 7(1)(g). The requester appealed IDOC’s denial with the PAC. 

Since IDOC contracted with Wexford to provide medical service to inmates, the PAC concluded that responsive aggregate data and policies in Wexford's possession that directly relate to providing medical care to IDOC inmates on IDOC’s behalf are considered public records subject to disclosure under FOIA. Specifically, FOIA states that public records possessed by a party with whom a public body has contracted to perform a governmental function on behalf of the public body, and that directly relate to the governmental function, are considered public records under FOIA. Relying on prior federal and state cases, the PAC determined that both types of records sought by the FOIA request directly relate to the governmental function of providing medical care for inmates. The PAC explained that the “direct relation” requirement helps ensure that parties can only access those records of private contractors that are truly related to its exercise of a governmental function on behalf of a public body, rather than records that are only incidentally or tangentially related to a contract with a public body. Indeed, the PAC highlighted that the purpose of FOIA is to ensure that governmental entities are not permitted to avoid their disclosure obligations under FOIA by contractually delegating their responsibility to a private entity.

The PAC also concluded that IDOC improperly rejected the sought records under FOIA section 7(1)(g) (the trade secret exemption). The PAC noted that IDOC failed to specifically prove that the responsive records constitute a “trade secret, commercial or financial information” and failed to demonstrate that disclosing these records would cause competitive harm. As a result, the PAC concluded that IDOC failed to prove by clear and convincing evidence that any responsive records in Wexford’s physical custody were exempt under FOIA exemption 7(1)(g). 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 11, 2020

State of Illinois Adopts Emergency Enforcement Rules on Face Coverings and Gatherings


Last week, Governor Pritzker announced that his administration filed new IDPH COVID-19 emergency rules for businesses, schools, and child care establishments regarding the use of face coverings and the size of gatherings. 

The rules became effective on August 7, 2020, and they require people over age two to wear a face covering (a mask or cloth face covering to cover their nose and mouth) when they are in a public place and unable to maintain at least a six-foot social distance. The face covering requirement applies whether in an indoor space, such as a store, or in an outdoor space. Any business, service, facility, or organization open to the public or to employees (including schools and day cares) must require employees, customers, and other individuals on the premises to cover their nose and mouth with a face covering when on premises. The emergency rule also prohibits gatherings of more than 50 people (or gatherings of 50% or more of a building’s maximum occupancy if 50% of a building maximum occupancy is less than 50 people). 

The rules provide multiple opportunities for compliance before a penalty is issued. The rules acknowledge that communities may be reluctant to employ existing, pre-pandemic enforcement laws (like revoking a license) so the new rules are intended to provide some flexibility but also more control to keep residents and businesses safe.  

The new enforcement and penalty process is described as follows: 

First, businesses would be given a warning in the form of written notice and encouraged to voluntarily comply with public health guidance. 

Second, businesses that do not voluntarily comply would be given an order to have some or all of their patrons leave the premises as needed to comply with public health guidance and reduce risks. 

Third, if the business continues to refuse to comply, the business could be subject to a fine ranging from $75.00 to  $2,500.00. 

The emergency rules also reinforce the authority of IDPH and local health departments to investigate COVID-19 cases and reaffirm that businesses have a responsibility to cooperate with those investigations.

Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink