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Tuesday, July 7, 2020

Quorum Forum Podcast: Can I be Fired for Protesting?



Ancel Glink's Quorum Forum Podcast just released Episode 41: Can I be Fired for Protesting?

Timely issues affecting public and private employers are on the agenda for the latest episode of Ancel Glink's Quorum Forum podcast. Ancel Glink Attorneys dicuss whether employees risk discipline at work for participating in recent protest. We also review the Supreme Court’s recent decision on gay and transgender rights, and what it means for local governments and other employers. 

What issues are your employees facing this summer? Email us at podcast@ancelglink.com

Resources




Monday, July 6, 2020

Coronavirus Relief Funds Available for Some Cook County and Downstate Local Governments



The federal CARES Act established a $150 billion Coronavirus Relief Fund for states and eligible local governments with more than 500,000 in population. In Illinois, those direct recipients include the State of Illinois, the City of Chicago, and Cook, DuPage, Kane, Lake, and Will counties. While announcements from other counties are expected soon, last week Cook County announced applications are now available to pass through Coronavirus Relief Funds to its suburban municipalities, townships, and fire protection districts. Additionally, the Illinois Department of Commerce and Economic Opportunity (DCEO) announced initial details for its Local Coronavirus Urgent Remediation Emergency (or Local CURE) Support Program to pass funds through to “downstate” local governments outside Cook, DuPage, Kane, Lake, and Will counties.

Suburban Cook County Municipalities, Townships, and Fire Protection Districts

Funding Allocation
Suburban Cook County municipalities, townships, and fire protection districts (“municipalities”) may apply for reimbursement of qualifying expenses related to COVID-19 subject to their allocated funding. Cook County has assigned $51,000,000 to fund the Cook County COVID-19 Funding Response Plan. Allocations for each municipality were determined based on immediate needs to respond to the Pandemic, municipal population, municipal median income, and municipal public health statistics. Specifically, Cook County is allocating $5.90 per person to each suburban municipality, plus an additional allocation based on a weighted calculation of four demographic and public health metrics: 1) percent population in disinvested areas; 2) median income; 3) COVID-19 deaths per 100,000 residents; and 4) tax base per capita.

Eligible Expenses
Cook County will reimburse eligible municipalities for COVID-19-related expenditures consistent with Federal Treasury CRF Eligibility guidelines, are similar to the expenses eligible for reimbursement through the Local CURE Program described below. Funds are not eligible for loss of revenues many local jurisdictions are facing and only authorized for direct COVID-19 expenses.

Application
The application is accessible on the Cook County website and should be submitted to SuburbanCovidFundingRequest@cookcountyil.gov with an intergovernmental agreement and Vendor ID form. Municipalities may apply for either the full amount or partial amounts of this first allocation. A decision should be returned within 5-10 days after the application is submitted, and checks should be issued approximately 30 days following the receipt of a completed application.

Expenditure documentation should support all amount(s) requested for funding, and must include copies of receipts, invoices, budgets, contracts, timesheets, etc. Cook County may conduct an audit of suburban municipality Coronavirus Relief Fund reimbursements to ensure they are consistent with federal treasury guidelines. Potential applicants may review further guidance on Cook County’s website.

Local CURE Funds for Downstate Local Governments

Allocation
Local CURE funds will be automatically allotted for downstate municipalities, counties, and local health departments, and those counties and municipalities can request reimbursements in pre-determined “not to exceed” amounts. Other downstate local governments must apply for an allotment between July 6, 2020 at 4:00 p.m. until July 17, 2020 at 4:00 p.m. Local governments serving areas that have been most disproportionately impacted by the COVID-19 public health emergency will be prioritized in the application process.

Eligible Expenses
DCEO announced it will hold technical assistance calls and webinars in mid-July and on July 29, 2020 before local governments may begin requesting reimbursements on August 1, 2020. Subject to forthcoming emergency rules, DCEO offered the following information about eligible expenses: 

  • Local CURE funds may only be used to cover COVID-19 related expenses incurred from March 1, 2020 to December 30, 2020.
  • Eligible expenses must have not been accounted for in the local government’s budget as of March 27, 2020 (when the CARES Act was enacted).
  • To receive reimbursement, a description and rationale for costs and how they were necessary and relate to COVID-19 must be included with electronic documentation of expenditures.

Examples of eligible expenses include:

o    Medical expenses;
o    Public health expenses;
o   Payroll expenses for public safety, public health, health care, human services, and similar employees whose services were substantially dedicated to mitigating or responding to COVID-19;
o   Expenses for actions taken to facilitate compliance with COVID-19 related public health measures; and
o   Any other COVID-19 expenses reasonably necessary to the function of government.

Examples of ineligible expenses include reimbursement of donors, severance pay, legal settlements, and government revenue shortfalls.

Downstate local governments can prepare to submit their COVID-19 related expenses for reimbursement by organizing them in an electronic format with appropriate descriptions and eligibility rationales. Local governments seeking reimbursement should also be registered with SAM.gov.


Post authored by Daniel J. Bolin and Catherine Coghlan

Tuesday, June 30, 2020

A Summary of Phase 4 Recreation Guidelines



Effective June 26, 2020, new DCEO guidance governs various recreation activities during “Phase 4” of Illinois’ reopening plan. This includes guidance for indoor and outdoor recreation, youth and recreational sports, golf, tennis, health and fitness centers, and day camps. The Illinois Department of Public Health also issued long-awaited Phase 4 swimming guidance on the same day, while DCEO advised the Illinois Association of Park Districts that while indoor playgrounds must remain closed, local governments have discretion to open outdoor playgrounds subject to a 50-person capacity limit and other applicable IDPH guidance. 

Highlights from the most-recent recreation guidelines are summarized below.

Indoor and Outdoor Recreation

Under the guidelines, a non-exhaustive list of indoor and outdoor recreation facilities may open, including arcades, ice skating rinks, and driving ranges. Amusement parks, trampoline parks, and indoor playgrounds should remain closed. Among other things, permitted indoor and outdoor recreation facilities should:

  • Display signage at entry with face covering requirements, social distancing guidelines, cleaning protocols, and any reduced capacity limit.
  • Ensure at least 6-ft. between any stations for individual recreation activities.
  • Configure locker rooms and showers with signage, tape, and other markings to ensure members can maintain 6-ft. of social distance.
  • Operate at the lesser of 50 customers or 50% of capacity.
  • Limit group sizes to 50 people and only allow multiple groups at once if:

o   Facilities allow for social distancing of customers and employees;
o   30-ft. of distancing is maintained between groups; and
o   Areas for each group are clearly marked to discourage interaction between groups.

Playgrounds

  • Indoor playgrounds must remain closed.
  • Local governments are provided the discretion to reopen outdoor playgrounds, so long as:

o   no more than 50 persons are present at the playground; and
o   social distancing and other applicable IDPH guidelines are followed.

Swimming Facilities

Swimming facilities licensed by the Illinois Department of Public Health may reopen under the guidelines during Phase 4, including swimming pools, water parks, splashpads, and beaches.

  • Capacity is limited to 50%.
  • Group sizes are limited to 50 people, allowing for social distancing where possible.
  • Operators should have employee and customer temperature checks upon entry to the facility and at mid-shift for employees.
  • Operators, employees, and customers should wear face coverings when not engaged in swimming activities, with exceptions for children younger than the age of 2 and for those with medical conditions
  • Rafts, tubes, lounge chairs, or other shared equipment must be sanitized between each us
  • Multiple groups of 50 people may be permitted if:

o   social distancing is practiced;
o   30-ft. of distance is maintained between groups;
o   and areas for each group are clearly marked to discourage interaction between groups.
·     
Youth and Recreational Sports

Organization operating recreational sport activities should:

  • Enforce social distancing guidelines as much as feasible during gameplay
  • Any additional team members not participating in gameplay should sit on the sidelines 6-ft. apart from one another
  • Designate areas for spectators with existing seating capped at 20% of capacity and ensure at least 6-ft. between sets occupied by spectators that are not members of the same household.

Golf

Golf is permitted in accordance with the updated guidelines, including:

  • Two people are permitted to ride together in a cart, with face coverings required if they do not live in the same household.
  • Group activities (outings, league play, and other organized events) and shotgun starts are permitted. Golf courses should develop procedures to ensure that individuals do no congregate in groups excess of 50 before or after the activity.

Tennis

Indoor and outdoor tennis facilities may resume operations in accordance with the new guidance which provides, among other things:

  • Public tennis courts should have gates roped off or left open to prevent touching.
  • Employees should wear face coverings when within 6-ft. of others and players should wear face coverings whenever not exercising.
  • If social distancing cannot be maintained during game play, participants should still maintain 6-ft. of distancing whenever not directly involved in gameplay.

Day Camps

The new guidance allows operations of day camps, such as recreational day camps, educational day camps, and religious day camps not licensed by the Department of Children and Family Services. However, overnight camps are not permitted. Day camps should:

  • If day camp is based outdoors, enough available indoor space should be secured to accommodate all participants (in adherence with guidelines around 6-ft. of distancing and 15 or fewer participants per group).
  • For indoor facilities, a maximum of 50% of facility capacity is permitted.
  • Group sizes should be limited to 15 participants or less (only 10 children in programs with changing participants week-by-week).
  • Multiple groups permitted of 15 or less so long as:

o   Facilities allow for social distancing of all participants and employees;
o   30-ft. of distancing is maintained between groups; and
o   Areas for each group are clearly marked to discourage interaction between groups.

Health and Fitness Centers

New guidelines apply to customer-facing facilities engaging in health and fitness services, including gyms, fitness centers, and yoga, dance, cycling, pilates, and barre studios. These guidelines include:

  • Fitness centers should configure workout stations or implement protocols (e.g., decommissioning equipment) to allow for 6-ft. social distancing between individuals without barrier OR 3-ft. apart with barriers).
  • Ancillary accommodations, such as saunas, hot tubs, and steam rooms, should be closed.
  • Fitness centers should operate at no more than 50% of occupancy at any given time.
  • Fitness classes should allow for 6-ft. of social distancing without barrier or 3-ft. with barrier between participants and are limited to a maximum of 50 participants.
  • Multiple groups permitted in a space at once as long as:

o   Facilities allow for social distancing of participants and employees;
o   30-ft. of distancing is maintained between groups;
o   Areas of each group are clearly marked to discourage interaction between groups.

Post Authored by Daniel J. Bolin and Rain Montero

Monday, June 29, 2020

Local Governments Evaluate Physical Meeting Attendance During New Disaster Declaration




On Friday, Governor Pritzker signed a new disaster declaration and Executive Order No. 2020-44 that local governments should be aware of since they specifically mention physical attendance at public meetings.

Background

As we previously reported, recent Open Meetings Act amendments allow local governments to hold meetings without a physical quorum under certain conditions.

One condition requires that members of the public present at the regular meeting location must be able to hear all discussion, testimony and votes of the public body. However, if  “attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration,” the public body must make alternative arrangements and provide notice allowing any “interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link . . . .”

Another condition requires at least one member of the public body, the chief legal counsel, or the chief administrative officer to be physically present at the regular meeting location, unless the disaster makes it unfeasible.

Feasible Physical Public Attendance

In his most recent disaster declaration, the Governor states that for purposes of the new Open Meetings Act amendments, “I find that the public health concerns at issue in this proclamation render in-person attendance of more than fifty people at the regular meeting location not feasible.” However, many regular meeting locations will be unable to accommodate up to 50 people while practicing social distancing. As a result, local governments may need to independently establish how much physical attendance is feasible at their regular meeting locations during the disaster for meetings without a physical quorum. Local governments could also consider alternative meeting locations that may accommodate greater physical public attendance.

Feasible Physical Attendance for Public Body Members

Additionally, the Governor’s latest EO 2020-44 encourages at least one member of the public body to be physically present if others are attending by phone or electronically, even though the recent Open Meetings Act amendments also allow the chief legal counsel or chief administrative officer to satisfy this minimum physical presence requirement. The order does not reference the Open Meetings Act at all and the Governor is simply encouraging, not mandating, physical attendance by at least one member. That being said, local governments might consider whether it is feasible to have at least one public body member physically present at the meeting place when there is not a physical quorum.

Notice on Websites and Social Media

EO 2020-44 also states that public bodies “must take steps” to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting, and to update their websites and social media feeds to keep the public fully apprised of any modifications to their meeting schedules or the format of their meetings due to COVID-19, as well their activities relating to COVID-19. These requirements previously expired with the adoption of the Open Meeting Act amendments but are re-imposed by this executive order.

Physical Quorum Meetings

Meanwhile, some local governments are returning to meetings with a physical quorum, where the ordinary Open Meetings Act requirements apply. In those meetings, local governments may continue to offer remote participation for members of the public, but remote participation for members of the public body should comply with the regular Open Meetings Act remote participation rules. Additionally, local governments might consider revisiting their public comment rules to accommodate the new avenues of public participation they opened in recent months.

The conditions in the new disaster declaration may persist until a vaccine or a highly-effective and widely available treatment exists. As a result, local governments should consider how the public, elected officials, and staff will participate in their public meetings under these conditions.

Post authored by Daniel J. Bolin

Friday, June 26, 2020

BREAKING NEWS: IDPH Issues Swimming Guidance for Phase 4


Late this afternoon, the Illinois Department of Public Health (IDPH) issued its long-awaited Phase 4 guidance for swimming in Illinois. According to the IDPH's website, the following guidelines apply to swimming pools, wave pools, water parks, beaches, spas, whirlpools, and splash pads:
This document is intended to provide guidance to businesses operating swimming facilities licensed by the Illinois Department of Public Health (IDPH) during Phase 4 of the Restore Illinois plan. This includes swimming pools, water parks, splashpads,  beaches, spas, and whirlpools.
During Phase 4, swimming facilities licensed by IDPH can open to a maximum 50 percent capacity.  Wave pools may open, but without the use of wave generation equipment. Operators, employees, and customers should wear face coverings when not engaged in swimming activities. Exceptions can be made for children younger than 2 years of age or people with medical conditions or disabilities that prevent them from safely wearing a face covering. Operators, employees, and customers should frequently wash their hands or use hand sanitizer containing at least 60 percent alcohol. Operators, employees, and customers should adhere to social distancing where applicable.
Operators should limit group sizes to no more than 50 people, allowing for social distancing where possible. However, multiple groups of up to 50 people may be permitted if facilities allow for social distancing of guests and employees; 30 feet of distancing is maintained between groups; and areas for each group are clearly marked to discourage interaction between groups.
Operators should make employee and customer temperature checks required upon entry to the facility, and at mid-shift screen employees to ensure the absence of COVID-19 symptoms.
If an employee becomes infected with COVID-19, they should remain isolated at home for a minimum of 10 days after symptom onset OR until feverless and feeling well (without fever-reducing medication) for at least 72 hours OR until confirmed to not have COVID-19 via two negative COVID-19 tests in a row done at least 24 hours apart.
If a customer is experiencing symptoms of COVID-19, they should leave the facility. If an employee or customer is identified as COVID-19 positive, cleaning and disinfecting should be performed in accordance to Centers for Disease Control and Prevention (CDC) guidelines.
Swimming facilities licensed to serve food may do so consistent with Illinois Department of Commerce and Economic Opportunity (DCEO) guidelines.  Indoor eating and drinking are permitted for parties up to 10 people.  Seated areas should be arranged so tables allow for 6 feet between parties. 
Operators should display signage at entries with guidelines for face coverings, social distancing, and cleaning protocols. Operators should provide updates to employees and customers on COVID-19 and swimming facility policies via its website or social medical channels. Showers and restrooms should be available and be cleaned and sanitized regularly. Hand sanitizers must be provided on the deck and in the bather preparation facility. Operators should minimize face-to-face employee and customer interaction where possible.
Rafts, tubes, lounge chairs, or other shared “equipment” must be sanitized between each use with a solution of at least 50 parts per million of a U.S. Environmental Protection Agency (EPA)-approved sanitizing agent. Guidance for appropriate cleaning of frequently touched surfaces and shared objects can be found at:
When features exist that cause patrons to congregate, including but not limited to, water slides and lazy rivers, additional controls must be implemented to prevent the spread of disease.  Written plans addressing such features shall be available for inspection by IDPH staff or any other duly authorized government agent.  Such plans shall minimally include controls for  maintaining social distancing while patrons wait for and use the feature(s), including using attendants to monitor patrons waiting at features; utilizing markings, signage, and verbal advisories to maintain 6 feet social distancing before, during, and after using the feature; and providing sanitized rafts, tubes, or other equipment.
Last Updated:  6/26/2020

UPDATED: Join Us Live for Quorum Forum Podcast Episode 41


We are sending out this corrected blog post to fix the link. 

Join us for a live recording of Ancel Glink’s Quorum Forum Podcast Episode 41, on June 29, 2020 at 5:00 pm (Central), to covering timely issues affecting public and private employers. We will discuss whether employees risk discipline at work for participating in recent protests, and will review the Supreme Court’s recent decision on gay and transgender rights, and what it means for local governments and other employers. 

Click here to join and share your questions with us!

Post Authored by Daniel J. Bolin, Ancel Glink

Thursday, June 25, 2020

Patient Zip Codes Protected From Release Under FOIA


In a recent FOIA case, King v. Cook County Health & Hospitals System, 2020 IL App (1st) 190925, an Illinois appellate court concluded that a public body properly refused to disclose the zip codes of former mental health patients because zip codes are confidential and protected from disclosure under the Mental Health and Developmental Disabilities Confidentiality Act (Act). 

In 2017, a requester submitted a FOIA request to the Cook County Health and Hospitals System (CCHHS) seeking the zip codes of former patients received mental health services while detained in the Cook County Jail. In response, CCHHS produced various responsive maps reflecting the ranges of individuals residing in certain demarcated areas. However, CCHHS refused to disclose the zip codes, arguing that zip codes of mental health recipients are exempt from disclosure under FOIA sections 7(1)(a) and 7(1)(b), which allow public bodies to withhold private information from disclosure. Likewise, CCHHS refused to produce the zip codes after the PAC issued a non-binding opinion recommending that CCHHS disclose de-identified zip codes records to the requester. The requester then sued, and the circuit court ordered CCHHS to produce the complete zip codes. 

On appeal, the appellate court reversed and concluded that zip codes for former patients is protected from disclosure. First, the appellate court noted that the Act requires all former patient records and communications be kept confidential and protected from disclosure, except for limited exceptions found in the Act. Because CCHHS is a HIPAA covered entity, it was authorized to redact or withhold patient zip codes because disclosing zip codes would reveal identifying patient information in violation of the Act. Although CCHHS offered to provide redacted zip codes, the requester maintained she was entitled to unredacted patient zip codes, arguing that FOIA’s disclosure requirements override the Act’s confidentiality provisions. The court disagreed. Reading the Act and the HIPAA privacy rule together, the court decided that zip codes must be de-identified before being disclosed since zip codes are confidential and protected under the Act.  

The appellate court also cited Illinois Supreme Court cases recognizing that Illinois has a strong, well-developed public policy in favor of keeping mental information confidential. Although FOIA generally requires that exceptions be narrowly construed in favor of promoting transparency in government actions, here, the court concluded that CCHHS properly withheld the zip codes under FOIA section 7(1)(a) because the Illinois public policy and the Act protect against the disclosure of confidential medical information.  

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, June 24, 2020

Attorney General Issues Opinion on Successive Emergency Proclamations



Sometimes we forget that the Illinois Attorney General issues opinions outside of its PAC office and that are unrelated to FOIA and OMA complaints. Recently, the Attorney General issued a formal opinion relating to COVID-19 in response to the following question:
Can the Governor exercise emergency powers for more than 30 days after making a disaster declaration under the Illinois Emergency Management Agency Act (Act)? 
On May 20, 2020, the Attorney General answered that question in Opinion 20-002, opining that the Act’s 30-day restriction on the Governor’s emergency powers does not prevent the Governor from making successive disaster declarations, which enable the Governor to exercise emergency powers for more than 30 days. That opinion reconsidered a previous opinion issued in 2001, that concluded that the Governor’s emergency powers could not be extended beyond 30 days without legislative approval. However, 

In Opinion 20-002, the Attorney General also acknowledges that the Illinois legislature deliberately excluded any provision that would require the Governor to convene the General Assembly into session in order to issue an emergency proclamation under section 7 of the Act. By comparison, section 11 of the Act limits local disaster declarations to 7 days, unless the declaration is continued or renewed “by and with the consent of the governing board of the political subdivision.” So, the Attorney General noted that if the General Assembly wanted to similarly limit the Governor’s authority to exercise emergency powers for more than 30 days following an emergency proclamation, the General Assembly would have said so in the statute.

Notably, the General Assembly has also made significant legislative changes to the Act since the Attorney General issued its 2001 opinion. Specifically, the Act’s definition of a “disaster” now expressly includes “public health emergencies.” Since public health emergencies can clearly extend beyond 30 days and involve situations where the General Assembly would be unable to safely convene, the Attorney General noted that the Act’s plain language and legislative history support the Governor’s authority to issue successive emergency proclamations and exercise emergency powers for more than 30 days during ongoing emergencies without seeking legislative approval.


Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, June 23, 2020

Governor’s Executive Order Upheld in Religious Assembly Appeal


The 7th Circuit Court of Appeals recently ruled on a case concerning religious gatherings during the COVID-19 pandemic, finding that Governor Pritzker’s Executive Order 2020-32 did not discriminate against two churches’ First Amendment right to religious assembly.

Elim Romanian Pentecostal Church and Logos Baptist Ministries sued Governor Pritzker claiming EO 2020-32 violated their First Amendment rights to free exercise of religion by limiting the size of religious gatherings to ten people. The churches argued that the Governor’s proposed alternatives – drive through church services and services over the internet – were inadequate for their congregations.

While the case was pending, Governor Pritzker replaced EO 2020-32 with EO 2020-38, permitting all religious services and classifying the 10 person cap as a recommendation with no legal consequences. In defending the churches' challenge, the State argued that EO 2020-38 resolved the lawsuit since the churches received the relief they requested from the courts. However, because of the fluid nature of the Restore Illinois plan, and the possibility that the Governor could restore the original EO 2020-32 if statewide conditions deteriorate and COVID-19 levels increase, the Seventh Circuit ruled on the lawsuit even though EO 2020-32 is not currently applicable.

The churches’ claims required the Court to decide whether religious services better resemble essential gatherings like grocery stores and laundromats, or non-essential gatherings like concerts and lectures. Ultimately, the Court held that church services involve large groups of people who gather in close proximity for extended periods of time which differ from grocery stores and laundromats where people do not congregate in large groups in close proximity for extended periods. The Court left the door open for Illinois to use data collection and contact tracing to determine just how dangerous religious services are compared to grocery stores and similar activities, but ultimately held that EO 2020-32 did not violate the churches’ First Amendment rights of religious assembly.

Read the 7th Circuit’s full opinion here.

Post authored by Catherine Coghlan and Daniel J. Bolin

Monday, June 22, 2020

Governor Releases Phase 4 Guidelines


The Illinois Governor has just released the guidelines for Phase 4 of the Restore Illinois Plan, which is expected to become effective on June 26, 2020, although that could change before Friday.  

You can access the various guidelines and toolkits for Phase 4 on DCEO's website here. You can read through an "overview" of Phase 4 here.

We are currently reviewing the Phase 4 Guidelines and will be providing more detailed information in future blog posts. We have provided a very brief summary:

For all industries:
  • All employees who can work from home should continue to do so
  • Continue to wear face covering that covers nose and mouth
  • Maintain social distance of 6 feet and frequently wash hands
  • Continue employee health screenings 
  • Follow guidelines on capacity limits and group sizes

Fitness centers and gyms may open with capacity limits at 50% and restrictions on classes of up to 50 with social distancing

Certain indoor recreation can reopen at the lesser of 50 persons or 50% capacity (bowling alleys, skating rinks, etc.) 

Concession stands and club houses can reopen

Meetings, social events, and other gatherings are limited to 50 people with social distancing

Indoor dining and drinking permitted for parties up to 10 people with spacing between tables

Outdoor seated spectator events allowed (indoor spectator events still prohibited) with a maximum of 20% seating capacity

Theaters permitted to reopen with limit of 50 people or 50% capacity

Youth and recreational sport games and tournaments permitted with capacity and group size limits

This is obviously not an exhaustive list of the new guidelines, so if you have specific questions about a use or activity, you should consult the specific guidelines for that business, use or activity, all of which are posted on DCEO's website.






Quorum Forum Podcast Ep 40: Bells That Can't Be Unrung After COVID-19



Polco/NRC recently assembled local government partners from across the country for the “Forward Together: Virtual Conference for Local Government.” Ancel Glink partner Daniel J. Bolin represented Engaging Local Government Leaders (ELGL) and discussed emergency practices that are changing expectations for residents and local governments alike for local government meetings, work from home, and more.

What are some "bells that can't be unrung" after COVID-19 in your community? Email us at podcast@ancelglink.com!

Resources:



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


Friday, June 19, 2020

Illinois Supreme Court Rules on Destruction of Police Complaint Records




By a six to one vote, the Illinois Supreme Court rejected an effort by the Fraternal Order of Police (FOP) to force the destruction of police complaint records that are more than five years old. The Court ruled that state law requiring retention of records overrides the FOP’s collective bargaining agreement language requiring destruction and that the contract language goes against public policy.

The FOP was seeking to enforce a section of its collective bargaining agreement with the City of Chicago that requires old police complaint files to be destroyed after five years. The union argued that if the City wanted to preserve the records it should renegotiate the contract, and that it was unfair for officers to have a trail of complaints follow them throughout their careers. The City had been attempting to renegotiate the collective bargaining agreement section allowing destruction of complaints against police officers since 1991.

With respect to the arbitration decision in favor of the FOP, the Illinois Supreme Court found the City satisfied the narrow public policy exception to vacate arbitration awards that are based on collective bargaining agreements. Under this exception, the court will vacate an award if it is “repugnant to the established norms of public policy.” This is determined by applying a two-part test. The first part requires the identification of a well-defined and dominant public policy, found in the Local Records Act. Then, the test looks to determine whether the arbitrator’s award violated the public policy. Here, the Illinois Supreme Court held that the arbitration award violated an explicit, well-defined, and dominant public policy, and so it invalidated the collective bargaining agreement section in question.

Read the full opinion here.

Post Authored by Catherine Coghlan and Daniel J. Bolin, Ancel Glink

Thursday, June 18, 2020

Most Government Offices Must Close for 2020 General Election Day



On June 16, 2020, Governor J.B. Pritzker signed Public Act 101-0642 declaring November 3, 2020 as a State holiday known as 2020 General Election Day. The law requires all government offices to close for Election Day on November 3, 2020. There are a few exceptions for the following government offices:
  • county clerks;
  • boards of election commissioners; and
  • government offices authorized to be used as a location to provide election day services or serve as a polling place.           
Schools and state universities will also be closed to observe the 2020 General Election Day as a State school holiday. Schools will be available as polling places, and schools and election authorities must comply with state health and safety procedures. Election authorities using a school as a polling place on Election Day may have their reasonable cleaning expenses reimbursed, subject to availability of federal funds.

The law also provides minimum hours at certain in-person early voting locations during the hours of 8:30 a.m. to 7:00 p.m. on weekdays and 9:00 a.m. to 5:00 p.m. on Saturdays, Sundays, and holidays. Additional in-person early voting hours may be established for persons with increased health risks from COVID-19.

The new law also expands vote by mail and makes other changes to facilitate the administration of the 2020 General Election. 

Note that the new law is expressly limited to the 2020 General Election and does not make changes for the April 2021 local government elections.

Post Authored by Daniel J. Bolin and Michael P. Halpin


Tuesday, June 16, 2020

Civil Rights Act Protects Against Discrimination Based on Sexual Orientation and Gender Identity


As I'm sure all of you have already heard, yesterday, the U.S. Supreme Court issued a decision in Bostock v. Clayton County holding that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The opinion is 172 pages long - the majority opinion is 33 pages and the remainder is devoted to two separate dissenting opinions, one of which was written by Justices Alito (joined in by Justice Thomas) and a separate opinion by Justice Kavanaugh.

The decision involved three lawsuits filed by employees who were terminated by their employers. One of these cases involved Gerald Bostock who worked as a child welfare advocate, sued his employer, Clayton County, Georgia after he was fired for conduct "unbecoming" a county employee after he began participating in a gay recreational softball league. The second case involved a lawsuit filed by Donald Zarda (a skydiving instructor) against his employer Altitude Express after he was fired for mentioning that he was gay. The third case was filed by Aimee Stephens who was fired after she informed her employer, G&G.R Harris Funeral Homes that she planned to live and work as a woman (she presented as a male when she was hired). 

Each of the employees sued their employers alleging sex discrimination under Title VII. The cases made their way to the respective federal courts of appeals. In Bostock's case, the 11th Circuit Court of Appeals found no Title VII protection for employees fired for being gay. the 2nd and 6th Circuits, however, allowed Zarda's and Stephens' claims to proceed. 

Title VII states, in part, that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). 

The majority opinion, authored by Justice Gorsuch, focused on what it termed the unambiguous language of Title VII's prohibition on sex discrimination to find a violation in all three cases. The majority noted that a Title VII violation occurs when an employer intentionally fires an individual employee based in part on sex. The Court explained that a statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, the Court held that an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. 

The dissenting opinions accused the majority of "legislating" in its interpretation of Title VII's prohibition on sex discrimination to include gay and transgender discrimination. Specifically, Justice Alito's dissent notes that neither “sexual orientation” nor “gender identity” appears on the list or prohibited discrimination in Title VII, and neither were contemplated in 1964 when the Civil Rights Act was enacted. 


Monday, June 15, 2020

Governor Signs OMA Remote Meeting Legislation


Since the Governor issued Executive Order 2020-07 in March (which has been extended from time to time), Illinois public bodies have been able to meet "remotely" due to the COVID-19 pandemic without having a physical quorum of the body present at the meeting place. The Governor's EO suspended the in-person quorum requirement of the OMA and also modified the reasons for which a member can attend a meeting remotely. As we reported previously, the Governor's most recent extension of his EO stated that this authorization would terminate when the General Assembly enacted legislation to authorize remote meetings.

On Friday, June 12, 2020, the Governor signed P.A. 100-0640 (SB 2135) into law. This new law amends the OMA to expressly authorize public bodies to meet remotely without the otherwise required quorum present at the meeting place. The law became effective immediately. We provided a detailed discussion of SB 2135 here.

Public bodies should be aware of a few new statutory requirements that may require them to change their remote meeting procedures and notices moving forward. These requirements, and a summary of the key provisions of the new law, are summarized below:

1.  The remote meeting authorization is effective only when the Governor has issued a disaster declaration that covers all or part of the jurisdiction of the public body.

2.  The head of the public body must make a determination that an in-person meeting is not practical or prudent because of a disaster. That determination could be identified on the agenda or stated at the meeting.

3.  All members need to be verified at the meeting and must be able to hear one another and all discussion at the meeting.

4.  Members of the public must be able to contemporaneously hear all discussion and votes, either by being physically present at the meeting place or through a phone or web-based link at open meetings. 

5.  At least one member of the public body or the chief administrative officer or the chief legal officer must be physically present at the meeting place unless it isn't feasible because of the disaster.

6.  All votes must be by roll call.

7.  Notice must be provided in accordance with the OMA (i.e., 48 hours in advance except in a bona fide emergency). The notice must be given to the members of the public body, posted on the public body's website, and provided to any news media that has requested notice.

8.  Meetings must be recorded (including open sessions).

Wednesday, June 10, 2020

Governor Pritzker Signs Law Regarding Workers Compensation Rebuttable Presumptions for COVID-19




On June 8, 2020 the Governor signed Public Act 101-0633. This new law provides a rebuttable presumption for workers compensation claims for frontline workers and first responders who claim to have been exposed to COVID-19 while in the workplace. A rebuttable presumption means that it is presumed that the worker was exposed to the COVID-19 virus while in the workplace unless the employer provides certain evidence to the contrary. The injury or occupational disease will be presumed to be causally connected to the hazards or exposures of the employee’s employment unless the employer provides evidence that it was not connected. 

The Act covers those who were or are allegedly exposed to or contract COVID-19 between March 9, 2020 through December 31, 2020. The rebuttable presumption will apply to all cases tried after the effective date of the Act and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020. 

A COVID-19 first responder or front-line worker is defined to mean all individuals employed as: 
  • police personnel
  • fire personnel
  • emergency medical technicians
  • paramedics
  • individuals employed and considered first responders
  • all workers for health care providers, including nursing homes, rehabilitation facilities and home care workers
  • corrections officers
  • individuals employed by essential business and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as these individuals are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. (note: an employee's home is not a place of employment except for home care workers).
  • State or local government employees who were necessary to ensure the continuing operation of the government agencies or providing for the health, safety, and welfare of the public
The new law provides that the employer can rebut the presumption by evidence, including but not limited to the following:
  1. The employee was working from home or on leave from his or her employment for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease, or period of incapacity resulted from exposure to COVID-19; or
  2. The employer was engaged in and applying, to the fullest extent possible and to the best of its ability, industry specific workplace sanitation, social distancing and health and safety practices based on guidance from the CDC and IDPH and was using a combination of administrative controls, engineering controls, or PPE to reduce the transmission of COVID-19 for at least 14 days prior to the employee’s injury, occupational disease, or period of incapacitation resulting from exposure.  PPE includes, but is not limited to, items such as face coverings, gloves, safety glasses, safety face shields, barriers, shoes, earplugs or muffs, hard hats, respirators, coveralls, vest and full body suits; or
  3. The employee was exposed to COVID-19 by an alternate source. 
For all COVID-19 diagnoses occurring on or before June 15, 2020, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive lab test for COVID-19 or for COVID-19 antibodies.  For COVID-19 diagnoses occurring after June 15, 2002, an employee must provide a positive lab test for COVID-19 or COVID-19 antibodies. 
IV
There are credits available to employers under the new law, including against temporary disability benefits and certain paid leave benefits and other credits otherwise available under the Workers Compensation Act.

Post Authored by Megan Mack and Rob Bush, Ancel Glink




Tuesday, June 9, 2020

7th Circuit Rules Street Vendor is not Entitled to Damages


Four years ago, we published a blog post about a case filed against the City of Chicago by a magazine owner challenging the City's ordinance that restricts the sale of magazines on streets adjacent to Wrigley Field. In that case, the owner of Left Field Media LLC (a company that sells Chicago Baseball, a four-edition magazine sold around Wrigley Field) sued the City of Chicago after a police officer issued the owner a ticket for selling the magazine. The officer requested that the owner move from a street adjacent to the ballpark per city ordinance. Left Hand sued, arguing the ordinance violated his freedom of speech. The Seventh Circuit found that the ordinance was “content-neutral,” meaning it only regulated vendors (peddlers), not the content of what was being sold—in this case, a magazine. The Court upheld the ordinance, finding that the City was entitled to limit sales on the streets adjacent to Wrigley Field because it helped the City control pedestrian spill-over from sidewalks because the streets adjacent to the field were narrow.  

The case was remanded to the district court to determine whether the City's ordinance requiring a peddles license was invalid because it exempted newspapers. While the case was still pending, the City amended its ordinance to remove the distinction between newspapers and magazines. The City argued the case was moot but Left Hand claimed it was entitled to damages it incurred between the time it filed the lawsuit and the City's amendment to its peddler licensing ordinance. Its damages claim made its way back to the Seventh Circuit, which recently denied Left Hand's request for damages and attorneys fees. 

First, the Court dismissed claims of emotional distress because the owner was not a litigant in the case. Since Left Field is a limited liability company, its owner is not personally on the hook for the company's liability, so would not be entitled to damages.

Second, Left Field failed to specify the costs it allegedly incurred to learn about the Chicago peddlers' licensing system. It also didn't apply for a license. Instead, its claims focus on the owner’s time but Left Field failed to show specific extra costs incurred by the company beyond normal payroll expenses.

Finally, the Court rejected Left Field's request for reimbursement of its legal fees because it failed to specify which legal expenses were dedicated to complying with the ordinance rather than trying to have it declared unconstitutional. 

You can read the opinion HERE

Post Authored by Mike Halpin & Julie Tappendorf

Monday, June 8, 2020

IDPH Issues Swimming Guidance for Phase 3


Last week, the Illinois Department of Public Health (IDPH) released its long-awaited guidance on swimming during Phase 3 of the State's Restore Illinois COVID-19 Plan. You can access the guidance here.

According to the IDPH, the following swimming facilities are not allowed to open during Phase 3 (with a few exceptions described below):
  • swimming pools and other facilities licensed by IDPH 
  • water parks
  • splash pads
  • bathing beaches
  • spas and whirlpools
  • clubhouses
  • waiting areas/viewing areas
  • other commercial gathering places at swimming facilities

Swimming facilities can, however, be used for the following activities during Phase 3:
  • lap swimming
  • diving
  • swim lessons
  • swim team practices
  • therapy pool use 

The IDPH guidelines require signage to be posted reminding everyone of state social distancing and face covering requirements. Employees and customers must wear face coverings when not actually engaging in swimming activities. Groups are limited to no more than 10 people although multiple groups of 10 people are permitted if (1) the facility can provide for social distancing; (2) 30 feet of distancing is maintained between groups; and (3) the group areas are clearly marked to avoid interaction between groups. 

The IDPH guidance allows swimming facilities to serve food, but only for curb-side pick-up, delivery, or outdoor dining consistent with DCEO outdoor dining guidance.

Friday, June 5, 2020

New Quorum Forum Podcast Ep. 39: Local Gov Legislation with Rep. Chris Welch



Ancel Glink just released its latest edition of its podcast, Quorum Forum described below:


The Illinois General Assembly recently concluded a socially-distanced special session unlike any other, sending lots of legislation affection local governments to the Governor. Ancel Glink partner and State Rep. Chris Welch joins us to discuss local government funding, remote meeting attendance, cocktails to-go, and more! 

Share your questions about legislation affecting local governments at podcast@ancelglink.com!

Resources






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


Thursday, June 4, 2020

New PAC Opinion on Discussion of Personnel Evaluations in Closed Session


The Illinois Attorney General’s PAC Office just released its fourth binding opinion for 2020. In PAC Op. 2020-04, the PAC found an Illinois local school council violated the Open Meetings Act when it discussed the timing and process for the school principal's evaluation in closed session.

While the council properly closed a portion of its meeting to discuss the specific individual ratings of a principal and council members' opinions on the principal’s performance, the PAC determined that the remainder of the closed session discussion was improper because it discussed alternate options for a new process to evaluate the principal and the timing of the evaluation process which are not permissible closed session topics. The PAC noted that the OMA exemption in section 2(c)(1) does not authorize closing a portion of a meeting to discuss the personnel evaluation process generally,  or the timing or scheduling of such process. 

The PAC stated that there is a significant public interest in a public body’s discussion of the process for evaluating high-ranking school administrators, which must be done in open session. Additionally, the PAC noted that the mere possibility than an open session discussion might touch on issues that a public body is authorized to discuss in closed session does not permit a public body to hold a lengthy closed session discussion on matters outside the scope of the exceptions to the general requirement that public bodies must conduct public business openly. As a result, the PAC ordered the council to release that portion of the meeting recording that was not properly within the scope of the closed session exemption.

As we have seen previously, it is important for public bodies to limit the scope of their discussions in closed session to only those topics that are permissible under the OMA exemptions. Discussion of an employee's performance and evaluation is a proper topic of closed session. However, to the extent that discussion might lead to a discussion of impermissible topics (such as the evaluation process or scheduling), the PAC says that the public body must reconvene in open session to continue that discussion.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink