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Monday, December 31, 2018

New Legislation Requires Township Clerks to "Attest" to "Payouts"

Governor Rauner recently signed Public Act 100-0983 into law. This law amends the Township Code, the Highway Code and the Public Graveyards Act by adding cryptic language requiring township clerks to “attest” to certain “payouts” of funds. This law adds a new section 7-27 to the Township Code specifying that, “If a township supervisor issues a payout of funds from the township treasury, the township clerk shall attest to such payment.”  The Highway Code is amended by adding a new section 6-114.5 which states, “If a road district treasurer issues a payout from the road district’s treasury or the township treasury, the road district clerk shall attest to all moneys paid out.”  The Public Graveyards Act was amended to also include a similar provision.

Unfortunately, the legislation does not define the manner in which the clerk is to “attest” to the payouts – does that mean that the clerk is attesting that the funds were expended?  Or that they were expended for the purposes specified?  Or that there are sufficient funds available to make the payout?  Or is the clerk attesting that the township board or the Supervisor approved the expenditure of the funds?  Nor does the legislation define what a “payout” is.  Does “payout” cover credit card payments, auto payment of utility bills and electronic fund transfers?  What about townships which have passed resolutions authorizing the payment of routine utility bills?  There is no record of legislative history or substantive debate available to help determine the General Assembly’s intent behind this new law.

In the absence of clarity, townships may choose to satisfy this law in different ways based on how they interpret it.  The Township Officials of Illinois association is recommending that township clerks attest “to the signature of the supervisor on all checks written.”  Certainly, townships may do that if they would like.  However, the law does not state anything about attesting to a signature – it specifies that the attestation is to the “payout of funds,” a “payment” or “all moneys paid out.”  It does not state anything about clerks endorsing a check or a signature, nor does it require that the attestation of the payout must occur prior to the payout.  Further, even if a township clerk certifies a supervisor’s signature on a check, it is not clear whether that act would satisfy the legislation’s requirement to attest to a “payout of funds” or to “all moneys paid out.”

While the legislation was apparently intended to promote transparency – which is a good thing - and to prevent situations where township supervisors were issuing checks without township board approval, (which was already illegal), it will be challenging for townships to comply with this legislation without further clarification about the scope of a clerk’s attestation to a payout.  If the legislation was intending to require township clerks to witness the township supervisor’s signature and endorse every check, it could have said that – but that is not what this says.  We have heard from some townships whose banks have indicated that they will not accept and process checks bearing a second signature of someone who is not a signatory to a financial account.  In addition, banks that have reviewed this ambiguous new law are not interpreting it to require them to have to accept an additional signature.

Perhaps a simpler option for township clerks would be to maintain a copy of all expenditures or “payouts,” develop a separate sheet attesting that the payouts at issue were authorized by the township board, expended for the purposes specified,  provided for in the budget and directed to be paid out by the Township Supervisor.  That action would seem broad enough to comply with the requirements of this legislation, and it would perhaps be easier for clerks to accomplish. 

This law becomes effective on January 1, 2019.

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

Thursday, December 27, 2018

Court Finds City's Sports Ticket Sale Ban Near Stadiums Constitutional

In a second case involving a challenge to a City of Chicago ordinance, the Illinois appellate court again ruled in favor of the City. City of Chicago v. Haywood.

The City of Chicago has an ordinance that states as follows:
It shall be unlawful for any person, while located on the public way within 2,000 feet of a stadium or playing field, to sell, offer, or expose for sale, or solicit any other person to purchase tickets for any amusement produced or presented in that stadium or playing field. (Chicago Municipal Code §10-8-505(a))
Haywood was arrested twice for selling sports tickets within 2,000 feet of Wrigley Field. He countered by arguing that the City's ordinance was unconstitutional on several grounds, including that it violated his First Amendment rights and was overbroad. The circuit court agreed, and found the ordinance unconstitutional.

The appellate court reversed. First, the court held that selling sports tickets does not implicate any First Amendment rights. Second, because the ordinance did not implicate any fundamental rights, it only needed to satisfy "rational basis." In this case, the City argued that the ordinance was intended to ensure the safe and unobstructed flow of pedestrian and vehicular traffic near sports stadiums. The appellate court accepted that, and reversed the trial court's ruling finding the ordinance was constitutional.

Wednesday, December 26, 2018

Court Upholds City's Tax on Tobacco Products

In 2016, the City of Chicago adopted an ordinance imposing a flat tax on non-cigarette tobacco products, including smoking tobacco, smokeless tobacco, pipe tobacco, and cigars. Shortly after enactment, Iwan Ries and various tobacco associations filed a lawsuit against the City challenging the legality of the ordinance, claiming the ordinance was unconstitutional because it was preempted by section 8-11-6a(2) of the Illinois Municipal Code which provides in part as follows:
Notwithstanding the foregoing, this Section does not preempt any home rule imposed tax such as the following...(2) a tax based on the number of units of cigarettes or tobacco products (provided, however, that a home rule municipality that has not imposed a tax based on the number of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date.
The circuit court agreed with the plaintiffs and struck down the City's ordinance, finding that it was preempted by state law because the City had not enacted a tax on tobacco products prior to 1993. The City appealed, and the appellate court ruled in the City's favor, reversing the lower court's decision. Iwan Ries & Co. et al. v. City of Chicago.

Plaintiffs argued that because the City had not enacted a tax on tobacco products prior to 1993, it was preempted from enacting one in 2016. The City countered by arguing that because it had a cigarette tax in place in 1993, it was not preempted from enacting a tobacco product tax. The appellate court agreed with the City's interpretation of the statute based on the statute's use of the word "or". Specifically, the appellate court held that because the City had enacted a tax on cigarettes prior to July 1, 1993, it was not preempted from enacting a tax on either cigarettes or tobacco products after that date. As a result, the appellate court reversed the circuit court's ruling striking down the City's tax.

Thursday, December 20, 2018

Amendment to Local Government Professional Services Selection Act

Local governments should be aware of a new law that takes effect on January 1, 2019 relating to professional services contracts. The Local Government Professional Services Selection Act requires local governments to follow certain procedures for retaining professionals to provide architectural, engineering, and land surveying services. The Act requires the local government to publish notice in the newspaper before selecting a professional, and the Act contains certain evaluation "criteria" for selection, including qualifications, past record and experience, availability to meet time requirements, location, workload and other qualifications. The Act prohibits local governments from seeking estimates of costs as part of the proposal process.  The Act exempts from this process services provided by firms with "a satisfactory relationship for services." 

The Act currently authorizes a local government to waive this process if the services for the project is expected to cost less than $25,000 - P.A. 10-0968 amends that amount to $40,000, effective January 1, 2019.

Monday, December 17, 2018

Zoning Challenge Moves Forward After Appeal

In a lengthy opinion involving a dispute spanning more than a dozen years, an Appellate Court recently issued an opinion in a case challenging amendments to a municipal zoning ordinance regarding commercial horse boarding. Drury v. Village of Barrington Hills.

In 2006, Barrington Hills amended its zoning ordinance to allow residential horse boarding as a home occupation, subject to a variety of restrictions, including hours of operation. 2 years later, the Village cited a resident for violating the ordinance for operating a large-scale commercial horse boarding facility which did not comply with the "home occupation" restrictions. While the resident (LeCompte) defended the citation in court, neighbors (including Drury) filed their own lawsuit to enforce the ordinance against LeCompte's use.

After LeCompte lost his case against the Village, he asked the Village Board to amend its ordinance to allow large-scale horse boarding operations. The Board did adopt an ordinance that permitted LeCompte's use and also made the ordinance retroactive to 2006. The neighbors filed another lawsuit, this time challenging the zoning amendment on "substantive due process" grounds, alleging that it was unlrelated to the health, safety, and welfare because it was passed solely for the benefit of LeCompte.

After the spring 2015 elections, the composition of the Village Board changed. Shortly thereafter, the Village entered into an agreed settlement order with the neighbors in which the Village agreed that the zoning amendment was "void ab initio" meaning the ordinance was void when it was adopted. The circuit court refused to enter the agreed settlement order between the Village and neighbors. The court also dismissed the neighbors lawsuit challenging the zoning amendment. 

On appeal, the Appellate Court agreed that the settlement order between the Village and neighbors was improper, specifically because it did not include all of the parties, specifically LeCompte who had intervened in the case filed by the neighbors challenging the zoning amendment that allowed commercial horse boarding. 

However, the Appellate Court did not agree with the circuit court's dismissal of the underlying lawsuit by the neighbors for a number of reasons. First, the Appellate Court determined that the neighbors did sufficiently plead that the zoning amendment was passed for the exclusive benefit of LeCompte based on the retroactivity language that the circuit court deemed a "legislative pardon" of LeCompte's fines for violating the previous zoning ordinance. Second, the Appellate Court noted that the Village Board repealed the ordinance less than a year after its adoption and in doing so, expressly disclaimed any rational basis for that ordinance. 

Based on the Appellate Court's ruling, the case will go back to the circuit court for further proceedings on the neighbor's challenge to the zoning amendment.

Thursday, December 13, 2018

Another Election Special Quorum Forum Podcast Released

Ancel Glink's Quorum Forum podcast has just released Episode 16: Election Special! Governmental Issues and Electoral Boards. In this episode, we focus on the local election process. A summary of the podcast is below:

Election season isn’t just for candidates! Local election officials and electoral boards have many responsibilities to make elections happen. Meanwhile, local governments are asked to enforce political sign regulations and electioneering laws. Sometimes local governments get involved in elections themselves with their own referenda and public questions. With so many election-related issues, Ancel Glink’s Keri-Lyn Krafthefer joins us for another election special addressing governmental issues and electoral boards! 

What issues does your local government face during election season? Email us at podcast@ancelglink.com!

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: ancelglink.com/disclaimers

Wednesday, December 12, 2018

Court Provides Guidance on "Unduly Burdensome" FOIA Requests

An Illinois Appellate Court recently issued a ruling in a FOIA challenge that provides public bodies with helpful guidance on what they need to show when responding to a requester that a particular request is "unduly burdensome." Sargent Shriver National Center on Poverty Law v. Board of Education of City of Chicago.

Shriver had submitted three FOIA requests asking for records pertaining to, among other things, complaints filed with Chicago schools relating to police officer or security guard conduct and employee misconduct reports.  In response to all three requests, the Board sent a notice of extension of time, and then notices that the requests were unduly burdensome under section 3(g) of FOIA and asking the requester to narrow the categorical request. When Shriver did not narrow the requests, the Board denied them as unduly burdensome. Shriver then sued, alleging that the Board willfully and intentionally failed to comply with FOIA. The circuit court dismissed the case against the Board, finding that Shriver's allegations were insufficient to show a violation of FOIA. 

On appeal, the appellate court agreed that the dismissal of Shriver's case against the Board was proper. First, the appellate court determined that the Board properly extended the time to respond to the request by sending notice to Shriver.  Second, the appellate court held that the Board properly denied the request as unduly burdensome after sending notice to Shriver asking it to narrow its categorical request. The appellate court noted that the Board had included a detailed explanation as to why complying with Shriver's request would be unduly burdensome, including the number of files that would have to be compiled, reviewed, and redacted and the Board's estimate of the manpower it would take to do that work. Interestingly, the second FOIA request involved 600 employee misconduct reports, and the appellate court accepted the Board's argument that it would be unduly burdensome to provide these records because it would take hundreds of hours to review and redact the reports.

This is an interesting and helpful decision for public bodies in understanding how courts will analyze requests that are denied as "unduly burdensome." One of the keys to this ruling seemed to be the Board's detailed description in the denial letter as to why compliance would be unduly burdensome.

Tuesday, December 11, 2018

New Act Extends PEDA Benefits to Paramedics

The Illinois General Assembly recently enacted P.A. 100-1143 amending the Public Employee Disability Act (PEDA) to expand disability benefits. Currently, PEDA requires a state or local government employer to continue to pay a police officer or firefighter, who is injured in the line of duty and unable to perform his or her duties, the employee's salary for a one year period without requiring the employee to use sick leave or other leave time. This new law extends PEDA benefits to a "full-time paramedic or a firefighter who performs paramedic duties." The Act is effective January 1, 2019.

The bill had been vetoed by Illinois Governor Rauner but the Illinois Senate and House voted to override the veto.

Monday, December 10, 2018

"Holiday Spirits" Quorum Forum Podcast is Live!

One of our most entertaining and quite timely Quorum Forum podcast episodes has just been released.  In Episode 15, "Holiday Spirits," you will hear Ancel Glink attorneys discuss new liquor licensing laws and regulations and much more.

You can access Episode 15 of Quorum Forum podcast here.

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

Wednesday, December 5, 2018

Don't Forget to Approve Your Annual Schedule of Regular Meetings

We wanted to send out a reminder that the Illinois Open Meetings Act requires Illinois public bodies to adopt an annual schedule of their regular meetings. So, before the end of the year, Illinois governments should schedule an item on an upcoming meeting agenda for the public body to approve the schedule of meetings for 2019. The annual schedule must include the times and places of all regular meetings. 5 ILCS 120/2.03.

This requirement applies not only to the corporate authorities (city council, village board, park board, school board, library board, township board, etc) but also to subsidiary bodies such as the plan commission, zoning board of appeals, etc. to the extent these subsidiary bodies have "regular" meetings as opposed to scheduling special meetings when needed.

Tuesday, December 4, 2018

Governor's Removal of IPRB Member Not Subject to Judicial Review

After Illinois Governor Rauner terminated the appointment of a member of the Illinois Prisoner Review Board, the terminated member sued, claiming he was wrongfully terminated. The circuit court agreed, but that ruling was reversed by the Illinois Appellate Court, which held that the Governor's decision to remove the IPRB member was not subject to judicial review. The case was eventually appealed to the Illinois Supreme Court in Gregg v. Rauner.

In 2012, Gregg, the mayor of Harrisburg, was appointed by former Governor Quinn to serve on the IPRB board. At the time of his appointment, Gregg was required to file  statement of economic interests. In his statement, he wrote "none" in the space requiring identification of any gift valued over $500. 

In 2013, the former treasurer of Harrisburg notified the state that Gregg had failed to include a medical lift chair that he had received as a gift. No action was taken at that time. 

In 2014, Gregg filed for bankruptcy, indicating on his petition monthly income of $4,027 from operating a business. After Governor Rauner took office, a newspaper reporter contacted the Governor's legal counsel asking whether Gregg's reported income violated state law that prohibits IPRB members from engaging in any other business, employment, or vocation. 

In 2015, Governor Rauner's General Counsel informed Gregg that the Governor's Office had received allegations that Gregg had submitted a false bankruptcy filing and had failed to report gifts on his statement of economic interests. Gregg responded that the income reported on the bankruptcy filing was his wife's and that the statement he filed related to 2011, and he was not asked to file an amended statement in 2012.  Shortly thereafter, the Governor terminated Gregg's appointment,, citing malfeasance, incompetence, and neglect of duty.

The circuit court ruled in favor of Gregg, holding that the reasons given by Rauner were not sufficient to constitute "cause" under state law. The appellate court reversed, finding that the court had no jurisdiction over the removal of members of the IPRB.

The Illinois Supreme Court agreed, finding that the separation of powers doctrine prohibited a court from reviewing the Governor's removal of a member of the IPRB because that review would interfere "with the Governor's responsibility for the faithful execution of the laws."  The Court acknowledged that there are other boards and commissions that are constitutionally created and politically independent where removal could be judicially reviewed; however, the IPRB was not such a board. As a result, the Court concluded that the Governor's decision to remove Gregg from the IPRB board was not subject to judicial review. 

Monday, December 3, 2018

Election Special Podcast Just Released on Quorum Forum

Ancel Glink's podcast, Quorum Forum has released a new Episode 14 on elections. Information about this very timely episode is below:

Local election season is underway, and you can’t win an election if you’re not on the ballot. That’s why Ancel Glink partner Keri-Lyn Krafthefer joins us to navigate you through the ballot access process, talking about nomination petitions, the statement of candidacy, the statement of economic interest, and more! 

How are you preparing for local elections in 2019? Tell us about it, podcast@ancelglink.com!

You can access this new episode on the Quorum Forum website here.

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