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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, December 30, 2019

Law Imposes February 1st Deadline for List of Names for Filing of Economic Interest Statements

On December 20, 2019, the Illinois Governor signed into law P.A. 101-617 enacting various changes to state ethics laws. Most of the changes affect state employees rather than local government employees, but there is one provision that local governments should be aware of.

Specifically, the new law imposes a deadline for units of local government to file the list of persons who have to file statements of economic interest with the county. Now, the chief administrative officer of the unit of local government must file the list of names with the county by February 1st of each year. So, village and city clerks and others who handle this duty for their unit of local government each year should make sure they calendar the new deadline. 

Wednesday, December 18, 2019

New Year, New Laws 2020 Edition

As always, there are numerous new laws that take effect in January of each year. We don't report on all of them (none of us have time for that!) but we do try to keep you informed of some of the new legislation that may affect local governments, especially those that require you to take some action.  Here's a summary of just a few of the new laws taking effect in 2020.

Equitable Restrooms Act, P.A. 101-0165
We reported on this legislation previously here.  Effective January 1, 2020, all single-occupancy restrooms in any "public building" or "place of public accommodation" must be identified as all-gender and must be marked with exterior signage that does not indicate any specific gender. Local governments should make sure that their single-occupancy restrooms are appropriately signed.

Raffles and Poker Runs Act, P.A. 101-0109
As part of the Illinois legislature's expansion of gambling and gaming in the state, the legislature also expanded laws relating to raffles and poker runs. Local governments should review their current raffles regulations to ensure they are consistent with the new state law.

Leveling the Playing Field for Illinois Retail Act, P.A. 101­0031
Some provisions of this new law took effect in June and others will take effect on January 1, 2020. Changes include an expansion of video gaming (more terminals allowed, higher bets and winnings, etc), changes to sales taxes, and the imposition of the parking excise tax that we have reported on previously. 

Human Trafficking Notices, P.A. 100-0671
Changes to the human trafficking notices law added new requirements to post notices at special events that are permitted by units of local government. More important to local governments, the law now places the enforcement obligation on the local government rather than state agencies.

Cannabis Regulation & Tax Act, P.A. 101-0027
Much has been said about the new recreational cannabis law taking effect in January, 2020, and it's likely that municipalities have already enacted zoning regulations to either regulate or opt-out of cannabis businesses. Don't forget to make sure your personnel policies are up-dated to address employment-related changes and that your police departments are ready to deal with the new expungement requirements.

Tuesday, December 17, 2019

Homeowner's Lawsuit Against City Relating to Neighbor's Home Properly Dismissed

Ryan (a homeowner in the City) sued the City of Chicago asking a court for a "writ of mandamus" to order the City to direct a home builder to move a newly constructed home immediately adjacent to Ryan's home approximately 2.5 inches in order to comply with the required two-foot setback. After the circuit court had dismissed the case, Ryan appealed. The appellate court agreed that the case should be dismissed in Ryan v. City of Chicago, 2019 IL App (1st) 181777.

A home builder had purchased 2 lots to construct 2 single family homes. On one of those lots immediately adjacent to the plaintiff's home, the home builder mistakenly staked out the foundation within the required two-foot setback. By the time the builder realized the mistake, the walls and roof were already constructed. Although the new homeowners applied for and obtained a 2.5 inch setback variance from the Zoning Board of Appeals for the setback encroachment, Ryan nevertheless filed a lawsuit seeking a mandamus order so the home would have to be moved.

On appeal, the appellate court first determined that Ryan erred in citing 65 ILCS 5/11-13-15 as a basis for her mandamus lawsuit against the City. That statute (commonly referred to as the Adjoining Landowner Act) expressly states that it does not authorize any lawsuit against a municipality relating to enforcement of zoning regulations. 

Second, the appellate court held that because a municipal official has broad discretion in enforcing municipal ordinances, courts will not issue a writ of mandamus that would, in effect, substitute for that judgment. Here, the City had no clear duty to perform the acts that Ryan was requesting (revocation of the building permit for the new home and requiring the home builder to move a newly constructed home), which were within the City officials' discretion. 

Finally, the appellate court made it clear that there is no legal support for Ryan's argument that the City is obligated to enforce its ordinances. Instead, the court stated that enforcement of City ordinances is within the City's authority and discretion, but is not a mandatory duty that would entitle Ryan to relief. 

This ruling provides good guidance on a municipality's discretion in enforcing its zoning and building ordinances.

Monday, December 16, 2019

Pension Board Did Not Abuse Discretion in Denying City's Petition to Intervene

An Illinois appellate court recently upheld a Pension Board's denial of a City's petition to intervene in a disability hearing in City of Peoria v. Firefighters Pension Fund, 2019 IL App (3d) 190069.

A City firefighter applied for a line of duty disability pension from the Firefighters' Pension fund. He alleged that he was injured during a training exercise at the City's fire training academy. The Pension Fund scheduled a hearing on the application, and the City filed a petition to intervene claiming it had an interest in the proceeding because a line of duty disability pension would impact the firefighter's claims and the City's liability under the Public Safety Employee Benefits Act (PSEBA). The Pension Board denied the City's petition to intervene, and then voted to award a line of duty disability pension to the firefighter by a 3-2 vote.

The City subsequently petitioned the Pension Board for permission to supplement the medical record, which was granted. The Pension Board heard additional evidence, including supplemental medical opinions, and voted a second time to grant the line of duty pension.

The City then filed a lawsuit in administrative review to challenge the Pension Board's decision. After the City's case was dismissed, the City then appealed.

On appeal, the appellate court first determined that the Pension Board has discretion to determine whether to allow the City to intervene in its proceedings, and that the City's interest in overseeing the expenditure of pension funds does not mandate the City's participation in the Pension Board's hearing process. In this case, the court did not find any abuse of discretion by the Pension Board in denying the City's petition to intervene.

Second, the appellate court acknowledged that although there were contrary opinions submitted in the proceeding, there was sufficient evidence to support the Pension Board's decision to award the line of duty pension.

Tuesday, December 10, 2019

Cannabis Act Amendments Signed by Governor

As pretty much everyone in Illinois knows, January 1, 2020 is the first day that recreational cannabis will be legal in the state. Since the Cannabis Regulation and Tax Act was passed on June 25, 2019, a variety of concerns have been raised by municipalities, businesses, employers, and others regarding certain provisions of the Act, resulting in legislative discussions of a "trailer bill" to address some of these issues. We reported on this a couple of weeks ago here after both houses had approved it and it was sent to the Governor for his signature. 

Last week, the Governor signed P.A. 101-0593 approving changes to the Cannabis Act. While certainly not an exhaustive list of the extensive changes to the Act, we have summarized some of the amendments that affect local governments below:

Municipal and County Taxes

As amended, the Act will now allow municipalities and counties that enact a local sales tax on cannabis dispensaries to file their ordinance or resolution with the Department of Revenue by April 1, 2020 to begin collecting taxes as early as July 1, 2020. The initial Act wouldn't have allowed tax collection until September 1, 2020.  


The amended Act clarifies that the locational restrictions placed on the advertising of cannabis business establishments near certain sensitive uses do not apply to the exterior business signs of a cannabis business establishment that display only the name of the business.

On-Premises Consumption

As amended, the Act will clarify that on-site consumption of cannabis can only take place in a licensed dispensary or a retail tobacco store. Local governments are not authorized to expand on-site consumption beyond these two types of businesses but can establish restrictions or ban on-site consumption.

Public Safety Employees

The amended Act now states that the Act does not prevent public employers from prohibiting or taking disciplinary action against law enforcement officers or firefighters for consumption, possession, sales, purchase, or delivery of cannabis while on or off duty, unless otherwise provided by local policy or collective bargaining agreement.  

Employer Drug Policies

As amended, the Act clarifies that an employer may subject an employee to "reasonable and nondiscriminatory random drug tests" and can withdraw a job offer due to a failure of a drug test.

Cannabis Paraphernalia

As amended, the Act provides that the possession and use of cannabis paraphernalia is legal in connection with lawful cannabis use.


The trailer bill also makes certain changes to the expungement provisions of the Act, requiring courts to provide certificates of disposition to individuals after automatic expungement, among other changes.

Monday, December 9, 2019

FOIA Case Moot Because Records Provided to Requester

We don't see a lot of FOIA court cases - most of our guidance on FOIA comes from PAC opinions, both binding and advisory. Recently, however, an Illinois appellate court addressed a FOIA dispute in MAP v. City of Crystal Lake (unreported opinion).

In this case, the Metropolitan Alliance of Police (MAP) had filed a FOIA request with the City requesting attorney billing records and meeting minutes relating to a lawsuit involving the termination and subsequent reinstatement of police officers. The City provided the meeting minutes but denied the request for the attorney invoices and closed session meeting minutes. MAP filed a lawsuit challenging the City's denial of its FOIA request. While the lawsuit was ongoing, the City provided 136 pages of redacted attorney billing records to MAP. Both parties then filed motions for summary judgment. The circuit court ruled in favor of the City, and MAP appealed.

The appellate court did not rule on the merits of the FOIA request or response, instead finding the case moot because the City had already provided the requested records to MAP, which ended the dispute in this case. The appellate court also ruled that MAP forfeited any challenge to the City's redaction of the records or for the award of attorneys fees as a prevailing party because MAP failed to raise these issues in its motion for summary judgment. 

Thursday, December 5, 2019

Quorum Forum Podcast Episode 32: Holiday Special! New Laws for 2020

We have a new Quorum Forum Podcast episode for your listening pleasure: Quorum Forum Episode 32 - Holiday Special! New Laws for 2020

It's a Quorum Forum podcast holiday special! Ancel Glink attorneys are telling Santa what local governments need to know for the holidays and beyond. Christy Michaelson discusses maintaining city sidewalks, busy sidewalks, while Aaron Bitterman talks recent tort immunity cases. Finally, Mark Heinle reviews new laws affecting local governments and employers in the new year, on topics ranging from sexual harassment to the minimum wage. 

What do you think local governments need to know for the new year? 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

Tuesday, December 3, 2019

Court Finds PSEBA Recipients Only Eligible For "Basic" Health Coverage

From Ancel Glink's labor and employment law blog The Workplace Report with Ancel Glink:

Last week the 3rd District Appellate Court affirmed the practice of a number of municipalities who limit their PSEBA recipients to only their “basic,” or lowest level, health insurance plan.

In Esser v. City of Peoria, the plaintiff, a former police officer, had suffered a catastrophic injury as defined under the Public Safety Employee Benefits Act (“PSEBA”). He received a duty disability and applied for and was ultimately found eligible for benefits under PSEBA, which states in pertinent part, that an employer is required to pay the entire premium amount for “basic” health coverage for public safety employees who qualify under the Act.

The City had two health insurance plans from which employees could choose – a low deductible, and more expensive plan, and a high deductible, less costly plan. Previous to the plaintiff’s injury and a subsequent application for benefits under the Act, the City had approved an ordinance identifying its high deductible health insurance plan as its “basic” plan for purposes of the Act.

After the plaintiff was determined to be eligible for benefits pursuant to the Act, the City sent him a letter, notifying him that he was eligible for the high deductible plan at no cost per the Act, or he could choose the low deductible plan and pay the difference in premium between the two. He filed suit for declaratory judgment, asking the court to determine that he was eligible for the low deductible plan pursuant to the Act.

The appeals court held that the language of the act clearly states that the City’s (and any public employer’s) obligation is to pay the entire premium amount for “basic” health insurance, not the health insurance of the employee’s choice, or the most expensive health insurance, or any plan with more favorable coverage as might become available. Also, the City had previously identified the high deductible plan as being the “basic” plan for the City, and the one that was available at no cost to PSEBA recipients. Rules of statutory interpretation, the court concluded, required that the plain meaning of the language applied and that the plaintiff would be eligible for the designated high deductible plan identified by the City as its “basic” plan.

Public employers who have not yet passed ordinances identifying their “basic” health insurance plan for PSEBA recipients should consider doing so now, consistent with the decision in this case. Additionally, public employers should note that PSEBA recipients are not automatically eligible at no cost for the most expensive health insurance plan, or even the plan that they were on previously. In fact, it appears that the court in Esser has confirmed the practice of switching PSEBA recipients to an employer’s “basic” plan once the employee is determined to be eligible for benefits.

Post Originally Authored by Margaret Kostopulos, Ancel Glink


Monday, December 2, 2019

New Government Employer Requirements

It's December, which means there's less than a month until the New Year and compliance with any new laws taking effective in 2020. We'll be reporting on a few of these over the next few weeks, starting with changes to employment laws that affect local government employers.

P.A. 101-0221 was signed by the Governor on August 9, 2019. The Act made numerous changes to various employment laws. We have summarized two of these changes that affect local governments below, both of which require affirmative action by July 1, 2020. 

Elected Official Allegations of Sexual Harassment Against Another Elected Official

The Act amended the State Officials and Employees Ethics Act to require local governments to adopt an ordinance or resolution to amend their sexual harassment policies to provide a mechanism for reporting and independent review of allegations of sexual harassment made by an elected official against another elected official. Local governments have six months from the effective date of the Act to amend their sexual harassment policies (so, the amendment should be adopted by July 1, 2020). 

Employer Disclosure of Adverse Harassment or Discrimination Judgments or Rulings

The Act establishes new reporting disclosure requirements for employers. Government employers are expressly included in this statute. Beginning July 1, 2020, and annually thereafter, an employer that has had an adverse judgment or administrative ruling in the previous calendar year must disclose the following to the Department of Human Rights:
  1. the total number of adverse judgments or administrative rulings during the previous year;
  2. whether any equitable relief was ordered against the employer in that judgment or ruling;
  3. how many judgments or rulings fall into the following categories: (a) sexual harassment; (b) discrimination or harassment on the basis of sex; (c) discrimination or harassment on the basis of race, color, or national origin; (d) discrimination or harassment on the basis of religion; (e) discrimination or harassment on the basis of age; (f) discrimination or harassment on the basis of disability; (g) discrimination or harassment on the basis of military status or unfavorable discharge;  (h) discrimination or harassment on the basis of gender identity; (i) discrimination or harassment on the basis of any other characteristic protected under the Act.
If DHS is investigating a charge, it can also request information about settlements that relate to any category listed above. 

The disclosures should not include the victim's name, and any annual reporting by DHS based on the information provided by employers will not disclose individual employers' reports.

Tuesday, November 26, 2019

PAC Finds No FOIA Violation Where Internet Logs Do Not Exist

In a recent advisory (non-binding) PAC opinion, the Public Access Counselor of the Attorney General's office found in favor of a public body in a FOIA dispute involving a request for "internet logs." 2019 PAC 58425

A requester had filed a FOIA request asking a township to provide copies of "internet activity logs" of the supervisor and board of trustees. After the township responded that it had no responsive records, the requester filed a request for review with the PAC. The township responded that it had contacted its IT consultant to search the township's computer system and found no responsive records for the requested time-frame. The township explained that the township's network deletes all internet history records on a daily basis, so no records existed. The requester claimed that the township was obligated to retain and maintain browsing history information.

The PAC first noted that the PAC's authority is limited to alleged violations of FOIA and OMA, and does not extend to allegations of violations of records retention laws such as the Local Records Act. Here, the township conducted a reasonable search for the requested records, and there was no evidence that the records existed at the time of the search. As a result, the PAC found no violation of FOIA.

Disclaimer: Ancel Glink represents the township in this case

Monday, November 25, 2019

Court Awards Cable Franchise Fees to Village over County

In Village of Campton Hills v. Comcast, the Illinois Appellate Court clarified the application of Section 5-1095 of the Counties Code and awarded five-year’s worth of franchise fees to the Village.

The facts in this case occurred over a long period of time. Originally, the County and Comcast approved a cable franchise in 1988 that had a 15 year term. The franchise agreement covered unincorporated territory which included an area that later came within the boundaries of the Village. Once the original term expired, the County adopted a series of one year resolutions designed to extend the term of the franchise. In 2007, the Village was incorporated by referendum. The Village and Comcast subsequently approved a new cable franchise agreement that became effective January 1, 2008. Despite the new Village franchise agreement, Comcast continued to pay franchise fees to the County. As a result, the Village sued Comcast demanding payment of the franchise fees. Comcast added the County to the case and asked the Court to declare the parties’ rights.

Section 5-1095(a) of the Counties Code provides in relevant part: 
(a) The County Board may license, tax or franchise the business of operating a community antenna television system or systems within the County and outside of a municipality, as defined in Section 1-1-2 of the Illinois Municipal Code.
When an area is annexed to a municipality, the annexing municipality shall thereby become the franchising authority with respect to that portion of any community antenna television system that, immediately before annexation, had provided cable television services within the annexed area under a franchise granted by the county, and the owner of that community antenna television system shall thereby be authorized to provide cable television services within the annexed area under the terms and provisions of the existing franchise.  In that instance, the franchise shall remain in effect until, by its terms, it expires, except that any franchise fees payable under the franchise shall be payable only to the county for a period of 5 years or until, by its terms, the franchise expires, whichever occurs first.  After the 5 year period, any franchise fees payable under the franchise shall be paid to the annexing municipality.  
The trial court ruled in favor of the Village and granted the franchise fees to the Village. The Appellate Court affirmed, explaining as follows:
the first sentence of section 5-1095(a) granted the County the authority to franchise and tax Comcast but limited that authority to areas 'within the County and outside of a municipality.' . . . In November 2007, the County’s franchise (extended by resolution) expired. The County’s attempt to pass an extension in December 2007 was after the prior extension’s expiration and was ineffective as to property within the Village. Therefore, when the Village passed its Comcast franchise ordinance, effective January 1, 2008, it was the only effective franchising authority and the only entity entitled to collect fees from that time forward.
The Appellate Court also stated that:
in April 2007, a part of the County’s [franchise] area was incorporated as the Village. Thus, pursuant to “law,” section 5-1095(a) of the Counties Code, that part of the area was no longer subject to the County’s franchise agreement.  However, the incorporation of the Village did not impact the County’s franchise agreement with respect to the parts of the County that remained unincorporated. Thus, the trial court did not improperly modify the County’s franchise agreement with Comcast; rather, it ruled in conformity with the contract and the law.
As a result, the Court decided that the Village was entitled to all of the franchise fees related to cable subscribers within its jurisdiction from 2008 through 2012, the disputed five year period. In addition, the Court found that the County is required to reimburse Comcast for all of the wrongfully paid franchise fees during that time. The Court did not address the issue the Village raised as to whether incorporation and annexation are the same for interpretation purposes, finding it unnecessary to decide based on its ruling in favor of the Village.

Post Authored by Adam Simon, Ancel Glink

Disclaimer:  Ancel Glink represented the Village in this case.

Friday, November 22, 2019

State of Illinois Commission to Study Ethics Laws

Yesterday we reported on a bill that would modify the state ethics statutes. The General Assembly also passed HRJ 93 to create a joint commission of the Illinois house and senate to review and make additional recommendations for changes to various state ethics statutes, including the State Officials and Employees Ethics Act, the Illinois Governmental Ethics Act, the Lobbyist Registration Act, and the Public Officers Prohibited Political Activities Act. Because many of these state statutes also apply to local government officials and employees, this commission and its findings will be of great interest to local governments.

It is interesting to note that although the commission includes a wide range of state officials (see below), the commission includes no local government representation even though most of these statutes also apply to local government officials and employees. It would be reasonable for the Governor to consider appointing local government representatives as his Governor-appointees to provide a local government perspective to such an important study.

Membership of the commission is as follows:
  • 2 members of the GA appointed by the Speaker of the House
  • 2 members of the GA appointed by the Senate President
  • 2 members of the GA appointed by the House Minority Leader
  • 2 members of the GA appointed by the Senate Minority Leader
  • 2 members from the Attorney General's office appointed by the AG
  • 2 members of the Secretary of State's office appointed by the SOS
  • 4 members appointed by the Governor

Thursday, November 21, 2019

Bill Would Modify Local Government Ethics Reporting Deadline

Illinois SB 730 was just passed by the General Assembly and is now at the Governor's office awaiting signature. The bill proposes a number of changes to the Illinois Governmental Ethics Act, including one that would impact units of local government. If signed, the bill would establish a set date each year (on or before February 1st) by which the chief administrative officer of a unit of local government must file with the county clerk the names of those officers and employees who must file statements of economic interest with the local government unit on an annual basis.

Wednesday, November 20, 2019

Local Governments Prepare Responses to Cannabis Trailer Bill

During last week’s veto session, the General Assembly approved a “trailer bill” making technical and other changes to the legislation passed earlier this year authorizing recreational cannabis in Illinois. While the trailer bill still awaits the Governor’s signature as of this writing, local governments should start thinking about how the bill may affect their responses to recreational cannabis.

Cannabis Businesses Regulations

On-Premises Consumption

The trailer bill clarifies that municipalities may authorize on-premises consumption at a cannabis dispensary or at a “retail tobacco store” as defined in the Smoke Free Illinois Act. Many cigar lounges and hookah lounges are considered “retail tobacco stores.” The amendment ends speculation about whether a municipality could authorize on-premises cannabis consumption at a typical bar or restaurant and confirms that only authorized dispensaries and retail tobacco stores can have on-premises consumption. Importantly, the amendment would not change the authority of municipalities to prohibit or strictly regulate on-premises cannabis consumption.

Cannabis Business Definitions

The trailer bill also adds “infusers” to the definition of “cannabis business establishments,” confirming that local governments can adopt ordinances governing time, place, manner, and number of cannabis infusers, in addition to other cannabis business establishments.

Cannabis Taxes

Dispensary Sales Tax

From the tax perspective, the trailer bill would allow municipalities and counties to file their certified cannabis sales tax ordinances with the Department of Revenue on or before:

April 1 for enforcement beginning July 1; or
October 1 for enforcement beginning January 1.

Under the original law, enforcement of local cannabis sales taxes would not have started until September 1, 2020 at the earliest. While the trailer bill advances the start of local cannabis sales taxes, tax enforcement still does not coincide with the start of authorized cannabis sales on January 1, 2020.

Home Rule and Non-Home Rule Sales Tax

While food for off-premises consumption is typically subject to a lower one percent sales tax, the trailer bill confirms that “food consisting of or infused with adult use cannabis” would be subject to the ordinary home rule or non-home rule sales tax rate.

Local Enforcement Ordinances

Local governments may want to review their ordinances to ensure consistency with the state’s new cannabis laws, and to enforce appropriate cannabis laws locally through adjudications or circuit court. The trailer bill addresses a few issues local governments should consider for their own ordinances.

Cannabis Paraphernalia

Under the trailer bill, adults will be able to possess and use cannabis paraphernalia, in addition to cannabis for personal use, beginning January 1, 2020. Some municipalities have locally adopted provisions of the “Drug Paraphernalia Act” prohibiting most drug paraphernalia possession, and the trailer bill amends the Act to exclude “cannabis paraphernalia” from the definition of “drug paraphernalia.” If this legislation is approved, local governments should make sure their drug paraphernalia ordinances are consistent with state law.

Cannabis Use Prohibited in Parks

Using cannabis in any public place is prohibited, except in a dispensary or retail tobacco store authorized by a local government. “Public place” means any place where a person could reasonably be expected to be observed by others, including all parts of local government buildings. The trailer bill includes amendments explicitly making all local government parks, recreation areas, wildlife areas, or playgrounds a “public place” where cannabis use is prohibited.


State law restricts cannabis business advertising, including advertising near schools, playgrounds, and other listed sensitive places. However, the trailer bill confirms that “advertising” does not include the display of exterior signage displaying only the name of the licensed cannabis business.

Automatic Expungements

The trailer bill does not change the schedule for law enforcement agencies to automatically expunge records for certain minor cannabis possession offenses. The first deadline of January 1, 2021 requires expungement of records created on or after January 1, 2013 and prior to June 25, 2019.

The trailer bill does confirm that, in response to an inquiry for expunged records, the law enforcement agency should reply as it does in response to inquiries when no records ever existed; however, the agency must provide a certificate of disposition or confirmation that the record was expunged to the individual whose record was expunged if such a record exists.

Employment Policies

Public Safety Employees

The Cannabis Regulation and Tax Act does not authorize law enforcement officers, corrections officers, probation officers, or firefighters to use cannabis while on duty. The Right to Privacy in the Workplace Act prohibits discrimination against all employees for the use of “lawful products,” including cannabis, during non-working and non-call hours. Employees can be awarded actual damages, costs, and attorney’s fees for willful and knowing Right to Privacy Act violations.

The trailer bill would amend the Cannabis Act to state that “nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer's policies.” While nothing in the Cannabis Act prevents a public employer from disciplining the listed public safety employees for off-duty cannabis use, the trailer bill would not change the protections provided in the Right to Privacy Act.

Arguably, the General Assembly did not intend to adopt the trailer bill language only to have it rendered meaningless by the Right to Privacy Act. However, public employers should consult their attorneys before adopting policies that discipline the listed public safety employees for use of cannabis during non-call and non-working hours due to potential liability under the Right to Privacy Act.

In addition, the trailer bill would prohibit discipline for the listed public safety employees based solely on the lawful possession or consumption of cannabis by members of the employee’s household. The bill would also confirm that the Cannabis Act does not limit the right to collectively bargain the subject matters contained in the Cannabis Act.

Random Drug Testing

If passed, the trailer bill would provide that the Cannabis Act will not create or imply a cause of action against an employer based on its reasonable workplace drug policies, including:

subjecting employees or applicants to reasonable drug and alcohol testing;

reasonable and nondiscriminatory random drug testing; and

discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.

This most-recent proposed legislation will hardly be the last word on cannabis, so stay tuned to Ancel Glink’s Municipal Minute and Workplace Report blogs as courts and the General Assembly continue to develop the state’s new cannabis laws. 

Authored by Daniel J. Bolin and the Ancel Glink Cannabis Response Team

Tuesday, November 19, 2019

IDOR Issues Draft Rules on Parking Excise Tax

Last week, we reported on draft legislation to amend the new parking excise tax statute that would make it clear that municipalities and other units of government are exempt from the excise tax - an issue that many local governments had raised since the initial legislation was enacted. Unfortunately, the legislative "fix" has not yet been enacted and it's getting closer and closer to the January 1st effective date of the parking tax. 

Last Friday, the Illinois Department of Revenue issued draft rules on implementation of the parking excise tax that may address some local government concerns.

The IDOR issued a Notice of Proposed Rules that included draft rules relating to implementation of the parking excise tax.  You can read the rules here. The important language for local governments is contained on page 13243 of the draft rules, which states as follows:
Any person, except the federal government, the State, municipalities, counties, and special districts, who engages in the business of operating a parking area or garage for consideration, or who, directly or through an agreement or arrangement with another party, collects the consideration for parking or storage of motor vehicles, recreational vehicles, or other self-propelled vehicles, at that parking palace, must collect and remit the tax imposed on the purchaser of the parking space. If the federal government, the State, municipalities, counties or special districts enter into an agreement with a third-party to operate the parking area or garage, the third-party must collect and remit the tax. Persons that operate 3 or fewer parking spaces are exempt from collecting the tax.
As you can see, the language of the "exemption" in the IDOR's draft rules is different than the exemption contained in the draft legislative "fix." In the draft rules, municipalities are exempt from the parking tax regardless of the amount of the parking fee imposed, where the legislative fix would only exempt parking fees that were at or below the legislative threshold. And in the draft rules, the tax would apply to municipal parking areas or garages where the municipality has an agreement with a third-party to operate the parking area or garage. The draft rules include an example that might assist municipalities trying to understand the scope of the "third party" operator agreement "exemption from the exemption" - see below:
EXAMPLE 5: A municipality owns and operates a parking area. It retains a company to install machines on the lot that accept electronic payments. The company also provides a mobile application that permits a person to pay for parking electronically. All payments made by a customer either by using the machine on the lot or the mobile application are paid to the municipality. The municipality pays the company a fee for its services. The municipality is the operator of the lot and, pursuant to Section 195.115(b), is not required to collect and remit the tax.
It remains to be seen how the two different exemption schemes can be reconciled but as we've said before, we will keep you posted.

Monday, November 18, 2019

PAC Provides Guidance on "General Subject Matter" for Agenda Items

The PAC issued its 12th binding opinion last week finding a municipality in violation of OMA for not identifying the general subject matter of an ordinance that was voted on at a city council meeting agenda. PAC Op. 19-012.

A complaint was filed with the PAC after an August 20, 2019 city council meeting where the council voted on an ordinance that increased permit application fees. The complainant argued that the agenda was not sufficiently descriptive to provide the public with advance notice of the general subject matter of the ordinance to be voted on, as required by section 2.02(c), which requires as follows:
Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting. 5 ILCS 120/2.02(c).
The PAC reviewed the city council's meeting agenda for the August 20th meeting, including the questioned agenda item. The agenda stated as follows for the ordinance in question:
d.  Consider and act on Ordinance 19-11 to Amend Section 33-4-4(F) 
The PAC analyzed the OMA requirement of "general subject matter," acknowledging that the OMA does not define that phrase and that there is no commonly understood meaning for the phrase. Finding the phrase ambiguous, the PAC reviewed the statute's legislative history, finding that one senator stated that the provision was intended to allow people who follow their units of local government to "know what they're going to be acting upon." 

The city argued that the item was descriptive enough because the public could consult the section that was proposed to be amended to determine the general nature of the matters. The PAC disagreed, finding that it wasn't clear that the section reference was to the city code, and in any event, the agenda itself needs to identify the general subject matter without the public having to decipher it themselves. As a result, the PAC determined that the agenda was not sufficiently descriptive under the OMA. 

It is worth pointing out that the PAC reviewed other items on the agenda and acknowledged that these other items did identify the subject matter of the item to be voted on. These included:
a. Consider and act on Resolution 19-07 Closed Session Minutes
b. Consider and act on Resolution 19-08 Authorizing the Destruction of Closed Meetings Sessions audio recording.
c. Consider and act on Resolution 19-06 Council Resolution of Support for CBD Grant
Based on this opinion, the city council could have added "....of the City Code regarding permit application fees" to the end of agenda item (d) and that would appear to satisfy the PAC's interpretation of 2.02(c)'s requirement that the item set forth the general subject matter of the resolution or ordinance. The PAC specifically noted that the amount of the increase in fees did not need to be identified on the agenda.

This opinion could provide valuable guidance to public bodies on what "general subject matter" means when describing agenda items. Simply stating that an ordinance is amending a particular section is not enough without identifying what is being amended and a brief description of the subject matter of the amendment.

Friday, November 15, 2019

Bill Would Restrict Local Authority Over Fence Alarms

A number of new bills are being introduced in the Illinois General Assembly, including some intended to address major pieces of legislation passed earlier this year, including the recreational cannabis law and the leveling the playing field statute that imposed numerous new taxes on Illinois residents. We will report on those as they move forward. Other bills with less public profile are also being introduced, including one that would affect municipal authority. 

If passed, SB 2308 would prohibit municipalities and counties from requiring a permit for the installation of a battery-charged fence alarm or from imposing any installation or operational requirements on these alarms. It also restricts municipal and county authority to prohibit the installation or use of a battery-charged fence. The bill preempts home rule authority. 

This is a pretty specific bill, and it was probably introduced to address a particular situation in one community. However, once it is enacted, it would restrict the authority of all municipalities and counties.

Thursday, November 14, 2019

Bill Would Exempt Most Government Parking Lots From Parking Excise Tax

You will recall that we reported previously (here and here) on the new state legislation that imposed a parking excise tax on parking garages and lots. That tax would range between 6% and 9%, depending on the parking fee. We raised a question as to whether the tax would apply to municipally-owned and operated commuter lots and garages. In our opinion, the language of the statute was not broad enough to apply to lots and garages operated by government entities. However, there appeared to be some confusion about that at the state level and municipalities were receiving mixed-messages about the application of the tax. The Illinois Municipal League had suggested to Illinois legislators that an statutory amendment was necessary to ensure that municipal lots and garages were not covered by the tax. 

The Illinois House just introduced HB3968 that would add a provision to address government parking lots and garages. If passed, parking lots or garages that are owned or operated by the federal government, state, municipality, RTA, Chicago park district, or any other government entity would be exempt from the tax if the parking fee does not exceed $3 for a 24 hour period or less, $15 for a weekly period, or $60 for a monthly period. It also exempts parking when the fee is paid by a federal, state, or local government entity.

This legislation will add certainty to this issue as municipalities have been receiving mixed messages as to whether the parking tax must be imposed and collected on commuters and others who use municipal parking lots and garages. 

Tuesday, November 12, 2019

Local Government Law Institute on December 4th

Calling all local government attorneys!  In less than a month, IICLE® will be hosting the 7th Annual Local Government Law Institute on Wednesday, December 4th at the One North Wacker Conference Center (UBS Tower) in Chicago. A Springfield Simulcast and Live Webcast will also be offered.

Learn about hot topics in local government law, including legalized cannabis, risk assessment, #me too, cyber-security, eminent domain, and housing. The program also includes a panel discussion featuring the Public Access Counselor's staff. The faculty will discuss legal issues relating to government use of social media. Ancel Glink's very own Julie Tappendorf and Kurt Asprooth will be speaking at the program. 

This program will offer 7 hours of MCLE credit, including 2 hours of Professional Responsibility credit. Included with your tuition, you can earn an additional hour of credit by watching IICLE's bonus e-learn session about affirmative litigation. 

View the program e-brochure here: or register here or by calling 1-800-252-8062.  

I hope to see you on December 4th!

Monday, November 11, 2019

FAQ on Employment-Related Issues with Adult Use of Cannabis

We have been getting a number of questions from our local government clients about employment-related issues with the upcoming legalization of cannabis in Illinois. The Workplace Report with Ancel Glink (our sister blog on labor and employment issues) recently posted a very helpful "FAQ"  on this very issue, answering a number of these questions. You can read the blog post on that blog here or below. Don't forget to visit The Workplace Report with Ancel Glink and subscribe!

The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1, 2020:

Can we still have a zero-tolerance employee drug policy?

Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work.

Should we still test for cannabis during post-employment drug and alcohol screens?

Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their system of evidence of cannabis use. This is long after the effects of cannabis have dissipated. Unlike alcohol, which people generally metabolize quickly, positive tests for cannabis use are highly unreliable in determining whether an employee is under the influence of cannabis while at work. While nothing prohibits an employer from testing for cannabis use as part of a post-employment drug screen, disciplining an employee solely on the basis of a positive test result for cannabis likely violates the Right to Privacy in the Workplace Act which prohibits any adverse employment action against an employee for their off-duty legal activities. Just as an employer cannot discipline an employee for having an alcoholic beverage off duty or smoking cigarettes or any other behavior that the employer may prohibit on duty, an employee who uses cannabis recreationally and consistent with the statute while off duty cannot be disciplined for such use.

A positive test for cannabis can be used as additional evidence of being under the influence while at work only as secondary or confirmatory evidence when the employer has established reasonable suspicion of such use. If an employer has reason to suspect that an employee is impaired by cannabis while working, management should clearly document all of the observed objective factors that support this suspicion. The law provides some guidance with regard to reasonable suspicion of cannabis impairment. Symptoms of impairment may include speech issues, problems with physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in the operation of machinery or equipment, an apparent disregard for the employee’s own safety or that of other employees, involvement in an accident or damage to the employer’s property, disruption of the workplace or negligent conduct that results in an injury to another employee. Unfortunately, many of these statutory factors may indicate other issues, such as a stroke or other physical impairment. Well documented symptoms of impairment by trained supervisors and managers are currently the strongest “test” for being under the influence of cannabis, which can be strengthened by a positive test result for the same.

So, employers can never use a positive test result for cannabis as the basis for discipline against employees?

No. Employees who must possess a CDL, certain law enforcement and employees who operate under federal grants can still be disciplined for cannabis use because cannabis is still illegal under federal law. Additionally, in Illinois, even after January 1, 2020, recreational cannabis use is still illegal for individuals under the age of 21. Employees under that age may still be disciplined solely on the basis of a positive cannabis test result.

Can we still include cannabis among the drugs tested in random drug tests?

Employers should no longer test for cannabis use as part of random drug testing except for CDL required positions, certain law enforcement personnel and those under 21 years of age, with the caveat for lawful medical cannabis use. Additionally, pre-employment drug screens should no longer include tests for cannabis as it will be a “lawful product” after January 1st.

How does the legalization of recreational cannabis affect our ability or need to regulate the use of medical cannabis?

The use of cannabis for lawful medical purposes has been the exception from discipline for qualifying individuals while cannabis is still an illegal drug for recreational use. After January 1st, employers will no longer need a medical cannabis caveat in their policies except for employees who are still prohibited from its use under federal law.

Do employers need to update their drug and alcohol policies?

Possibly. Since policies vary, it is important to review and when necessary, revise workplace drug and alcohol policies. Equally as important, is the need to revise employment practices in the workplace. Training or retraining supervisors and managers on reasonable suspicion indicators and updating forms that document such is essential. The strength of an employer’s disciplinary decision rests on how knowledgeable and thorough the process of determining reasonable suspicion is. Eliminating cannabis testing in pre-employment and random testing, except for DOT, some law enforcement and federally controlled positions will prevent allegations of violation of the Right to Privacy in the Workplace Act for adverse actions resulting from use of a lawful product while off duty.

Original post authored by Margaret Kostopulos, Ancel Glink

Thursday, November 7, 2019

Quorum Forum Podcast: Closed Session for Litigation

A new Quorum Forum Podcast Episode has just been released! 

In Episode 31: Closed Session for Litigation, Ancel Glink attorneys meet at the dog park to preview the 2019 Illinois Association of Park Districts Legal Symposium and significant court decisions affecting your district’s day-to-day operations. Later, we adjourn to closed session to talk about what  all units of local government should know about the Open Meetings Act exception for discussing litigation. 

What questions do you have about discussing litigation in closed session? Email us at podcast@ancelglink.com!

Wednesday, November 6, 2019

U.S. Supreme Court Declines to Hear Food Truck Case

We previously reported on a case that made its way to the Illinois Supreme Court involving a challenge to the City of Chicago's food truck ordinance. As we reported in the past, the operator of a cupcake food truck had challenged the ordinance on various grounds, including that the ordinance treated food trucks less favorably than traditional restaurants by prohibiting food trucks from locating within 200 feet of a brick and mortar restaurant with limited exceptions. The trial and appellate courts had rejected the food truck's claims, and the Illinois Supreme Court also upheld the City's ordinance. 

The food truck operator then filed a "writ of certiorari" with the U.S. Supreme Court asking that Court to take on the case. Just this week, the U.S. Supreme Court affirmatively declined to take the case, meaning that the Illinois Supreme Court's ruling in favor of the City of Chicago and upholding the City's ordinance will stand.

Tuesday, November 5, 2019

Sharing Meme Creates Controversy at Work

In yet another installment in a never-ending saga of "be careful what you post on social media," a 23-year old employee of a stone company claims he was fired after posting the following meme on his Facebook page:

As you can see from one of the comments and then the employee's response, the employee seemed surprised that the posting might create an issue with his job as in his view, he simply "shared a funny meme" while off-duty. But, as we have seen through other examples of similar social media postings, not all personal social media activities are protected, and the consequences of one "funny meme" can be pretty significant. 

The employer responded to the initial news story about this incident to contradict the employee's claim that he was fired for his social media activities. According to the employer, the employee was not fired for posting the meme, and in fact worked for two days after the posting before walking off the job. Now that the employee has retained an attorney, we may have to wait for a court decision to see which story carries more weight.   

Monday, November 4, 2019

PAC Issues 2 Binding FOIA Opinions

Last week, the Public Access Counselor of the Attorney General's office issued two new binding FOIA opinions. 

In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city had released other records relating to the incident, but withheld the body camera recordings, citing the Law Enforcement Officer-Worn Body Camera Act and the FOIA exemptions that protect records when there is an open criminal investigation. The county states attorney also supported the city's withholding of the recordings.

The PAC reviewed the city's denial and cited exemptions and rejected its argument that the recordings were exempt. Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act, and ordered release of the recording.

In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review. 

Friday, November 1, 2019

Parking Excise Tax Update

You may recall that we reported on a new excise tax enacted by the Illinois General Assembly that would impose a state tax on the use of parking facilities. As we noted in our post, the Act applies to any "person" who operates a parking area or parking garage as defined by the Act. The definition of person does not reference municipalities or other units of local government, so it seemed that the tax would  not apply to municipal parking garages and lots. As we noted in our previous report, we reached out to various state agencies and organizations to get more clarification on this interpretation. Unfortunately, we received inconsistent messaging on our interpretation. 

We wanted to update you, however, because we recently learned that the Illinois Municipal League is urging the General Assembly to amend the Act prior to it taking effect in January to expressly exempt municipal-owned parking facilities. Although we have not yet seen draft legislation, we hope this does, in fact, move forward soon. We are also waiting to see the rules that the Illinois Department of Revenue have been working on to implement this new tax.

As noted before, we will keep you updated as we learn more about this tax and any changes.

Thursday, October 31, 2019

Illinois Legislature to Consider Downstate Police & Fire Pension Fund Consolidation

On October 29, 2019, legislation was filed (Senate Bill 616, Senate Amd. #1) to implement the consolidation of the Downstate Police and Fire Pension Funds created by Articles 3 and 4 of the Pension Code. While this is only the initial draft of the legislation, the most meaningful takeaways from the bill are summarized below. In reviewing the changes, it is important to recognize that this bill is designed only to convert the local pension investment model into one more similar to IMRF.  As a result, there are certain compromises that make this only a half-step towards true pension reform.

1.  Local pension boards are not dissolved.  The bill does not eliminate the role of local pension boards in reviewing applications for pension benefits. The bill only takes away the investment authority from local pension boards and delegates it to one statewide pension board each for police and fire. 

2.  Consolidation will not occur overnight. The bill introduces a transition period during which the statewide pension boards will audit and verify each participating funds assets and take over custody and investment authority.  The transition period is intended to last no longer than 30 months from the effective date of the legislation.  During the transition period, municipalities may continue to establish actuarial assumptions which are not inconsistent with the Pension Code.  Likewise, the funding calculations based on those assumptions remain in local control.

3.  Municipalities will lose the ability to establish actuarial assumptions and independently set the actuarially required contribution.  Once the transition period concludes and the statewide board has custody over all pension assets, actuarial statements shall be prepared by or under the supervision of a qualified actuary retained by the statewide fund, and if a change occurs in an actuarial or investment assumption that increases or decreases the actuarially required contribution for the pension fund, that change shall be implemented in equal annual amounts over the 3-year period beginning in the fiscal year of the pension fund in which such change first occurs. The actuarially required contribution established by the statewide fund shall determine the annual required employer contribution, notwithstanding any formula or other language in Article 3 or Article 4 of the Pension Code to the contrary.  This change will result in mandatory pension contributions in the same manner IMRF creates mandatory employer contributions for the benefit of non-sworn employees. 

4.  Each municipality will have a separate pension account.  Some well-funded pension boards have expressed concern that the consolidation of pension funds for investment purposes will dilute their strong position. Fortunately, the bill addresses this problem directly. Each statewide board is directed to, “separately calculate account balances for each participating pension fund. The operations and financial condition of each participating pension fund account shall not affect the account balance of any other participating pension fund. Further, investment returns earned by the Fund shall be allocated and distributed pro rata among each participating pension fund account in accordance with the value of the pension fund assets attributable to each fund.” Based on this language, a fund's unfunded liabilities should not change simply because of the consolidation of investment authority. 

5.  Tier 2 benefits are adjusted.  The determination of final average salary and the calculation of survivor benefits for police and fire employees in Tier 2 (hired after 1/1/11) will be adjusted to address concerns that the current model may fail to qualify for an exemption from social security taxes.

Post by Adam Simon, Ancel Glink

Wednesday, October 23, 2019

PAC Finds Private Company Reports Not Proprietary Under FOIA

In the recent PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. 

The FOIA request came in response to a city ordinance requiring all manganese-bearing materials operators provide the city with quarterly reports concerning the amount of material being handled at their facilities. The city refused to hand over the manganese reports of the private entity, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information.

The PAC rejected the city’s argument that the disclosure of the manganese reports was proprietary and confidential, stating that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

Post Authored by Rain Montero & Julie Tappendorf

Thursday, October 17, 2019

Federal Court Upholds On-Site Drug Use at Safehouse

In a decision that could be of interest to municipalities seeking to combat the growing drug epidemic, a federal court in Pennsylvania recently ruled that safehouses do not violate the Controlled Substances Act when they provide facilities where drugs are used under monitored, sterile conditions. U.S. v. Safehouse.

Safehouse, a nonprofit directed at fighting drug addiction and overdose, sought to open an “Overdose Prevention Site” to offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. Specifically, the Safehouse facility plans to offer medication-assisted treatment, medical care, referrals to a variety of other services, and the use of medically supervised consumption and observation rooms. Drug users who choose to use the medically supervised consumption room will have access to sterilized consumption equipment and fentanyl test strips. Safehouse staff members  supervise the participants’ consumption and are ready to intervene with reversal agents to prevent fatal overdose. Safehouse staff does not, however, handle or provide any of the drugs to the participants.

After Safehouse announced its plans, the federal government filed a lawsuit claiming that the on-site consumption of illegal drugs at Safehouse’s facility violated the Controlled Substances Act, which prohibits any property owner from maintaining a place that facilitates the use of a controlled substance. On October 2, 2019, a federal judge ruled in favor of Safehouse and rejected the government’s contentions. In that ruling, the judge stated that the “the ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it.” The judge reasoned that the stated purpose for Safehouse’s facility was to administer medical care and encourage drug treatment by connecting drug users with social services, and that none of these purposes are consistent with a criminal intent to facilitate drug use.

Post Authored by Rain Montero & Julie Tappendorf