What are our Local Government Powers During a Civic Emergency?
While socially distancing, we have received a number of calls and emails from
local government clients, friends, and attorneys asking about legal issues
related to Coronavirus - COVID-19. We
have been compiling questions and best practices related to local government legal
issues. We are not doctors or infectious
disease specialists, so we make no attempt to advise you on public health
policy issues. However, we want to make public bodies aware of their legal
obligations and responsibilities to minimize potential liability for failing to
follow laws during this public health crisis. We will address these topics in a
series of articles. If you have an additional question you would like us to
address, please email us.
As we discuss these issues, please keep the following in mind:
- This is a fluid situation, changing very
rapidly. This is our best guidance based on what we know now and what is
occurring in Illinois now. This is different than what our guidance would
have been 48 hours ago, and it could change again over the next few hours.
- Different governments may handle
situations differently, based on their powers and functions. For specific
advice for your public body, speak with your attorney.
- Local governments vary widely in size
and the scope of services they provide. The local government next to you
may be handling things very differently than you.
- If your public health department or your
legal advisor is recommending that you do something different from what we
are telling you, you should go with the advice from the people who most
closely know what is happening in your locale.
Today, we will address the powers the local governments may exercise in the event of a civic emergency. Many of the additional topics we will address will relate back to these questions: What can our local government be doing? What should we be doing? What can’t we do? All of these questions require us to start with a look at fundamental governmental authority during a time of crisis.
As you likely know, Governor Pritzker has declared a state of emergency
related to Coronavirus Covid-19, and he has issued several executive orders
related to the management of COVID-19.
He is given the power to make such a declaration and take such action
under the Illinois Constitution and under the Illinois Emergency Management
Agency Act, 20 ILCS 3305/1.
So, can local government officials make similar declarations?
It depends on your type of government. First, the principal executive
officer of a municipality, or of a township located in a county having a
population of more than 2,000,000, may make a local disaster declaration
pursuant to 20 ILCS 3305/11. The effect
of this declaration is to activate the emergency operations plan of that
political subdivision and to authorize the furnishing of aid and assistance
under that plan. This is only helpful if your local government has adopted an
emergency operations plan.
Second, under Section 11-1-6 of the Illinois Municipal Code, municipal
officials have the ability to pass an ordinance granting the mayor the
extraordinary power and authority to exercise by executive order, during a
state of emergency, such powers as the corporate authorities may deem necessary
to respond to the emergency. The ordinance must establish standards for the
mayor’s determination of when a state of emergency exists. The mayor has to
sign an oath stating that the standards have been met and declaring a state of
emergency. The oath must be filed with the municipal clerk. If you have already
adopted such an ordinance (you should check your city or village code to see if
this type of authorization is already there), the mayor can act pursuant to
it. Otherwise, before the mayor can act,
your board has to pass the appropriate enabling ordinance.
Many municipalities have adopted these ordinances to permit mayors to
exercise broad powers in all different types of emergencies. That may be a good
practice, so that when an emergency arises, the mayor may exercise the
appropriate responsive powers. However, in the event that your mayor declares a
state of emergency, we recommend that the mayor limit the exercise of emergency
powers to only those related to combating the issues raised by this epidemic. For
example, your ordinance could broadly give your mayor the ability to combat any
type of emergency – ranging from terrorism, war, rioting, to tornados. However, the actions the mayor may need to
take to combat rioting are much different than those needed to address fallout
from a tornado or to combat the spread of infectious disease. If it doesn’t make
sense to have your mayor restrict the sale of combustible liquids or weapons to
combat COVID-19, don’t include those powers in the declarations of what the
mayor may exercise in the case of this particular public emergency.
Third, government officials have the ability to name emergency interim
successors in office pursuant to 5 ILCS 275/7. This would provide your
government with a succession plan, if needed.
But what about park districts, libraries and townships? Unlike for the state and municipalities and
townships that are in counties with populations in excess of 2,000,000 in
population, there are no specific statutes that give these government bodies
the ability to declare a state of emergency.
Our next series of posts will provide guidance as to best practices in
the absence of being able to officially declare an emergency.
As for townships, you do have expanded powers to provide emergency
financial assistance and household assistance for 90 days after a presidential
declaration of a major disaster or emergency.
There are specific rules about the expanded use of general assistance
funds in such situations. You cannot use
State funds to provide relief, but you may provide relief to families in need
without regard to traditional eligibility requirements pursuant to 305 ILCS
5/6-9 and 6-10. Make sure to review
these laws if you are providing extra financial assistance to your impacted
residents.
Stay tuned for our next post,
which will address open meetings and governance issues.
Post Authored by Keri-Lyn Krafthefer, Ancel Glink
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