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Monday, March 16, 2020

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:

  1. 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.
  2. Different governments may handle situations differently, based on their powers and functions. For specific advice for your public body, speak with your attorney.
  3. 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.
  4. 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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