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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

Thursday, April 30, 2020

Upcoming Webinar on Remote Zoning Hearings May 5th

Zoning and planning folks will not want to miss APA-IL’s upcoming webinar on conducting remote public hearings during the COVID-19 pandemic. This webinar features Ancel Glink’s very own partners David Silverman and Greg Jones as speakers. 

More information about the webinar (which will also be recorded as an Ancel Glink Quorum Forum podcast) is below:

Join us on May 5, 2020 at 12:00 noon to discuss remote public hearings during a live recording of Ancel Glink's Quorum Forum podcast! In partnership with the APA-IL Legislative Committee, David Silverman, AICP and Greg Jones, AICP will share best practices for virtual public meetings and ensuring due process during public hearings with limited physical attendance.

Appropriately, the podcast will be recorded in an online meeting, and participants will be invited to share their questions with us during the event. Space will be limited, so click here to register today!

Quorum Forum 38: Remote Public Hearings

DATE: May 5, 2020

TIME: 12:00 PM (noon)


Treasury Department Issues Coronavirus Relief Fund Guidance

The CARES Act established a $150 billion Coronavirus Relief Fund (Fund) for states and eligible local governments with more than 500,000 in population. The State of Illinois, the City of Chicago, and Cook, DuPage, Kane, Lake, and Will counties will be the direct recipients for the Fund in Illinois. Small and mid-size local governments are watching to see if there will be other federal relief, or if any Coronavirus Relief Funds will pass through to them from the direct recipients. Meanwhile, the Treasury Department recently issued guidance to direct recipients last week that provides guidance on how pass-through funds might be used.

Payments from the Fund can only be used to cover costs that: (1) are necessary expenditures incurred due to the COVID-19 public health emergency; (2) were not accounted for in the budget most recently approved as of March 27, 2020 for the state or local government; and (3) were incurred during the period that begins on March 1, 2020 and ends on December 30, 2020.

Necessary Expenditures Incurred Due to the COVID-19 Public Health Emergency

The Department broadly interprets the term “necessary” to mean expenditures reasonably necessary for their intended uses in the reasonable judgment of government officials responsible for spending Fund payments. The Department cautions that funds cannot be used to fill shortfalls in government revenue to cover expenditures that would not otherwise qualify under the CARES Act.

Costs Not Accounted for in the Budget Most Recently Approved as of March 27, 2020

The “most recently approved” budget means the enacted budget for the local government’s relevant fiscal period, without taking into account subsequent supplemental appropriations enacted or other budgetary adjustments made in response to the public health emergency. A cost is not considered “accounted for” in a budget simply because it could be met using a budgetary stabilization fund, rainy day fund, or similar reserve account.

Costs Incurred from March 1, 2020 through December 30, 2020

A cost is “incurred” when an eligible local government expends funds to cover the cost.

Examples of Eligible Expenditures

Medical Expenses 
  • Expenses of public hospitals, clinics and similar facilities.
  • Expenses of establishing temporary public medical facilities and other measures to increase treatment capacity, including related construction costs.
  • Costs of providing COVID-19 testing, including serological testing.
  • Emergency medical response expenses, including emergency medical transportation related to COVID-19.
  • Expenses for establishing and operating public telemedicine capabilities for COVID-19 related treatment.

Public Health Expenses
  • Expenses for state and local governments to communicate and enforce COVID-19 related public health orders, including quarantining individuals.
  • Expenses for acquiring and distributing medical and protective supplies for first responders, social workers, child protection services and child welfare officers, direct service providers for older adults and individuals with disabilities in community settings, and other public health and safety workers.
  • Expenses for disinfecting public areas and other facilities and undertaking other public health measures.
  • Expenses for technical assistance to local authorities and other entities for mitigating COVID-19 related threats to public health and safety.

Payroll Expenses
  • Expenses for public health and safety, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency.

Expenses to Facilitate Compliance with Public Health Measures, such as:
  • Expenses for food delivery to residents, senior citizens and other vulnerable populations.
  • Expenses to facilitate distance learning and technological improvements in connection with school closings.
  • Expenses to improve telework capabilities for public employees.
  • Expenses of maintaining sanitation and improving social distancing in state prisons and county jails.
  • Expenses to care for homeless populations.

Expenses Associated with Providing Economic Support, such as: 
  • Expenditures for providing grants to small businesses to reimburse the costs of business interruption caused by required closures.
  • Expenditures related to a state and local government payroll support program.
  • Unemployment insurance costs related to the COVID-19 public health emergency if such costs will not be reimbursed by the federal government. 

Any other COVID-19-related expenses reasonably necessary to the function of government that satisfy the Fund’s eligibility criteria.

Examples of Ineligible Expenditures

Ineligible expenditures include:
  • Expenses for the state share of Medicaid.
  • Damage covered by insurance.
  • Payroll or benefits expenses for employees whose work duties are not substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
  • Expenses that have been or will be reimbursed under any federal program.
  • Reimbursement to donors for donated items or services.
  • Workforce bonuses except overtime or hazard pay.
  • Severance pay.
  • Legal settlements.

While the availability of pass-through funds is uncertain, all local governments should keep track of all of their COVOD-19 expenses so they are prepared to apply for possible relief from the Coronavirus Relief Fund or other sources.

Post authored by Eugene Bolotnikov and Daniel J. Bolin, Ancel Glink

Wednesday, April 29, 2020

Workplace Report: Employer Obligations Under Modified Stay at Home Order

Employers (both pubic and private sector) should read Ancel Glink's labor & employment blog The Workplace Report with Ancel Glink article on employer obligations under the Governor's modified stay at home order during the COVID-19 pandemic that takes effect on Friday, May 1, 2020 (see below - link to article in title): 

Late last week, Gov. Pritzker announced an extension of the stay at home order but loosened restrictions on some businesses. In exchange for relaxing some current restrictions, Pritzker ordered employers to provide greater protections for their workers by ensuring social distancing and providing protective equipment.

For the first time, the Governor included some specific direction for employers of essential businesses and businesses engaged in minimum operations as follows:

Essential Businesses and Operations and businesses engaged in Minimum Basic Operations need to take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
  • Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance; 
  • Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
  • Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
  • Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
  • Face Coverings and PPE. Providing employees with appropriate face coverings and requiring that employees wear face coverings where maintaining a six-foot social distance is not possible at all times. When the work circumstances require, providing employees with other PPE in addition to face coverings.
Employers should closely evaluate how their employees work, especially with regard to their proximity to each other and the public. Employers might take a lesson from stores like Costco and others that have marked six-foot distances on floors at cashiers, payment and/or service windows, and the like.

Be prepared to provide masks to those employees who, because of their duties, cannot socially distance from one another or the public. This includes employees who work in crews, such as public works employees. If masks are unavailable for purchase, offer to reimburse employees for providing their own masks. Make sure that your employees wear the masks correctly; covering the nose down over the chin.

While still also in short supply, provide plenty of hand sanitizer, soap, and water. Keep up regular frequent cleaning of work surfaces, especially those used by the public.

Finally, take heed of Pritzker’s order to offer separate hours of operation to members of the public who are elderly or vulnerable. While this is difficult to monitor or enforce, it is wise to publish special hours for seniors and others in need of extra protection from exposure on websites and other social media as well as in your facilities, pursuant to Governor Pritzker’s order of April 23, 2020.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Tuesday, April 28, 2020

Guidelines for Parks and Recreation Under Governor Pritzker's Modified Stay at Home Order

Although not final, we have reviewed a pre-filing draft of the Governor Pritzker’s anticipated Executive Order modifying the Stay at Home Order that will be effective from May 1 through May 31, 2020. For Illinois park districts and parks and recreation departments, here are relevant excerpts from the draft Order:

State and Other Parks and Outdoor Recreation Areas

Individuals may go to public parks and open outdoor recreation areas, including specific State parks that remain open for certain activities, as designated by the Illinois Department of Natural Resources. IDNR’s guidance can be found here.

Fishing and Boating

Fishing and boating in groups of no more than two people are permitted. 


Golf is permitted only when following the guidelines provided by the Illinois Department of Commerce and Economic Opportunity (DCEO). The link to the DCEO guidelines is here.

Places of Public Amusement

All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children’s play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, and country clubs or social clubs must remain closed to the public.


Playgrounds must remain closed.

Pools, Beaches & Splash Pads

Concerning pools, beaches and splash pads, IDNR has ordered the closure of the State’s beaches and has prohibited swimming. IDPH and IDNR are meeting on April 30 to discuss other water amenities such as public pools and splash pads. We will provide an update once we know the outcome of that meeting.  

Essential Government Functions

Each government body is authorized to determine its essential governmental functions and identify employees and/or contractors necessary to the performance of those functions. Essential Government Functions means all services provided by the state or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing essential government functions. 

Social Distancing and Face Coverings

In general, the limits on group activity and the 6 foot social distancing rule are continued but where the maintenance of the 6 foot rule is unlikely to be maintained by the nature of the activity, the Order requires the wearing of a cloth face covering. Those guidelines may have application to certain functions in the parks and interaction with the public generally.

Post Authored by Adam Simon and Derke Price, Ancel Glink

Monday, April 27, 2020

BREAKING: Workers Compensation Commission Repeals Emergency Rules

We previously reported on the new rule adopted by the Illinois Workers Compensation Commission creating a rebuttable presumption for first responders and frontline workers that they contracted COVID-19 while on the job for purposes of workers' compensation claims. That rule was almost immediately challenged in court as outside the Commission's legal authority, and a Sangamon County Court issued a TRO stopping the Commission from implementation of the rule. 

This morning, the Commission held a meeting and voted to repeal this new rule. That means that workers' compensation claims will be evaluated under current rules. However, we understand that the Commission intends to submit a request to the Illinois General Assembly that it adopt legislation to formally amend the Workers Compensation Act that would effectively create the same rebuttable presumption through legislation rather than through the Commission's emergency rules. It seems unlikely that the legislature will meet before June, so this issue may be on hold for the next six weeks or so.

DCEO Grants Available to Local Governments

As revenues decline during the COVID-19 pandemic, we are reminding local governments that the Illinois Department of Commerce and Economic Opportunity (DCEO) regularly posts available grants on its website. The following DCEO funding opportunities are presently available to local governments. Applicants must pre-qualify through the GATA Grantee Portal.

Rebuild Illinois Competitive Public Infrastructure Grant Program

This program helps local governments complete vital public infrastructure projects that will increase economic development opportunities and improve the quality of life in the areas improved. Local governments may also submit “on behalf of” applications for local entities otherwise ineligible to apply (e.g., rural water system, sanitary district, or an unincorporated area). The estimated total funding is $50,000,000, with single awards ranging between $250,000 and $5,000,000. Applicants must apply by June 30, 2020 at 5:00 p.m. Applicants must submit all required documents to DCEO’s Springfield Office. Cost sharing or matching is not required for this program. Applicants can charge indirect costs to a grant only if the entity has an annually negotiated indirect cost rate agreement (NICRA). For more information on the program, click here.

Rebuild Illinois Regional Economic Development Grant Program

This program provides grants to strengthen local economies and encourage the development of industry clusters. The estimated total funding available for the program is $16,500,000, with single awards ranging between $250,000 and $2,000,000. Cost sharing or matching is not required for this program. Applicants can charge indirect costs to a grant only if the entity has an annual NICRA. Applications can be made at any time until all available funding is exhausted. Applicants must submit all required documents to DCEO’s Springfield Office. For more information on the program, click here.

Rebuild Illinois Shovel Ready Sites Grant Program

This program provides funding for projects that entail substantial improvements to underused sites to make them “shovel ready” for future development and investment. When the project is complete, the site must be confirmed as available for sale and/or development, has appropriate zoning, boundary survey, clear title, environmental conditions, soil conditions, and infrastructure in place or engineer-planned. The estimated total funding available for the program is $13,000,000, with single awards ranging between $250,000 and $2,000,000. The program does not have cost sharing or matching requirements. Applicants can charge indirect costs to a grant only if the entity has an annual NICRA. Grant applications may be made at any until all available funding is exhausted. Applicants must submit all required documents to DCEO’s Springfield Office. For more information on the program, click here.

Opportunity Zone Program

DCEO is interested in attracting investment to Opportunity Zones throughout the state to boost under-served and economically distressed communities. DCEO will award grants to qualified applicants best demonstrating a plan to leverage the grant award towards impacting metrics like increasing local employment numbers, growing community businesses, increasing property values and obtaining further Opportunity Zone investment dollars. The estimated total funding available for the program is $12,000,000. This grant opportunity requires at least 50% of total project costs to be matched by the grantee. These matching funds can come in the form of local municipal funds, federal funds, or private investment. This grant opportunity is limited to capital improvement expenses. The grant will not compensate for indirect costs, overhead or administrative expenses associated with the execution of the program. All required documentation must be submitted electronically here and must be received no later than 5:00 p.m. on May 7, 2020. For more information on the program, click here.

Post authored by Eugene Bolotnikov, Dan Bolin, and Chris Welch, Ancel Glink 

Friday, April 24, 2020

BREAKING: Court Issues TRO to Stop New Workers Compensation Rules

Last week, we reported on the Workers’ Compensation Commission’s adoption of Emergency Rules that provide a rebuttable presumption that a diagnosis of COVID-19 in First Responders, Front Line Workers and Crucial Personnel in Essential Businesses arose out of and occurred in the course of their employment and is causally connected to the employment for purposes of a Workers' Compensation claim. 

Subsequently, the Illinois Manufacturers Association and Illinois Retail Merchants Association filed a lawsuit against the Commission in Sangamon County asking the Court to issue a temporary restraining order (TRO) to stop the Commission from implementing the new rules on the basis that the Commission exceeded its authority in passing those rules.  

Yesterday, a Sangamon County Judge entered a TRO that temporarily stops the Commission from implementing these new rules. The Attorney General (represnting the Commission in this case) has until April 30th to file a Response to the TRO in the circuit court, and the court has scheduled the case for argument on May 4th. The Commission could also decide to appeal the TRO. If the Commission does not appeal the TRO, or if the TRO is upheld, the circuit court will then have to decide the question of whether the Commission had the authority to adopt and implement these rules and whether to invalidate those rules permanently.

We will keep you posted on how this matter moves forward in the courts.  

Post Authored by Greg Rode, Ancel Glink

EEOC Says Employers Can Test Employees for COVID-19

Yesterday, the EEOC issued guidance on COVID-19 testing of employees (see language from the EEOC's website below). In short, the EEOC says that employers can administer a COVID-19 test to employees before allowing the employees to enter the workplace because an employee with the virus will pose a direct threat to the health of others. That assumes an employer can obtain tests, of course.  

You may recall that the EEOC had previously issued guidance saying that employers can take the temperature of employees during the COVID-19 pandemic.

The specific guidance from the EEOC's website on both of these issues is reprinted below:

The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. 
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Of course, if an employee comes to work with cold or flu-like symptoms, the recommended course of action is to send the employee home.

Thursday, April 23, 2020

BREAKING: Illinois Governor Announces Modified Stay at Home Order (May 1 to May 31)

As many of you may have already heard, Illinois Governor Pritzker has announced that he will be issuing a modified stay at home order that will take effect May 1st and end on May 31st. The executive order extends the previous stay at home order with some modifiations. Although we have not yet seen a copy of the final order (which should be posted tonight or tomorrow), we have summarized what we know about the changes and new requirements based on the Governor's press release this afternoon and other information.

Face Coverings Required Effective May 1st

Starting May 1st, anyone over 2 years of age must wear a face covering or mask when they are in a public place and cannot maintain a six foot social distance, including when shopping at stores and other businesses. 

Essential businesses and manufacturers will be required to provide face coverings to all employees who are not able to maintain six feet of social distancing. New requirements to maximize social distancing and the well being of employees and customers will be required, which might include staggered shifts and occupancy limits, among others.

Changes to Essential Businesses and Activities Starting May 1st

1.  Outdoor Recreation

The state will start a phased reopening of state parks. Fishing and boating in groups of no more than 2 people will be permitted, subject to restrictions adopted by IDNR. Golf will be allowed subject to strict safety guidelines provided by DCEO and subject to social distancing practices.

2.  New Essential Businesses

Greenhouses, garden centers, and nurseries can reopen as essential businesses. Animal grooming services may also reopen. All businesses must follow social distancing practices.

3.  Non-Essential Retail (Pick-up and Delivery)

Retail stores that were not designated as essential under the initial stay at home order can reopen to fulfill telephone and online orders through pick-up outside the store (i.e., curbside) and delivery.

4.  Medical Procedures

Surgi-centers and hospitals can allow certain elective surgeries to ove forward, subject to strict guidelines and priority for treatment of COVID-19 patients.

If any of these are changed or are supplemented when the modified executive order is released, we will provide updated information as soon as it is available.

Where Can Local Governments Find Short-Term Cash Flow Relief During the COVID-19 Crisis?

Although the CARES Act provides federal aid to state and local governments, there is no direct allocation of money to local jurisdictions with a population less than 500,000. As a result, most local governments have to request an allocation from their state or county governments. At the time of this post, the rules describing how Illinois and the collar counties will distribute the federal aid have not been published. In the meantime, many local governments are forecasting significant revenue reductions, either because of tax reductions or delinquencies or sharp losses of user fees. For this reason, this post explores somem of the short term borrowing options for local governments, including non-home rule units.

To begin, it is important to recognize that the borrowing powers of local governments have not changed. Although the Governor has issued dozens of Executive Orders, he likely does not have the authority to suspend debt limitations or unilaterally change the borrowing powers of villages, park districts, libraries, townships, etc. Therefore, this post serves as a reminder of the borrowing power local governments have always had, but never knew they needed until now. As with any loan, local governments should consult with their local attorneys and/or bond counsel to ensure all the substantive and procedural requirements are satisfied.

Working Cash Fund – If the local agency has a working cash fund, it should work like a private revolving line of credit for the major operating funds. Once the working cash fund is raised through property taxes, the principal amount in the fund can be loaned to the fund which has a cash flow deficit in anticipation of property taxes collected for that fund. Once the property taxes are collected they should be used to repay the working cash fund. Any investment income earned on the working cash fund may be transferred to another fund, but if it is not transferred it becomes part of the principal amount of the fund available for loans.

Tax Anticipation Warrants (“TAWs”) – A TAW is another short-term loan that is designed only to manage cash flow issues. Like the working cash fund, it is not designed to increase the amount of money available for a particular purpose. Rather, it simply changes the cash flow for a particular fund while the agency waits for property tax revenues. With several counties debating whether to delay tax payment deadlines or waive interest and penalties, tax anticipation warrants could help a public body which needs cash because of the delay in tax remittances. TAWs may be issued in an amount not to exceed 85% of the Agency’s last known equalized assessed valuation (“EAV”) multiplied by the maximum permitted tax rate of the issuer for the particular fund against which the TAWs are issued.

Interfund Loans – Local governments may also borrow the unused fund balance in one fund to support the short-term cash flow needs of another fund. For municipalities, there is express authority for this in the Illinois Municipal Code. For other local governments, the Investment of Municipal Funds Act allows one fund to purchase the tax anticipation warrants sold by another fund. In both cases, the loan must be repaid within one year. The benefit of this type of loan is the speed with which it can be executed and the fact that no bank is needed.

Promissory Notes – Some local governments also have the authority to take out short-term loans. However, not all agencies can borrow money for the same length of time. There is no tax levy which secures the repayment of this debt. Nonetheless, the loan is a general obligation of the agency and must be paid from any lawfully available sources of revenue, including but not limited to ad valorem taxes, state aid, and the general fund of the governmental unit. Unlike the earlier short-term loans, a promissory note will increase the amount of money available to the agency rather than simply shift cash flow.

Home rule units of government will have additional options available through their home rule powers. Local governments should contact their local attorney to discuss these options and others for addressing short-term cash flow issues. If you need special counsel services, Ancel Glink is available to assist local governments.

Post Authored by Adam Simon, Ancel Glink

Tuesday, April 21, 2020

Illinois Supreme Court Interprets Sick Leave Statute for Birth of Child

Last week, the Illinois Supreme Court issued a ruling providing guidance to school districts on how to apply section 24-6 of the Illinois School Code relating to sick leave for teachers who give birth at the end of the school year. Dynak v. Board of Education of Wood Dale School District.

A full-time teacher in a school district had notified the district that she was due to give birth on June 6th, the day before the end of the school year. She requested to use 1.5 days of accumulated sick leave on June 6th and 7th. She also requested to use 12 weeks of FMLA leave beginning on August 18th (the first day of the following school year) and 28.5 days of paid sick leave in conjunction with the FMLA leave. The district allowed her to use the 1.5 days of leave in June, but denied her request to use paid sick leave in conjunction with FMLA leave beginning on August 18th. The district supported its denial by informing her that she was not eligible to use sick leave or FMLA leave 10 weeks after the birth unless additional circumstances existed that qualified for that leave.

The teacher sued the district and the case made its way to the Illinois Supreme Court. The teacher argued that section 24-6 of the School Code does not specify that paid sick leave for birth must be continuous, when it must begin, or whether it must be completed within a certain amount of time after the birth. 

The Supreme Court first looked at how an intervening summer break affects a teacher’s right under section 24-6 of the School Code to use accumulated paid sick leave after the birth of a child. In the Court's view, the only reasonable way to interpret the statute’s allowance of sick leave for personal illness, quarantine at home, or serious illness or death in the immediate family or household is that the sick leave must be contemporaneous with the event. The Court noted that the provision requiring a teacher to provide a medical certificate after an absence of three days for personal illness was clear evidence that the legislature did not intend for sick leave to be separated in time from the actual illness. The Court further held that there was no evidence in the statute that the legislature intended to create a vested right in an employee to take paid sick leave on any days the employee chooses. 

The Court concluded that "[i]n the same way that sick leave for illness may not be disconnected in time from the illness, sick leave for birth may not be disconnected in time from the birth." As a result, under section 24-6, teachers may use up to 30 days of accumulated paid sick leave during the six-week period immediately following the birth. But, once that six-week period has elapsed, a teacher cannot use paid sick days for birth unless the teacher provides a physician’s certificate as required by the statute. So, the teacher was not entitled to use any paid sick leave for “birth” at the beginning of the school year when the birth took place at the end of the previous school year. 

Monday, April 20, 2020

Court Sends Case Back for Further Proceedings on Immunity Claim by Park District

Public bodies should take note of a recent appellate court decision as it applies to negligence claims against public bodies and immunity under the Tort Immunity Act. Torres v. Peoria Park District, 2020 IL App (3d) 190248. 

In Torres, the plaintiffs filed a suit against the Peoria Park District alleging that the District negligently caused their injuries when a pole affixed to the District’s campsite hammock fell and injured the plaintiffs. Plaintiffs also claimed that the District’s failure to warn plaintiffs about the dangers of erecting hammocks on campsite poles was willful and wanton conduct. The trial court dismissed the case, but the appellate court reversed, finding that plaintiffs had alleged enough facts to survive a motion to dismiss. The court noted that since the District allegedly knew its poles were 42 years old and District employees allegedly told plaintiffs that the poles could be used for camping purposes without informing them about the District’s policy prohibiting hanging hammocks, the court could not determine at this point in the case whether the District's actions were willful and wanton, meaning that the District would not be immune from liability under the Tort Immunity Act. The case was sent back to the trial court for further proceedings on that issue.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, April 17, 2020

Court Looks at "Deliberative Process" Exemption in Federal FOIA

A recent decision sheds light on the scope of FOIA deliberate process exemption relating to attorney communications about preliminary polices or actions in public records. National Immigrant Justice Center v. UnitedStates Department of Justice, No. 19-2088 (7th Cir. 2020).

The National Immigration Justice Center (“Center”) filed a FOIA request with the Department of Justice (“DOJ”) seeking certain communications between the Attorney General’s Office and any Office of Immigration Litigation or Office of Solicitor General attorneys relating to 11 certified immigration cases. The DOJ withheld 4,000 responsive pages under the federal FOIA’s "deliberative process" privilege exemption which protects attorney-client, work product, and deliberative communications

On appeal, the 7th Circuit Court of Appeals determined that the DOJ properly withheld these records under the deliberative process exemption. Specifically, the records contained attorney suggestions on draft opinions and deliberative communications about certain decisions created at the stage when the Attorney General certifies immigration cases for a decision. Contrary to the Center’s argument, the withheld records were not ex parte communications, because there was no pending litigation when the documents were created.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, April 16, 2020

Court Denies TRO to Stop Remote City Council Meeting

We have written a number of times about conducting remote meetings during the COVID-19 crisis, including summarizing the Attorney General's guidance and recent advisory opinions finding that two public bodies had not violated the OMA in conducting a remote meeting. We recently learned about a lawsuit brought against a municipality to challenge a proposed remote city council meeting to consider a controversial land annexation issue. 

In Evans v. City of Joliet, four individuals brought a motion for a temporary restraining order (TRO) and preliminary injunction on Monday asking a judge to issue a TRO against the City to stop it from conducting a meeting on a proposed annexation relating to a controversial warehouse, distribution, and manufacturing development called NorthPoint.

Plaintiffs made two arguments in their TRO motion. First, they claimed that the meeting was not "necessary" under the Governor's Executive Orders, including the Governor's stay at home order and the Governor's order allowing remote meetings of government bodies. Plaintiffs argue that there is no indication that the City will be harmed if the vote on the annexation is postponed until an "open" meeting can be held. Second, they claimed that the proposed remote meeting did not comply with the OMA requirement that meetings be "reasonably accessible." Specifically, plaintiffs argued that some residents may not have access to cable TV or the Internet to be able to watch the meeting. Plaintiffs argued that the City should have gone further in providing technical assistance to residentsit is  in how to attend the meeting and should have provided a phone number to answer questions and assist residents, or alternatively, should have made accommodations for residents to attend the meeting in person. 

The motion was filed on Monday morning, and the Court held a hearing by conference call on Monday afternoon. The Court first determined that the issue of whether a meeting is necessary or not is up to the City and its elected officials, and not the Court, to decide. Second, the Court determined that the City had provided a "reasonable opportunity to participate" to members of the public by announcing the meeting five days in advance, permitting the public to comment by telephone and email, streaming the meeting live on the City's website and on public access television, and recording the meeting and making it available on the City's website after the meeting. The Court noted that a very small segment of the population may not have access to the Internet or cable TV but that did not make the City's meeting illegal. 

In sum, the Court did not find a violation of the OMA and denied the request for a TRO to stop the meeting.

You can read the court order and the plaintiffs' TRO motion here.

Wednesday, April 15, 2020

Court of Appeals Dismisses First Amendment Challenge Related to "Right to Work" Ordinance

On April 7, 2020, the 7th Circuit Court of Appeals issued an opinion in the case O'Brien v. Village of Lincolnshire upholding the district court's dismissal of a complaint filed by two unions and their resident members against the Village of Lincolnshire. 

In 2015, the Village Board adopted an Ordinance Pertaining to Economic Development and Worker Empowerment by Regulation of Involuntary Payroll Deductions for Private Sector Workers in the Village of LincolnshireThe purpose of the ordinance was to exercise the Village’s home rule power to create a local worker empowerment zone, also known as a “right to work” zone, to give private sector workers more individual freedom to choose whether they wanted to affiliate with a union, rather than being subject to compulsory fair share dues as required by state law. The ordinance became the target of numerous legal challenges by the unions which were decided separately from the subject case.

The unions argued that the Village’s use of taxpayer funds to pay membership dues for the Illinois Municipal League represented a violation of their First Amendment rights. They supported their argument on the holding in the U.S. Supreme Court's Janus case that the government cannot force a citizen to subsidize private speech with which the citizen disagrees. However, the Court disagreed with the fundamental premise of the plaintiff’s claim – that the Illinois Municipal League’s political advocacy is “private speech.” Instead, the Court held that any speech expressed by the Illinois Municipal League is “government speech” because (a) the Illinois Municipal League is comprised solely of municipalities, (b) its political advocacy is controlled by member municipal officials, and (c) the Village always retains discretion to disavow the League’s speech or withdraw from membership.

Many cases have held the First Amendment does not regulate or limit government speech. As a result, the unions could not state a claim for a violation of the First Amendment based on the Village’s “government speech.” As the Court noted, if taxpayers had the right to challenge every policy statement by local officials with which they disagreed, it would cause the operation of local government to come to a halt from all of the litigation. The proper place to hold local government officials accountable is the ballot box.

As a result, the Court ruled in favor of the Village and dismissed the unions' case.

Post Authored by Adam Simon, Ancel Glink

Tuesday, April 14, 2020

Workers' Compensation New Rule for COVID-19 Claims

On April 13, 2020, the Illinois Workers’ Compensation Commission held a telephone meeting and passed a new rule that would impact a large number of Illinois local governments that have essential employees who might allege injuries as a result of exposure to the COVID-19 virus.  

The new rule provides for a rebuttable presumption that any exposure to the COVID-19 virus will be presumed to have "arisen out of and in the course of petitioner’s COVID-19 First Responder or Front-Line Worker employment." It also provides a rebuttable presumption that the exposure was "causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front Line Worker employment.” The new rule is effective for a maximum or 150 days.  

What this means for local government employers is that many of their essential employees (including First Responders and "Front Line Workers"), as well as front line workers in private businesses, may have an easier time collecting workers’ compensation benefits if they are infected by the COVID-19 virus.  

The emergency rule applies to two categories of employees: (1) First Responders and (2) Front Line Workers.

(1) “First Responders” are defined as police and fire personnel, paramedics, emergency medical technicians, corrections personnel, and health care providers.  

(2) "Front Line Workers” are defined to include those employees who work in certain of the businesses defined as "essential businesses" exempted by the Governor's stay at home order (not an exclusive list):

  • Stores that sell groceries and medicine
  • Food, beverage, and cannibas production and agriculture
  • Organizations that provide charitable and social services
  • Gas stations
  • Financial institutions
  • Hardware and supplies stores
  • Critical trades
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Educational institutions
  • Laundry services
  • Restaurants for consumption of off-premises
  • Supplies for Essential Businesses and Operations
  • Transportation
  • Home-based care and services
  • Residential facilities and shelters
  • Professional services
  • Day care centers for essential employees 
  • Critical labor union functions
  • Manufacture, distribution, and supply chain for critical products and industries
  • Hotels and motels
  • Funeral services

For local government employers, this means that if one of these covered employees develops the COVID-19 virus, it will be rebuttably presumed to be work-related which could impose additional obligations on the employer to pay the employee’s medical care, provide time away from work, and possibly pay a disability settlement or death benefits to the employee’s family. An employer will have the opportunity to present evidence to rebut the presumption that the virus was work-related, but it may be difficult to establish the origins of the virus in some cases.

As you would expect, there were some immediate objections to the new rule since it was adopted. Some have raised concerns about the Commission's authority to substantively amend state law without legislative action. Although Section 13 of the Workers' Compensation Act authorizes the Commission to administer the Act, and Section 16 authorizes the Commission to  make and publish procedural rules for carrying out the duties imposed on it by the Act, there does not appear to be any express statutory authority for the Commission to make a substantive change to the Act. Others have raised concerns about the process by which the Commission considered the rule and whether that process complied with the Open Meetings Act. 

We will continue to monitor the Commission’s decisions on COVID-19 injuries and will report any legal challenges that may be made to this emergency rule.

Post Authored by Britt Isaly, Doug Sullivan, and Greg Rode, Ancel Glink

Most Frequently Asked Questions About "Essential Businesses"

As all Illinoisans know, last month, the Governor issued a "stay at home" order that has been extended through the end of April. That executive order requires, among other things, that all non-essential businesses and operations cease except for minimum basic operations relating to maintenance of inventory, payroll, and security. Since that executive order was issued, there have been a lot of questions from residents, business owners, and government bodies as to which businesses are considered "essential" and can continue to operate and which are not.

The Governor's executive order categorizes the types of businesses that are essential and non-essential, which you can read here. In addition, Illinois Department of Commerce & Economic Opportunity (DCEO) published guidance on essential businesses that they recently updated. You can read that guidance here. The DCEO's website also includes a lot of information about essential and non-essential businesses which you can access here. Finally, the Governor has been issuing daily communications that often include information about the types of businesses that are considered essential (or not). 

Today, we thought we'd share some of the information we have gathered from a variety of resources published and communicated by the State (including the Governor and DCEO) about the types of businesses that are considered essential (or not essential) under the Governor's stay at home order.

Essential Businesses that can continue operation with social distancing measures in place (not intended to be an exhaustive list) 

Restaurants and coffee shops (for delivery, drive-through, or pick-up only)
Grocery stores
Convenience stores
Farmers markets and farm and produce stands
Garden centers and nurseries (limited to delivery or pick-up of online/phone orders or for agricultural operations)
Landscaping and lawn services services
Hardware stores
Housing construction
Building maintenance
Moving companies
Car washes (exterior only and automated only)
Gas stations
Auto repair
Bike shops
Pet supply stores
Animal shelters
Financial institutions
Currency exchanges, pay day lenders, and pawn shops
Critical trades (plumbers, electricians, exterminators, cleaning and janitorial staff, security)
Mail, post, shipping, and delivery services
Laundry and dry cleaning
Supplies for essential businesses or to assist employees to work from home (computers, IT and telecommunications equipment)
Transportation (air, taxi, ride-sharing)
Home-based care
Residential shelters
Day care centers for essential employees
Funeral services
Cannabis dispensaries
Professional services (accounting, appraisal, real estate, legal)
Eye care
Cell phone stores
Gun shops

Non-Essential Businesses that must cease operations except for basic minimum operations such as payroll, maintenance of inventory, security (not intended to be an exhaustive list)

Fabric and craft stores
Gaming stores
Golf courses
Movie theaters, including drive-in theaters
Bowling alleys
Country or social clubs
Hair salons and barbershops
Nail salons 
Massage therapy
Tattoo parlors
Mattress sales
Pet groomers
Beauty supplies
Fitness centers and gyms
Tobacco and vape stores
CBD stores
Auto sales (except by appointment)

Please feel free to share any interpretations you have received from DCEO or other state officials on essential and non-essential businesses and we will update this post in the future.

Monday, April 13, 2020

5G Antennas and COVID-19

Recently, a number of Illinois municipalities have received resident requests to place a moratorium on the construction of 5G small wireless facilities during the COVID-19 emergency. The text of the request includes some form of the following language:
We ask that you impose a moratorium on “small cells” and other wireless infrastructure permits process and deployment until the COVID-19 emergency is over. 
The wireless providers are using the COVID-19 emergency as cover to expand and cement their rapid and virtually unsupervised deployment of harmful wireless infrastructure. Our local leaders should not have to dedicate time and resources to policing whether the wireless companies are following local and state law, they have far more important things to do.
This post explains the rights and obligations of both the wireless carriers and municipalities related to the construction of small wireless facilities. In brief, a moratorium is inappropriate, but a municipality could delay the issuance of new permits based on the limited availability of staff to review applications and plans during the term of Governor Pritzker's Executive Order 10, as extended by Executive Order 18.

The best place to begin is with the Governor’s Executive Order that imposed the stay at home restrictions. Originally issued on March 20th, it has been extended through April 30, 2020. While the name of the Order is simple enough, it contains almost as many exceptions as restrictions. For the purpose of this inquiry, it is important to be aware that the Executive Order provides for an exception for “Essential Infrastructure” which is defined as follows: 
Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
Based on this language, the on-going deployment of small cell antennas by telecommunications carriers does not violate the Executive Order and is permitted to continue.

Next, we can look at the Illinois Small Wireless Facilities Deployment Act, 50 ILCS 840/1, et seq.  The Act is the State law which governs how local governments must license or permit the erection of small wireless facilities within their jurisdiction. The Act grants wireless carriers the right to place small wireless facilities in the right-of-way, subject to reasonable local regulations which are not inconsistent with the law. Most communities have adopted and enforce regulations for this purpose, so it is inaccurate to state the construction of small wireless facilities goes unsupervised. If your community does not have a small wireless facility regulation, you should consult with your local attorney. Numerous model ordinances for this purpose were made available to municipalities when the Act was adopted.

The Act does not permit a local government to adopt a moratorium, which is a temporary or permanent refusal to accept applications for permits. The Act provides for a strict timeline by which a local government must normally review and respond to a permit application.  For example, within 30 days after receiving an application, the City must determine whether the application is complete.  Additionally, an application to collocate a small wireless facility must be processed within 90 or 120 days, depending on whether a new utility pole will be erected. The Act does permit a city to delay action on permit applications in limited circumstances, including a local, State, or federal disaster declaration or similar emergency that causes the delay. 50 ILCS 840/15(d)(10)(B).  

Based on the information provided above, here is a summary of how small wireless device construction can continue during the pandemic:

A)  Carriers who already have permits may perform construction to exercise the rights granted by those permits;

B)  Carriers may continue to submit applications for new small wireless facility installations;

C)  Each local government will exercise its authority to review the applications under locally adopted regulations which are not inconsistent with the Act; and

D)  Each local government will process permit applications as it normally does.  A permit official may delay final action on a permit application if the delay is caused by a local, State or federal disaster declaration or similar emergency.  The delay described in should not be an indefinite delay, but only what is necessary to permit staff to review the application in light of the restrictions in place on the City’s employees during the current emergency. 

On a related note, if you get other resident concerns about 5G being somehow related to the spread of the coronavirus, FEMA has kindly added it to their rumor page.

Post Authored by Adam Simon, Ancel Glink

Friday, April 10, 2020

Federal Pandemic Unemployment Compensation Update

We have received many questions asking about the additional $600 Federal Pandemic Unemployment Compensation (FPUC) benefit payment for eligible recipients, and specifically whether local government employers are responsible for paying or reimbursing the State for the $600 FPUC benefit.   

Recently, the Department of Labor issued new guidance on this very issue, entitled Unemployment Insurance Program Letter (UIPL) 15-20. The UIPL 15-20 expressly states that the $600 payment to eligible individuals under the FPUC program is 100% federally funded. The UIPL 15-20 also clearly states that States may not charge employers, including local governmental employers, for any FPUC benefits paid under the CARES Act.

Section 2104 of the CARES Act created the temporary FPUC benefit program. The CARES Act specifies that FPUC benefit payments will end after payments for the last week of unemployment before July 31, 2020. 

For more information about the operating, financial, and reporting instructions for the FPUC program, please refer to UIPL 15-20.  

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, April 9, 2020

UPDATE to Attorney General Guidance on FOIA & OMA

On March 18, 2020, we reported on the Illinois Attorney General's release of guidance to public bodies on compliance with the OMA and FOIA during the COVID-19 pandemic. You can read a summary of that Guidance in our blog post here. [Note that the link in that blog post now leads to the updated guidance issued April 8th and discussed below]

Today, the Attorney General released an update to its Guidance to Public Bodies on the Open Meetings Act and the Freedom of Information Act during the COVID-19 Pandemic dated April 9, 2020. Much of the March 18th Guidance is still there, but it has been updated to reflect the Governor's extension of the stay at home order and to address meetings that are held entirely remotely. The Updated Guidance also includes additional guidance on compliance with FOIA deadlines. 

The following is a summary of the updated language in the Updated Guidance:

Background Section Added

The Updated Guidance includes a new section summarizing the Governor's Disaster Proclamations and Executive Orders. That section emphasizes the authority of local governments to determine for itself what functions and employees are "essential" under the stay at home order. [Note this does not include the ability for a public body to determine that FOIA is not "essential" - see discussion below]

Cancellation or Postponing of Meetings

The Updated Guidance emphasizes the ability of public bodies to cancel or postpone meetings if the public body does not have critical issues that must be addressed. The Updated Guidance reminds public bodies to post notice at its main office and on its website when it cancels meetings.

Convenient and Open Meetings

The Updated Guidance includes recommendations for meetings that are held entirely remote/electronically, including the following:
  1. The notice/agenda for a remote meeting should include instructions on how the public can access the meeting remotely. 
  2. Public bodues should ensure that the public has the means to both observe and comment during the remote meeting. For example, call-in or log-in information can be shared on the meeting notice.
  3. Public bodies should offer multiple ways for the public to access the meeting, such as providing both a telephone number and a weblink so people without internet service can access the meeting.
  4. Public bodies that use a third party resource for conference call or other virtual meeting programs should exercise caution to avoid hijacking of the meeting by outside sources and to protect user privacy and security.
  5. Public bodies should record the remote meeting and post those recordings on their websites so members of the public who cannot attend a remote meeting can access the recording after the meeting. 
  6. Public bodies are encouraged to provide remote access to members of the public even if some members of the public body will be in attendance in person so those who are subject to an isolation or quarantine order are able to access the meeting.

Public Comment at Meetings

The Updated Guidance recommends that public bodies consider taking public comment by email or other written submission and reading those public comments into the record of the meeting. If a meeting will be convened remotely, the public body should provide multiple ways for the public to comment, including telephone or video call-in capabilities in addition to the emailed/written comments.

Freedom of Information Act Deadlines

The Updated Guidance includes new language stating that the Attorney General does not have the authority to modify or suspend FOIA's statutory deadlines, and that any such change to a state law would have to come from the Governor in the form of an executive order or by legislative act. The Updated Guidance also seems to reject any argument that a public body could determine for itself that FOIA is not an "essential government function" under the Governor's stay at home order. As a result, public bodies must continue to comply with FOIA, although they can take the five-day extension allowed by FOIA and come to a mutual agreement with the requester for a longer time-frame for response.

New to the Updated Guidance, however, is language that the Attorney General acknowledges the difficulties public bodies are facing with the current limited staffing and resources most are operating with due to the stay at home order. The following paragraph suggests that public bodies could set reasonable time periods beyond the statutory deadlines if they are "unable to meet statutory deadlines due to the circumstances surrounding COVID-19":
Public bodies that are unable to meet statutory deadlines due to the circumstances surrounding COVID-19 may determine it is appropriate to set reasonable time periods beyond the statutory deadlines within which to respond to FOIA requests during this time of crisis. Determinations about reasonable extensions should take into consideration the extent to which public bodies have staff members with the necessary expertise and resources available to respond to FOIA requests given the exigent circumstances. Please note that when the restrictions of the statewide disaster proclamations are lifted, public bodies will be required, once again, to comply with all applicable time periods and deadlines set out in FOIA.
It is not clear how this seemingly more flexible language about complying with statutory FOIA deadlines squares with the Attorney General's statement that it lacks authority to modify or suspend the statutory deadlines. As a result, a best practice would be for public bodies to first try to work with the requester to come to an agreeable extended deadline. Then, if the requester refuses to agree to an extension and will not narrow his or her request to a more manageable proportion that the public body can fulfill, then the public body could consider invoking the "unduly burdensome" provision.