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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

Friday, May 29, 2020

UPDATE: EO 2020-39 Addresses Remote Meetings (OMA)

Thank you to a Municipal Minute reader for forwarding a copy of Executive Order 2020-39 that extends certain previous EO's, including the suspension of the in-person requirements for public meetings under the OMA. Pursuant to this new EO, EO 2020-07, as amended by EO 2020-33, is reissued and extended through June 27, 2020, or until SB 2135 is enacted and takes effect, whichever occurs first.

So, public bodies can move forward with remote meetings based on the previous EO, as extended by this new EO 2020-39.

There is a lot more to this EO which we will report on next week. 

Governor Pritzker Issues New Disaster Declaration and Phase 3 EO

Yep, it's Friday, the day of the week we seem to get the most important and relevant information from the State of Illinois!

Today, Illinois Governor Pritzker issued a new Disaster Declaration over all counties in Illinois and a new Executive Order 2020-38 describing the new regulations for Phase 3 of the Restore Illinois Plan. The documents have not yet been posted on the state's website, but you can read the Declaration here and the Executive Order here


General Authorizations

The Disaster Declaration declares the entire state a disaster area due to COVID-19. It directs various state agencies, including the Department of Public Health (IDPH) and the Illinois Emergency Management Agency to develop and implement strategies and plans to address the impact of the pandemic on residents, including expanded testing. The Illinois Board of Education is directed to address any impact to learning during the pandemic. All state agencies are directed to cooperate with the Governor, other state agencies, and local governments in disaster relief operations.

Open Meetings Act

Important to local government bodies is Section 12 which addresses remote meeting attendance. Previously, the Governor had suspended certain provisions of the Open Meetings Act requiring in person attendance at meetings of public bodies by Executive Order 2020-07, as extended. This Disaster Declaration does not extend the previous EO on remote meetings and instead references Senate Bill 2135 that amends the OMA and the Governor's finding that the public health  concerns raised by the COVID-19 pandemic renders in-person attendance of more than 10 people at the regular meeting location not feasible. 

At the time this blog post was published, Senate Bill 2135 had not yet been signed, so hopefully that happens sooner rather than later to ensure that public bodies have the guidance they need to proceed with remote meetings.


Social Distancing

The EO continues the previous social distancing requirement that individuals using shared spaces outside of their residence should maintain social distancing of at least six feet from others who they do not live with. 

Face Coverings

The EO continues the previous face covering requirement for all individuals over the age of two when they are in a public place and unable to maintain a six foot social distance, with medical exemptions. The requirement applies to indoor spaces, as well as outdoor areas where maintaining a six foot social distance is not always possible.

Limits on Gatherings

The EO prohibits any gathering of more than 10 people unless exempt under the EO, and encourages remote gatherings.

Go Outdoors

The EO encourages residents to conduct activities outdoors, consistent with public health guidance that the risks of transmission of COVID-19 are greatly reduced outdoors.

Guidance for Businesses and Other Organizations

Consistent with the previously released business guidelines and toolkits, the EO establishes certain guidance for businesses allowed to reopen in Phase 3, including encouraging remote work where possible, requiring employees to wear face coverings and practice social distancing, among others. The EO includes the various categories of businesses and organizations covered by the more specific guidelines previously released by the state. 

Businesses and other organizations are encouraged to read both the EO and the specific guidelines tailored for their operations to ensure compliance with the new restrictions. These requirements may include designating six foot distances between employees and customers, providing adequate hand sanitizer products for employees and customers, separate operating hours for vulnerable populations, providing remote access where practical, and ensuring adequate face coverings and PPE for employees in certain cases.


The EO contains the following exemptions:

1. Free exercise of religion. The EO expressly states that it "does not limit the free exercise of religion." Places of worship are encouraged to follow the recommended practices and guidelines published by the Illinois Department of Health (we will be reporting on those next week, so stay tuned), which suggest drive-in or outdoor services.

2. Emergency functions. The EO exempts the activities of first responders, emergency management personnel, dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support emergency, although the EO encourages social distancing and other recommended public health measures.

3. Governmental functions. The EO provides that it does not apply to the US government, and does not affect 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.


Like previous EO's, state and local authorities are authorized to enforce under the IEMA. 

Upcoming Quorum Forum Podcast - "Live" Local Gov Legislation Update

Ancel Glink's Quorum Forum Podcast will be "live" on Monday, June 1st at 5:00 p.m. for Episode 39: Local Gov Legislation with Rep. Chris Welch.  Information about the upcoming podcast and how to register is below:

The Illinois General Assembly recently concluded a socially-distanced special session unlike any other, sending lots of legislation affection local governments to the Governor. Join us for a web conference with Ancel Glink partner and State Rep. Chris Welch on Monday June 1, 2020 at 5 pm to discuss local government funding, remote meeting attendance, cocktails to-go, and more! 

Our conversation will be recorded for Ancel Glink's Quorum Forum podcast, so email us your questions about new local government legislation to podcast@ancelglink.com, and click here to register!

Thursday, May 28, 2020

General Assembly Sends Remote Meetings Bill to Governor

During the COVID-19 pandemic, many local governments have been meeting by audio or video conference without a physically present quorum, consistent with the executive orders signed by Governor Pritzker.

During its recently concluded special session, the Illinois General Assembly passed legislation that will help local governments hold meetings without a physically present quorum during a declared public health disaster, such as those related to COVID-19. If Governor Pritzker signs SB 2135, as expected, local governments may have to adjust their remote participation practices to ensure their meetings comply with the new law.

Under the bill, public bodies may hold open or closed meetings by audio or video conference without a physically present quorum under the conditions described below.

Preparing for the Meeting

Disaster Declaration Required

First, the Governor or the Illinois Department of Public Health must make a disaster declaration for all of part of the public body’s jurisdiction related to public health concerns. The recent Gubernatorial Disaster Proclamations related to COVID-19 would satisfy this condition while they are in effect.

Determination by Head of Public Body

Next, the president, mayor, chairman, or other person holding primary executive and administrative authority for the local government must determine that an in-person meeting would not be practical or prudent because of the disaster.

Notice to Public Body Members and News Media

The public body must notify its members, and the news media that requested notice of meetings, that the meeting will be held by audio or video conference without a physical quorum. The notice should also be posted on the public body’s website.

In the case of a bona fide emergency, notice should be given to the news media that requested notice as soon as practicable, but in any event prior to the holding of such meeting. The presiding officer must state the nature of the emergency at the beginning of the meeting.

Notice of Alternative Public Attendance

If the disaster makes physical attendance by the public unfeasible, the public body must make alternative arrangements that will allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link. Those arrangements should be included in the required notice.

Public Body Bears Costs

The public body must bear all costs associated with complying with the requirements for meetings by audio or video conference without a physical quorum. In other words, a local government should not use an audio or video conference service that charges members of the public to participate.

When the Meeting Starts

Record the Meeting

In general, local governments are not required to record their meetings, except for closed session. However, they must keep a verbatim record in the form of an audio or video recording for meetings without a physical quorum. These recordings must be made available to the public and are otherwise subject to the Act’s provisions regarding maintenance, review, and destruction of closed session recordings.

Minimum Physical Presence, if Feasible

Unless the disaster makes it unfeasible, at least one member of the public body, the chief legal counsel, or the chief administrative officer must be physically present at the regular meeting location.

Make Sure Participants Can Hear One Another

The public body should verify the participating members and make sure they can hear one another and all discussion and testimony. The public body should also make sure that any physically present members of the public can hear the discussion and testimony.

The reference to “testimony” suggests the General Assembly intended to facilitate public hearings without a physically present quorum.

Determine a Quorum

Each member of the body participating in a meeting by audio or video conference should be considered present for purposes of determining a quorum and participating in all proceedings.

During the Meeting

Roll Call Votes Required

All votes should be done by roll call during a meeting without a physical quorum, so each member’s vote can be identified and recorded.

Minutes and Public Comment

Meetings without a physical quorum are still subject to the requirements of Section 2.06 of the Open Meetings Act. In addition to complying with closed session verbatim recording requirements, public bodies should keep minutes as they ordinarily would. In addition, members of the public must still have an opportunity to address the public body, under its adopted rules.

Next Steps

The Governor is expected to issue a new disaster proclamation before the current one expires on May 30, 2020. With the last disaster proclamation, the Governor has reissued the executive order facilitating local government meetings without a physical quorum. As of this writing, it remains to be seen whether the Governor will reissue that executive order again and/or sign this new legislation to help local governments meet during the ongoing COVID-19 pandemic. Either way, when the Governor signs SB 2135, local governments should be prepared to adjust their remote meeting practices to comply with the new law.

Post authored by Daniel J. Bolin

Wednesday, May 27, 2020

CMAP Webinar Tomorrow: Tools for Effective Virtual Meetings

There is still time to register for the CMAP webinar "Tools for Effective Virtual Meetings," scheduled for tomorrow, Thursday, May 28, from 11:00 a.m. to noon. Information about the webinar and registration is below:

COVID-19 presents new challenges for those hosting public meetings, as communities pivot to incorporate online platforms and tools to reach their audiences and effectively engage a broader constituency. Join CMAP and leaders from Highland Park, Kimley-Horn and Ancel Glink, who are successfully navigating the new world of public engagement in the time of COVID-19.

Speakers include:

·     Jake Seid, Senior Planner, CMAP
·     Gregory Jones, Partner, Ancel Glink
·     Andy Cross, Senior Planner, City of Highland Park
·     Rory Fancler, Transportation Planner, Kimley-Horn

Register here.

Illinois General Assembly Passes Legislation Affecting Local Governments

The Illinois General Assembly completed its May session early on Sunday morning, and passed a variety of bills that have now been sent to the Governor. We have summarized below some of the key decisions made by the General Assembly in the weekend session that include (1) budget/funding; (2) workers compensation; (3) liquor regulations; (4) township meetings; and (5) library non-resident fees.

We will be reporting on other legislation in more detail as it is considered by the Governor and update you on legislation that is signed into law.

Budget/Funding Legislation

The IML prepared a summary of the legislation adopted by the General Assembly over the weekend that affects budgets and funding that will be of interest to Illinois municipalities. You can read that on the IML's website here, and we have provided a brief summary below:

The General Assembly adopted its FY 2021 budget, which begins on July 1, 2020. According to the IML, the FY 2021 budget is considered a relatively flat budget for the state, meaning no significant changes were made to spending when compared to FY 2020, excluding COVID-19 response spending. 

The General Assembly included in the BIMP bill the creation of the Local Coronavirus Urgent Remediation Emergency (Local CURE) Support Program to distribute CARES Act funding to local governments that did not receive direct funding through the CARES Act on a per capita basis and to use for expenses directly related to the COVID-19 pandemic that were not accounted for in the municipality’s most recent budget approved as of March 27, 2020. 

SB 685 allows a county board to waive fees and penalties for late property tax payments for either 120 days after the effective date of the legislation or until the first day of the month after the public health emergency ends, whichever is earlier. 

Workers Compensation Legislation

HB 2455 would provide essential workers with a temporary rebuttable presumption for workers compensation claims that they contracted COVID-19 during the course of their employment. Employers will be able to offer a rebuttal of that presumption if the employers are following CDC and IDPH guidance regarding safety in the workplace. 

Liquor Control Act Legislation - Cocktails-To-Go and Renewals/Fees

HB 2682 would make a variety of changes to the State Liquor Control Act, including allowing restaurants and bars to prepare and sell cocktails or mixed drinks for off-site consumption. The bill also waives late filing fees for state liquor licenses, authorizes the deferral of fees for state liquor licenses and provides for automatic renewals of state liquor licenses. 

Township Code Legislation - Annual Town Meetings

HB 2096 amends the Township Code to provide that, if the Governor declares a disaster under the Illinois Emergency Management Agency Act and the disaster declaration is effective during the dates designated for a township's annual meeting, a township board may postpone the annual meeting to the third Tuesday, after 6 p.m., of the month following the end of the disaster declaration if circumstances related to the disaster declaration prevent a township from holding its annual meeting. The legislation also requires the townships to consult with and receive written approval from the county health department to proceed with an annual meeting during the course of a subsequent disaster declaration. 

Library Legislation - Nonresident Fees

HB 2096 also amends the Illinois Local Library Act and the Public Library District Act of 1991 to create the Cards for Kids Act. If signed by the Governor, this would prohibit a library from charging nonresident fees for the privilege and use of a library to a nonresident in an unincorporated area in Illinois who is a student whose household falls at or below the U.S. Department of Agriculture's Income Eligibility Guidelines. The legislation also removed provisions that previously allowed libraries not to participate in nonresident card reciprocal borrowing programs of a regional library system.

Tuesday, May 26, 2020

Municipalities Prepare for Outdoor Dining Under Phase 3 Guidance

As we reported on Sunday, Illinois Governor Pritzker released guidance for businesses and employers, as all regions of the state are expected to enter “Phase 3” of the state’s Restore Illinois reopening plan on or about May 29, 2020. In addition to common guidelines for all businesses, industry-specific guidelines and toolkits are available on the Illinois Department of Commerce and Economic Opportunity (DCEO) website

Of interest to local governments will be the guidelines and toolkit for outdoor dining and drinking at restaurants and bars. Local governments and health departments are authorized to adopt more stringent regulations, but all restaurants and bars are expected to comply with the state guidelines, which generally allow on-premises consumption of food and beverage by parties of six or fewer in outdoor dining and drinking areas under guidelines that include, among other things:

Eligible Outdoor Dining or Drinking Areas

An area can be eligible for outdoor dining and drinking if it is: 
  • located on a rooftop;
  • located in an establisment with a retractable roof that is open during operating hours;
  • an outdoor space connected to or located on the site of a restaurant, grocery store, health or fitness center, hotel, golf club or other social club with a food establishment license;
  • indoor space where 50% or more of a wall can be removed via the opening of windows, doors, or panels if dining tables are within 8 feet from the opening; or
  • any other outdoor and drinking areas authorized by local governments if:
    • food and drinks are prepared by licensed food or liquor establishments; and
    • proper social distancing of 6 feet between designated customer tables and/or other seating areas is observed; and
    • parties are of 6 persons or fewer
The guidance does not specifically address tents or other outdoor coverings, but these criteria would seem to accommodate certain types of covering for an outdoor dining or drinking area.

General Health

Restaurants and bars with outdoor dining and drinking should have:
  • employees wear face coverings over their nose and mouth when within 6 feet of others;
  • provide hand washing capability or sanitizer to employees and customers; and
  • employees comply with regular hand-washing guidelines.

Physical Workspace

Among other things, restaurants and bars should:
  • configure space to allow for at least 6 feet of distance between tables or other designated customer service areas;
  • display signage at entry with face covering requirements, social distancing guidelines, and cleaning protocols;
  • have employees maintain social distance to the extent possible while performing services; and
  • ensure that the area for take-out customers allows for at least 6 eet of separation from seated customers.

Staffing and Attendance 
  • Without diminishing break-time requirements, restaurants and bars should limit the occupancy of common areas and break rooms to allow for social distancing of 6 feet or greater by removing or decommissioning furniture or staggering break times.
  • Live music is permitted but employees and performers should follow social distancing guidelines, keeping the maximum distance possible from each other and from customers.

  • Customers should wait for services off premises, either outdoors and maintaining social distance of 6 feet with use of recommended face coverings or in their vehicles.
  • With limited exceptions for people with medical conditions or disabilities, customers should wear face coverings over their nose and mouth while on premises, except while eating and drinking at a table.

Other Guidelines

Restaurants and bars should comply with other applicable guidelines for:

HR and Travel Policies
Health Monitoring
Disinfecting and Cleaning Procedures
Suppliers and Non-Customer Visitors

This is only a summary of the state’s most-recent guidance, so local governments should be sure to consult the guidelines themselves and with their attorney as they assist restaurants, bars, and other businesses reopen in compliance with the latest guidance from the State of Illinois and local health departments.

Post authored by Daniel J. Bolin, Ancel Glink

Sunday, May 24, 2020

BREAKING: Illinois Releases Phase 3 Reopening Guidelines (Businesses and Operations)

The State of Illinois just released guidelines for businesses and operations that will be allowed to reopen in Phase 3. We will provide more details on specific businesses, including outdoor dining, over the next week but wanted to make sure you had the link to the comprehensive guidelines and tool kits as soon as possible, so local governments can prepare for the reopening that is expected by the end of next week. 

Resources available about Phase 3 guidelines are available on the DCEO's website here. You can read the Restore Illinois Plan. The following is a summary of what you can find on the website:

To prepare businesses and employers to implement the new safety guidelines and to bring many residents back to work, the State of Illinois has developed this business toolkit complete with signage, training checklists, and other resources to ensure business and activities are conducted in accordance with the latest and greatest public health recommendations.

Phase 3 guidelines span 10 different industry categories. Each set of guidelines includes a common set of guidelines that are expected and encouraged among all employers and activity types, as well as workplace and program-specific guidelines.

Common Guidelines for all Phase 3 Businesses and Operations can be found in the Phase 3 Business Toolkit.

You can find specific guidelines and tool kits for the following businesses/activities:
  • Manufacturing
  • Offices
  • Retail
  • Service Counters
  • Youth Sports
  • Health and Fitness Centers
  • Personal Care Services
  • Outdoor Recreation
  • Day Camps
  • Outdoor Dining at Restaurants and Bars

Wednesday, May 20, 2020

BREAKING: Outdoor Seating at Bars and Restaurants, Expanded Recreation Expected by End of May

This afternoon, Governor Pritzker announced that outdoor seating at bars and restaurants will now be allowed as part of Phase 3 of the Restore Illinois plan, which is expected in all parts of the state by the end of May. That is a change from previous guidance that would have continued the current restaurant and bar restrictions until Phase 4. We expect state guidance on outdoor seating to include the following requirements:
  • tables six feet apart;
  • tables away from sidewalks;
  • mask requirements; and
  • other distancing measures.
The Governor is encouraging municipalities to assist restaurants in expanding their outdoor restaurant seating options, and the Illinois Restaurant Association is promoting creative strategies, such as closing streets for restaurant use, and expanded sidewalk cafes in parking lots and public ways.

The Governor also announced expanded recreation options as part of Phase 3, including:
  • re-opening of indoor and outdoor tennis facilities with Illinois Department of Public Health (IDPH) safety precautions and capacity limits;
  • golf foursomes out on the same tee times, and carts with one person per cart, or one immediate household per cart;
  • boating or camping with up to ten people; and 
  • guidance for driving ranges, outdoor shooting ranges, paintball courses, and other outdoor recreational businesses.
Phase 3 will also allow health clubs, gyms, and fitness studios to provide one-on-one personal training in indoor facilities and outdoor fitness classes of up to ten people.

Personal care services and retail stores will also be able to open to in-person shopping consistent with IDPH guidance.

Local governments are authorized to adopt stricter regulations where desired. 

This information is based on the Governor's press release today, so there is likely to be more details on these changes when the executive order is issued, so stay tuned for further updates.

Post authored by Daniel J. Bolin, Ancel Glink

Tuesday, May 19, 2020

Court Denies Emergency Relief to Churches Challenging Governor's Stay at Home Order

We reported previously on a lawsuit filed by Beloved Church in Lena, Illinois against Illinois Governor Pritzker challenging his stay at home order. In that case, an Illinois District Court Judge denied the church's request for a temporary restraining order against enforcement of the order against the church. Since that ruling, lawsuits have been filed by two other churches, with similar results.

On May 13, 2020, U.S. District Judge Gettleman denied a restraining order sought by two area churches against the enforcement of Governor Pritzker’s order, which banned gatherings of more than 10 people. The churches sued the Governor claiming that the Stay at Home Order’s limit on the size of religious gatherings to ten people violates the establishment clause and infringes on the right to free exercise of religion.

Citing several cases involving state authority during public health crises, Judge Gettleman ruled that “the right to practice religion freely does not include the liberty to expose the community ... to communicable disease.” Under emergency circumstances, such as when faced with a society-threatening epidemic, “a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable violation of rights secured by the fundamental law.” Judge Gettleman added that "the harm to plaintiffs if the Order is enforced pales in comparison to the dangers to society if it is not." Specifically, “an injunction would risk the lives of plaintiffs’ congregants, as well as the lives of their family members, friends, co-workers and other members of their communities with whom they come in contact. Their interest in communal services cannot and does not outweigh the health and safety of the public.” Judge Gettleman concluded that the Order does not violate freedoms of speech, religion or assembly under the First Amendment, nor does it violate the establishment clause.

The churches appealed, and on May 16, 2020, the Seventh Circuit Court of Appeals issued an order denying the churches’ request for an emergency injunction to block enforcement of Governor Pritzker’s Order. The Court ruled that the Order’s limit on gatherings to 10 people or fewer amid “an extraordinary public health emergency” does not appear to discriminate against religious activities or show hostility toward religion since it also applies to secular gatherings such as concerts, lectures, theatrical performances, or choir practices. The Court rejected the churches' argument that worship services were comparable to shopping or other essential services where people do not congregate or remain for extended periods. Although the Court denied emergency relief to the churches, the case will continue on the churches' other arguments.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Monday, May 18, 2020

IDPH Files Emergency Rule Regarding Enforcement of Stay at Home Order and Certain Businesses

UPDATE: On May 20, 2020, during a Joint Committee on Administrative Rules (“JCAR”) meeting, the IDHP Deputy Chief of Staff confirmed that IDHP will repeal the emergency rule filed on May 15, 2020.

According to recent news reports, on Friday, May 15, 2020, the Illinois Department of Public Health (IDPH) filed emergency rule 690.40 establishing certain regulations pertaining to certain businesses, including restaurants and bars, gyms, salons and other non-medical personal care facilities. The rule also proposes that businesses that defy the Governor's Stay at Home Order (2020-32) could be charged with a Class A misdemeanor, which is punishable by a fine of $75 to $2,500. 

The IDPH's emergency rule is reprinted below:
Section 690.40 Pandemic or Epidemic Respiratory Disease – Emergency Provisions EMERGENCY

a) The State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. As part of that general supervision, the Department has jurisdiction to address dangerously contagious or infectious disease outbreaks to protect the health and lives of the people of the State. The Department shall take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form. (Section 2(a) of the Act)

b) In order to restrict and suppress the novel coronavirus SARS-CoV-2 that causes the coronavirus disease 2019 (COVID-19), a dangerously contagious and infectious respiratory disease in the form of a pandemic or epidemic, which is spread person to person in respiratory droplets released by a person infected with the disease, the Department implements the following restrictions and requirements:

     1) Businesses and establishments that serve food or beverages, including, but not limited to, restaurants, food buffets, self-serve areas, bars, taverns, pubs, wineries, breweries, or beer gardens, that operate under a permit or license issued by the State or local health authority, shall not allow indoor on-site consumption of food or beverages. Service shall be limited to drive-through, delivery, curb-side, or pick up only. Businesses and establishments located in airports and hospitals are exempt from the requirements of this Section.

     2) Businesses and establishments that offer indoor fitness, exercise, physical workout or non-medical wellness services, such as health clubs or centers, fitness clubs or centers, gyms, tennis clubs, swimming pools, shall not allow on-site indoor fitness, exercise, workout or non-medical wellness options to customers, including but not limited to, classes, personal training, or individual customer use of exercise equipment or facilities. Service shall be limited to the sale of retail goods via drive-through, delivery, or pick up only, or the use of exercise equipment or the indoor use of facilities for the recording and streaming of online classes and instructional videos only.

     3) Businesses or establishments that offer cosmetology, esthetics, nail technology, barber, tanning, body art, or similar non-medical personal care services, treatments, procedures or therapies shall not provide on-site services. Service shall be limited to the sale of retail goods via drivethrough, delivery, curb-side, or pick up only.
c) Any person who violates the provisions of this Section shall be subject to the penalties set forth in Section 8.1 of the Act.

 Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Friday, May 15, 2020

Health Departments and the Disclosure of COVID-19 Patient Identifying Information

The Health Insurance Portability and Accountability Act (HIPAA) privacy rule generally prevents the disclosure of a patient’s personal health information without the patient’s HIPPA authorization. However, an exception to HIPPA permits disclosing this information to first responders in certain circumstances, including lessening a serious and imminent threat to health and safety of the public, first responders and inmates. 

The Illinois Attorney General has advised that sharing COVID-19 patient identifying information with first responders is permissible under the HIPPA exception, but has left decision to local health departments. The Illinois Department of Public Health (“IDHP”), however, issued guidance on April 1, 2020, recommending that local health departments not disclose COVID-19 patient identifying information to law enforcement. The IDHP based this guidance on its opinion that disclosing COVID-19 identifying patient information to first responders would have limited value and provide first responders with a false sense of security because of a high number of asymptomatic cases may not have been tested yet and people who have tested positive may no longer be contagious. Instead, the IDPH recommended that first responders take appropriate protective precautions when responding to all calls. 

Illinois counties have responded in different ways to this issue. DuPage and Will County Health Departments have voluntarily provided COVID-19 patient addresses to first responders. However, other Illinois counties have refused to provide information to first responders, sparking several lawsuits, a few of which are discussed below.

Cook County

The Northwest Central Dispatch System, a consolidation of 911 dispatchers, filed a lawsuit on April 20, 2020 against the Cook County Department of Public Health, its administrators and Cook County Board President Toni Preckwinkle. The lawsuit sought a temporary restraining order (TRO) forcing the county to disclose the names and addresses of COVID-19 patients. On May 1, 2020, Cook County Judge Anna Demacopoulos denied the TRO. During the hearing, the judge reiterated the IDHP’s guidance and voiced concerns over maintaining the privacy of medical information and whether police would respond more slowly if they knew they could be exposed to the virus. The judge also questioned whether releasing this information would make first responders safer, reasoning that because of the high number of asymptomatic cases and testing gaps, first responders are no more safe if they know a person’s name. Addressing discrimination concerns, the judge said that disclosing COVID-19 patient identities threatens stigmatizing infected people and harming minorities and undocumented residents who have complicated relations with the police. She also noted that some might feel discouraged from getting tested for fear of appearing on the list, which could exacerbate the virus’s prevalence in those communities. The judge set another hearing for early June.

McHenry County

On April 10, 2020, McHenry County Judge Michael Chmiel entered a TRO requiring the McHenry County Department of Health to disclose COVID-19 patient names to emergency dispatchers. The TRO requires COVID-19 patient names to be purged from the dispatch system seven days after the health department deems the patients are no longer contagious and also requires all information received by the dispatch system to be kept confidential. The judge’s order comes after a lawsuit filed by the McHenry County Sheriff and a separate lawsuit filed by Algonquin, Lake in the Hills, McHenry City, and Woodstock Police Departments. The Sheriff’s Office claims that the names of infected COVID-19 patients will only be shared by dispatchers on a call-by-call basis to protect the health of officers responding to emergency calls. The County Department of Health has filed a reconsideration request and a motion to dissolve the temporary restraining order, which is slated to be considered on May 18, 2020.

Lake County

On April 28, 2020, the Lake County Sheriff’s Office filed a lawsuit to force the Lake County Health Department to provide the names and addresses about COVID-19 patients in the county after the Health Department refused the Sheriff's request to confidentially disclose this information. The matter was heard by Judge Daniel Jasica on May 1, 2020, who urged both parties to engage in settlement discussions. Similar to the legal challenge in McHenry County, the Lake County Sheriff’s Office claims that receiving this information is vital to preventing the spread of the virus and protecting first responders and the community. In response, the Health Department reiterates the IDHP’s recommendation that disclosing patient identifying information gives law enforcement a false sense of security, because the county has many asymptomatic individuals who have not been tested and increases the risk of mishandling private medical information. This case is ongoing.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, May 14, 2020

Fast-Track Grants for Planned Infrastructure Projects Available to Local Governments

On Tuesday, Governor Pritzker and the Illinois Department of Commerce and Economic Opportunity (“DCEO”) announced the Rebuild Illinois Fast-Track Public Infrastructure Grant Program. Through the Program, DCEO will award $25 million in Rebuild Illinois grants to shovel-ready local public infrastructure projects with the intent of accelerating construction on planned public infrastructure projects and helping skilled labor return to work.

Eligible applicants include units of local government, such as municipalities, counties, townships, school districts, and other local political subdivisions. Eligible applicants must register on Grant Accountability and Transparency Act Grantee Portal and meet other prequalification requirements. Applications will be accepted on a rolling basis until funding is depleted or until the Program deadline at June 15, 2020. Individual grant awards will range from $500,000 to $5,000,000.

Eligible applicants may apply for multiple projects, including projects that entail new construction and/or significant renovation or improvements of:

publicly owned buildings, facilities, and parks;
publicly owned industrial and commercial sites;
waste disposal systems;
water and sewer line extensions;
water distribution and purification facilities;
gas and electric utility extensions;
dredging of waterways;
rail, air, or water port improvements;
ADA-compliant sidewalks, curb and gutters;
previously unimproved WPA streets; and
other public infrastructure capital improvements.

DCEO will only award grants to projects that commit to beginning within 90 days of Notice of Award Finalist and demonstrate the ability to do so. Projects eligible for grant funding must be public assets, must be permanent in nature and must not have recurring project expenses. Eligible projects must meet the Program’s shovel-ready criteria, as well as the minority business participation requirements of Illinois’ Business Enterprise Program. Grants are limited to capital improvement expenses and will not compensate for indirect costs, overhead or administrative expenses associated with the execution of the program. The Program does not have cost sharing or matching requirements.

More information is available in the Program’s Notice of Funding Opportunity and the Rebuild Illinois Public Infrastructure Guidebook. Local governments can click here to apply.

Post authored by Eugene Bolotnikov and Daniel J. Bolin

Wednesday, May 13, 2020

CARES Act Recovery Assistance Grants Available to Local Governments for Economic Development

The U.S. Department of Commerce recently announced that the Department’s Economic Development Administration (“EDA”) is accepting applications from eligible grantees for $1.5 billion in CARES Act funds intended to help communities prevent, prepare for, and respond to COVID-19.

Eligible grantees include states, counties, cities or other political subdivisions of the state, including a special purpose unit of a state or local government engaged in economic or infrastructure development activities, or a consortium of political subdivisions. However, grant applicants must clearly explain how their project would “prevent, prepare for, and respond to coronavirus” or respond to “economic injury as a result of coronavirus.” See Eligibility FAQ.

The EDA will make CARES Act Recovery Assistance grants under the authority of its Economic Adjustment Assistance (“EAA”) program to support various non-construction and construction activities, including revolving loan funds, in regions across the country experiencing severe economic dislocations brought about by the pandemic. Examples of projects that EDA may fund include:
  • economic recovery planning and preparing technical assistance strategies to address economic dislocations caused by the coronavirus pandemic;
  • preparing or updating resiliency plans to respond to future pandemics;
  • implementing entrepreneurial support programs to diversify economies, and
  • constructing public works and facilities that will support economic recovery, including the deployment of broadband for purposes including supporting telehealth and remote learning for job skills.

The Congressional Research Service notes that EDA’s role in the pandemic response will likely emphasize coordinated, long-term, regional, and strategic responses to economic recovery. Short-term responses to address budget shortfalls are not likely to be competitive in the EAA program.

Grant awards will range from $100,000 to $30,000,000, and the EDA generally expects to fund between 80 to 100 percent of eligible project costs. The notice of funding opportunity indicates the EDA will accept applications on an ongoing basis, but high demand is expected for the anticipated 3,000 grant awards.

Post authored by Eugene Bolotnikov and Daniel J. Bolin

Tuesday, May 12, 2020

Illinois Liquor Commission Released Updated COVID-19 FAQ

The Illinois Liquor Control Commission recently released an FAQ on COVID-19 Compliance that includes a lot of helpful guidance to local liquor control commissioners and staff on regulating liquor establishments during the pandemic. You can access the FAQ here. We have posted a few examples of the questions asked and answered in the FAQ below.

Q. Can an on-premise ONLY liquor license holder sell for off premise consumption and deliver alcohol? 

A. Yes, if authorized by the Local Liquor Control Commission and if licensee abides by off-premises sales rules including selling alcoholic liquor in the original container only. 

Q. Can a retailer that sells carry-out food also sell beer to-go as well. 

A. Yes, if authorized by the Local Liquor Control Commission and beer is sold in the original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5)

Q. Can on-premise licensed establishments have private meetings, private events, weddings etc.?  

A. No, all on-site premises consumption is suspended. 

Q. Can on premise licensed establishments have private events if the event brings their own alcoholic beverages? 

A. No

Q. As a bar or restaurant, may I permit beverages and/or food to be consumed in an outdoor area next to or near my indoor licensed premises? 

A. A licensee may not permit persons to remain on its licensed premises or in any outdoor area owned or controlled by the licensee or the owner of the licensee. Such outdoor areas could include, but are not limited to, beer gardens, outdoor patios, sidewalk cafes, parking lots, lawn areas, and fields. A bar or restaurant owner is liable for permitting all violations of state law pursuant to Executive Order 32 that may occur on the licensed premises or that are related to the conduct of the licensed business. 

Q. Can alcoholic liquor be sold and delivered to a private home? 

A. Subject to the approval of the Local Liquor Control Commission, licensees authorized to conduct retail sales of alcoholic liquor are permitted to provide home delivery of alcoholic liquor in the original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5). Guidance on deliveries can be found on the website.

Q. Can I sell “cocktails to go”? 

A. The State Commission has authorized retail licensees, subject to local approval, the privilege of selling alcoholic beverages for off premises consumption. The only caveat is that the alcoholic beverages must be in the “original container” (or growlers/crowlers sold pursuant to 235 ILCS 5/6- 6.5). A retailer may sell a “cocktail kit,” which would consist of a non-alcoholic cocktail mix, such as margaritas or bloody marys, and an alcoholic beverage in the sealed original manufacturer’s container. The important factor is that the alcoholic beverage is sold in the sealed original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5). Pursuant to 235 ILCS 5/6-6.5, growlers or crowlers may only be filled with beer. Please see the “’To-Go” Sales and Delivery of Premixed Cocktails” guidance document on our website for additional information.

Q. Can an on-premise ONLY liquor license holder allow customers into premises for video gaming? 

A. No, pursuant to an order issued by the Illinois Gaming Board, all licensed video gaming operations must cease at 9 pm on March 16, 2020. 

Monday, May 11, 2020

PAC Issues Binding Opinion on FOIA and Cannabis Applications

The Illinois Attorney General PAC Office just released its third binding opinion for 2020. In PAC Op. 2020-03 the PAC office found an Illinois agency in violation of FOIA for improperly redacting certain information contained in cannabis business license applications, although the PAC did acknowledge that the agency could properly redact birth dates under 7(1)(c) of FOIA.

A Chicago Tribune reporter filed a FOIA request with the Illinois Department of Agriculture requesting a copy of all applications for adult use cannabis cultivation center licenses. The Department provided copies of the applications but redacted certain information under 7(1)(a),7(1)(b), and 7(1)(c). Specifically, the Department explained that certain information was redacted because it was confidential under the Compassionate Use of Medical Cannabis Program Act ("Medical Act") or was protected by personal privacy exemptions. The reporter appealed to the PAC.

The PAC first noted that the Medical Act does not apply to applications for adult use cannabis facilities, so the confidentiality provisions of that Act did not protect certain information from release to the public.  Instead, the Cannabis Regulation and Tax Act applies to these applications, and that Act did not include the same confidentiality provisions as the Medical Act. As a result, the Department could not rely on the Medical Act to justify redaction of certain information in the applications. However, the PAC did agree with the Department that the birth dates of the principal officers and board members were properly redacted under 7(1)(c) as an invasion of privacy, finding no public interest in release of that "highly personal" information. 

Friday, May 8, 2020

Police Can Run Name Check for Alleged Ordinance Violation

A recent decision highlights that it is not illegal for law enforcement officers to use ID’s for running name checks on persons properly detained or arrested for ordinance violations. Hall v. City of Chicago,No. 19-1347 (7th Cir. 2020)

In HallChicago Police Department (“CPD”) officers stopped plaintiffs for violating a panhandling ordinance. During these stops, the officers typically asked the plaintiffs to produce identification, which the officers used to search for outstanding arrest warrants or investigative alerts against the persons stopped. Plaintiffs sued the City claiming that CPD unreasonably prolonged street stops in violation of the Fourth Amendment protection against search and seizure and that CPD maintained an unconstitutional policy or practice of performing these checks. On appeal, the court concluded that CPD could lawfully request ID’s to execute check names after observing ordinance violations, even if the checks were unrelated to the observed criminal activity, as long as delays caused by the checks were reasonable.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, May 7, 2020

Quorum Forum Podcast Episode 38: Remote Zoning Hearings Just Released

In case you had to miss our "live" webinar on conducting remote zoning hearings on Monday, you can now listen to the recording on Quorum Forum Podcast Episode 38 - see below for more information: 

Quorum Forum Podcast Episode 38:  Remote Public Hearings

In partnership with the APA-IL Legislative Committee, David Silverman and Greg Jones share ten best practices for virtual public meetings and ensuring due process during public hearings with limited physical attendance. Joined by hundreds of APA-IL chapter members and other local government professionals during a live web conference, we celebrate two years of Quorum Forum podcast and discuss important questions about managing land use applications during COVID-19. 

What questions do you have about remote public hearings? Email us.

Additional Resources:

Dan Bolin and ELGL, Bells That Can’t Be Unrung:  Local Government Impacts
May 12, 2020 at 11:00 am

Wednesday, May 6, 2020

Governor Pritzker Releases Restore Illinois Plan to Reopen Illinois in Phases

Yesterday, Illinois Governor Pritzker announced his plan to reopen Illinois in five phases which is called "Restore Illinois." The plan divides Illinois into 4 defined regions, and establishes five phases to reopen Illinois, starting with Phase 1 (Rapid Spread) and concluding with Phase 5 (Illinois Restored). 

According to the Governor, the entire State of Illinois is currently in Phase 2 (Flattening). By the end of the month, some regions may move to Phase 3 (Recovery) which would allow the reopening of manufacturing, offices, retail, salons, and other businesses with certain capacity and other safety precautions in place. Note that restaurants and bars would not be allowed to open for on-premises service until Phase 4 (Revitalization).

The five phases of reopening for each health region are described in the plan as follows: 

Phase 1 – Rapid Spread: The rate of infection among those tested and the number of patients admitted to the hospital is high or rapidly increasing. Strict stay at home and social distancing guidelines are put in place and only essential businesses remain open. Every region has experienced this phase once already and could return to it if mitigation efforts are unsuccessful.

Phase 2 – Flattening: The rate of infection among those tested and the number of patients admitted to the hospital beds and ICU beds increases at an ever slower rate, moving toward a flat and even a downward trajectory. Non-essential retail stores reopen for curb-side pickup and delivery. Illinoisans are directed to wear a face covering when outside the home, and can begin enjoying additional outdoor activities like golf, boating and fishing while practicing social distancing. To varying degrees, every region is experiencing flattening as of early May.

Phase 3 – Recovery: The rate of infection among those tested, the number of patients admitted to the hospital, and the number of patients needing ICU beds is stable or declining. Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. All gatherings limited to 10 or fewer people are allowed. Face coverings and social distancing are the norm.

Phase 4 – Revitalization: The rate of infection among those tested and the number of patients admitted to the hospital continues to decline. All gatherings of up to 50 people are allowed, restaurants and bars reopen, travel resumes, child care and schools reopen under guidance from the IDPH. Face coverings and social distancing are the norm.

Phase 5 – Illinois Restored: With a vaccine or highly effective treatment widely available or the elimination of any new cases over a sustained period, the economy fully reopens with safety precautions continuing. Conventions, festivals and large events are permitted, and all businesses, schools, and places of recreation can open with new safety guidance and procedures in place reflecting the lessons learned during the COVID-19 pandemic.

You can find a lot of information provided about the Restore Illinois Plan on the State of Illinois website Coronavirus page.  Specific Restore Illinois plan documents are linked below.

Tuesday, May 5, 2020

Religious Services and Stay at Home Orders

EO-32 and Religious Exercise

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32 (EO 2020-32), which is effective from May 1, 2020 through the end of May 2020. Like the Governor's previous "stay at home" order, people are required to stay home unless they are engaging in essential activities such as working at essential businesses, conducting essential government functions, or engaging in essential activities. EO 2020-32 did modify certain provisions in the previous order, some of which we reported on last. One of the changes was to expressly allow people to engage in the free exercise of religion as an "essential activity," but with restrictions. 

EO-32 states that people may leave the home: 
f.  To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregations.
Under the new EO-32 that took effect on Friday, May 1st, religious institutions are encouraged to use online or drive-in services. Religious institutions can provide in-person services, however, if they meet social distancing requirements. That includes limiting the number of people to 10, and requiring people to maintain at least a six foot distance from others, wash hands with soap and water for at least 20 seconds or use hand sanitizer, and wear face coverings. 

Recent Lawsuit by Beloved Church

The addition of this language to EO-32 may have been in response to a recent lawsuit filed by the Beloved Church in Lena, Illinois against Governor Pritzker, the Administrator of the Stephenson County Health Department, the Stephenson County Sheriff, and the Village of Lena Police Chief, seeking an injunction to allow the church to conduct worship services. The Church's complaint claims that EO 2020-32 violated the church’s federal and state constitutional rights, including the First Amendment's Free Exercise Clause, the Illinois Religious Freedom Restoration Act, the Emergency Management Act, and the Illinois Department of Health Act. The Church had filed its complaint after being served with a cease and desist notice from the Stephenson County Department of Health.

On April 30th, the Church filed a motion for a temporary restraining order (TRO) asking for emergency relief. On May 3, 2020, Federal District Court Judge John Lee denied the church’s motion for a temporary restraining order (TRO) and ruled that EO 2020-32 is constitutional and does not target religious organizations for differential treatment. 

First, Judge Lee acknowledged the foundational rights secured by the First Amendment, but noted that these rights are not limitless and can be subject to restriction if necessary to further compelling government interests. Judge Lee cited two historical cases, which stated that the right to practice religion freely does not include liberty to expose the community to disease, since the community has a right to protect itself against disease epidemics. 

Next, Judge Lee found that EO-32 "undoubtedly advances the government's interest in protecting Illinoisans from the pandemic" and that the EO did not treat religious worship services differently than similar uses such as schools, movie theaters, and concert halls, rejecting the Church's argument that religious services should be treated the same as grocery stores, manufacturing plants, and other essential businesses. 

Judge Lee also rejected the Church's argument that the Governor exceeded his authority by declaring a disaster declaration that exceeds 30 days, finding that there may be disasters that "pose a threat that may persist for long periods of time and certainly beyond a single 30-day period." 

Judge Lee further rejected the argument that the order was, in effect, a "quarantine" under the meaning of the Illinois Department of Health Act, distinguishing between a "stay at home order" that allows people to leave their homes for essential services and a true "quarantine" that requires total isolation. 

Finally, Judge Lee determined that the EO allows alternative worship services such as small group worship or meetings of 10 or less persons and drive-in services, unlike the Kentucky order found invalid by the Sixth Circuit Court of Appeals.  

Lawsuits in Other States

Similar lawsuits have been filed in other states. For example, in Kansas, the state's Supreme Court upheld the Governor’s executive order banning religious services of more than 10 people. However, a federal judge in Kentucky granted a temporary restraining order filed by a church against Louisville’s Mayor, who banned an Easter Sunday drive-in service, declaring the mayor's decision "unconstitutional." Also, after issuing an arrest warrant for a Florida pastor who refused to cancel packed services and obey social distancing orders, Governor DeSantis issued a directive exempting religious gatherings from Florida’s stay-at-home-order.

Religious Exercise and the Federal Government
At the federal level, Attorney General William Barr has made it clear that the federal government will be investigating state and local orders or ordinances to determine whether they exceed state or local authority by infringing religious liberties. Barr issued a memo directing Department of Justice (DOJ) attorneys to monitor, investigate, and vigilantly safeguard those rights. He acknowledges that state and local government may impose temporary and reasonable restrictions on civil liberties to protect the public,  but reminds officials that the Constitution is not suspended during emergencies, and the First Amendment and federal statutes prohibit imposing special restrictions on religious activities that do not also apply to similar nonreligious activities.

The DOJ also recently filed a Statement of Interest in support of a Mississippi church that held worship services in the church parking lot where congregants sat in their cars with rolled-up windows listening to their pastor preach over their car radios. The City of Greenville, which allowed citizens to attend a drive-in restaurant with open windows, fined each congregant $500 for attending parking lot services. The DOJ argued that by singling out churches as the only essential service that may not operate despite following all social distancing guidelines, the City did not act evenhandedly, since local government social distancing restrictions on places of worship must be narrowly tailored to advance a compelling interest.
Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink