Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


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

Wednesday, June 30, 2021

Supreme Court Tackles "Takings" Question Presented by California Labor Statute


On June 23, 2021, the U.S. Supreme Court issued its opinion in Cedar Point Nursery v. Hassid. The case involved two fruit-growing businesses in California that challenged a 2020 regulation enacted by the California Agricultural Labor Relations Board that mandated agricultural employers to allow union organizers onto their property to solicit support for unionization efforts for up to three hours per day, 120 days per year.

Two of the agriculture businesses challenged the regulation after union organizers attempted to enter their properties under the new regulation— in one case, the union organizers were prevented from entering, and in the other, the organizers entered the property but had not provided the required notice to the business before doing so. The District Court dismissed the businesses’ claims, and the Ninth Circuit affirmed the dismissal finding that the access that the regulation granted to each property was not a per se, or outright, taking of their property as prohibited under the Fifth and Fourteenth Amendments to the Constitution. The businesses appealed to the U.S. Supreme Court, which disagreed with the lower courts' rulings and found the regulation to be an unconstitutional taking.

Five justices joined Chief Justice Roberts in the majority opinion, which held that the regulation impermissibly authorized a permanent, physical invasion of the growers’ properties because it gave third parties the ability to infringe on the grower’s right to exclude others from their properties. The Court held that the right to exclude others is so fundamentally important to property ownership that encroaching on that right without compensation qualifies as a taking under the Constitution. Despite arguments from the union organizers that the regulation did not rise to the level of a taking because it did not authorize a constant, physical presence on the growers’ land, the Court held that the intermittent access that the regulation required was serious enough to rise to the level of a taking. The Court also rejected an argument that this case would set a precedent for challenges to other government-authorized physical invasions.

Justice Kavanaugh, concurring with the majority, provided insight into the labor context of the regulation. He opined that even with the protections afforded by national labor laws and regulations, the union organizers have no right to encroach on the growers’ land because access to the laborers was not contingent on access to their employer’s property.

In dissent, Justice Breyer and two other Justices argued that the majority opinion’s analysis was flawed, as the regulation was not a permanent physical invasion. The dissent advocated for a more multifactor test to determine whether the regulation was unconstitutional, and criticized the majority’s holding as jeopardizing “large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto . . . a property owner’s land,” such as those which authorize inspections of private property for safety or environmental purposes. Whether this fear as expressed by the dissent will be realized remains to be seen in the context of federal, state, and local regulatory activity.  

Post authored by Eugene Bolotnikov and Erin Monforti, Ancel Glink

Tuesday, June 29, 2021

Supreme Court Finds in Favor of Cheerleader in Social Media Speech Challenge

It's rare when we see a case involving the First Amendment and social media but even rarer when that case comes out of the U.S. Supreme Court. As many of you may have read in the news, B.L., a high school cheerleader, was suspended from participating in her school's cheerleading program after images and statements she made on social media were brought to the school's attention. According to the court, she posted the following in two Snapchat stories:

The first depicted B.L. and a friend with middle fingers raised, and bore the following caption (note that we have modified the swear words):

F**k school f**k softball f**k cheer f**k everything

The second image was blank, but included the following caption:

Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else? [this image also included an upside-down smiley face emoji]

B.L. had about 250 friends on Snapchat and at least one of them took a photo of the two images and shared them with School officials. Shortly after, B.L.'s JV cheerleading coaches suspended B.L. from cheerleading for the upcoming year.

B.L. sued, claiming that this decision violated her First Amendment free speech rights. Both the District Court and the Court of Appeals found in her favor, and held that the School had violated her rights when it suspended her from cheer for posting these messages on social media. The School appealed to the U.S. Supreme Court, which upheld the rulings in B.L.'s favor. Mahanoy Area School District v. B.L.

In its analysis, the Supreme Court acknowledged that previous Supreme Court cases had established that schools can regulate and restrict the speech of school children on school grounds and even off school grounds where a school is acting "in loco parentis."' The Supreme Court gave the example of schools regulating and controlling bullying between students on social media even when that conduct occurs off campus. However, the Supreme Court noted that schools do not have unfettered power to regulate students' off campus speech, and where that regulation impedes protected speech, it violates the First Amendment. Here, B.L.'s social media activities occurred off-campus and on B.L.'s personal cell phone, did not mention the school by name, and did not cause any substantial disruption at school. Instead, the messages conveyed criticism of a school decision, which the Court found was protected by the First Amendment. In short, the Supreme Court found the School's decision to suspend B.L. from the cheerleading squad for her off-campus criticism of the School to be a violation of her free speech rights under the First Amendment. 

This case is worth a read as it not only presents a thorough analysis of the Supreme Court's past rulings on student First Amendment rights but also discusses how these more "traditional" free speech cases apply to social media speech. I suspect we will see more and more of these First Amendment challenges in the context of social media speech in the future, and this case will provide some guidance on how a court might analyze those claims.

Monday, June 28, 2021

More Detail on Governor's Most Recent Disaster Declaration & Remote Meetings

As we reported late on Friday, the Illinois Governor extended the State's Disaster Declaration and various Executive Orders relating to the COVID-19 pandemic. That decision means, among other things, that public bodies can continue to meet remotely (or in a hybrid fashion) under the recently amended OMA procedures that allow remote meetings without a physical quorum, at least for another 30 days.

Last spring, the General Assembly amended the Open Meetings Act to add a new section 7(e) that allows public bodies to meet without a physical quorum under certain conditions, including the following language, in part:

(1) the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in Section 4 of the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area...

* * *

(4) for open meetings, members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration, in which case the public body must make alternative arrangements and provide notice pursuant to this Section of such alternative arrangements in a manner to 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; 5 ILCS 120/7(e).

As you know, the Governor had issued a disaster proclamation relating to COVID-19 last March and extended that every 30 days. Those decisions allowed public bodies to take advantage of this new remote meeting procedure as the disaster proclamations met the requirements of 7(e)(1). After the State of Illinois went into Phase 5 of the Restore Illinois, it was not clear whether the Governor would extend the disaster procomation for another month; however, last Friday afternoon, he did, and extended the disaster proclamation through July 24, 2021. The 6/25/2021 proclamation includes, among other things, the following:

Section 12. For purposes of Public Act 101-0640, Article 15, section 15-5, amending the Open Meetings Act, new section 5 ILCS 120/7(e)(4), I find that the ongoing public health concerns at issue in this proclamation continue to render in-person attendance of more than ten people at the regular meeting location not feasible. However, as the number of fully vaccinated individuals in Illinois continues to increase, I do not expect to make this finding again, and public bodies should plan on its expiration as of July 24, 2021.

The Governor also signed an executive order (EO 2021-14) that extended prior executive orders, including EO 2020-07, as stated below:

Executive Order 2020-07 (In-person meeting requirements):

Section 6 of Executive Order 2020-07, as amended by Executive Order 2020-33 and Executive Order 2020-44, is re-issued and extended through July 24, 2021, whereafter Section 6 shall be rescinded.

Based on the language in this latest disaster declaration, public bodies may want to prepare to go back to in person meetings starting July 24, 2021, if they haven't already been meeting in-person. At that time, public bodies can still take advantage of the "traditional" remote meeting procedures that allow members to attend electronically if they meet certain statutory reasons (illness, work, emergency), but an in-person quorum will have to be physically present at the meeting place if the Governor no longer finds in-person meetings to be "not feasible." 

Post Authored by Dan Bolin & Julie Tappendorf

Friday, June 25, 2021

New Governor Disaster Declaration

We will have more for you early next week, but we wanted to let our readers know that the Governor did extend the Disaster Declaration and suspended the requirement of a physical quorum of a public body at meetings subject to the Open  Meetings  Act for another month. That means that public bodies can rely on the statutory authority in the Open Meetings Act that allows remote/hybid meetings until July 24th.

Language from this most recent disaster declaration is below:

"Section 12. For purposes of Public Act 101-0640, Article 15, section 15-5, amending the Open Meetings Act, new section 5 ILCS 120/7(e)(4), I find that the ongoing public health concerns at issue in this proclamation continue to render in-person attendance of more than ten people at the regular meeting location not feasible. However, as the number of fully vaccinated individuals in Illinois continues to increase, I do not expect to make this finding again, and public bodies should plan on its expiration as of July 24, 2021."

 Post authored by Dan Bolin & Julie Tappendorf

Monday, June 21, 2021

Bill Would Amend Affordable Housing Laws

Since the Affordable Housing Planning and Appeal Act (Act) became effective in January 2004, housing affordability has inspired much debate in Illinois. 

The Act requires all non-exempt municipalities (those with less than 10% affordable housing units in their communities) to adopt an affordable housing plan that includes, at a minimum, (1) a report indicating how many affordable units would need to be constructed to make a local government exempt from the reporting requirements (i.e., how many units would be needed to make 10% of all year-round housing within the locality affordable); (2) information on plots of land and existing structures which are best suited for affordable housing development; (3) potential incentives that may be used to attract affordable housing development to a locality; and (4) the identification of a goal for increasing affordable housing according to the Act’s specified benchmarks. 

HB 2621 (which passed both houses and is now before the Governor) proposes various significant amendments to the Act, the Illinois Housing Development Act, and the Illinois Income Tax Act, as well as enacting the COVID-19 Affordable Housing Grant Program Act. The changes of most interest to municipalities are discussed below.

The amendments to the Act, if passed, would require non-exempt municipalities to provide notice and hold a public hearing on any new affordable housing plan or amendment to an existing plan.

The amendments also provide for remedies for non-compliance with the Act’s reporting requirements. The Attorney General is now authorized to enjoin noncompliance, mandate compliance, or enforce the Act “by means of other appropriate relief.”

The proposed legislation would also amend the Act to preempt home rule authority, providing that home-rule units of local government may not take action to regulate affordable housing development in a more restrictive manner than the state has under the Act. 

The COVID-19 Affordable Housing Grant Program Act, if signed into law by Governor Pritzker, would create a scheme by which the Illinois Housing Development Authority is required to administer special grant funding to sponsors of qualified affordable housing projects. This proposed legislation identifies several considerations which will be used to prioritize funding allocation, including whether an area has been disproportionately affected by the pandemic; whether local organized labor will be used in the development process; and whether the developments involve contracting with disadvantaged businesses or businesses that are owned by minority groups. With the availability of this new grant funding as a supplement to the Federal Low-Income Housing Tax Credit, towns can expect renewed interest in developing affordable housing, placing even greater emphasis on having a plan in place.

Post authored by Adam Simon and Erin Monforti

Friday, June 18, 2021

Don't Forget to Check Out the The Workplace Report Blog

Thursday, June 17, 2021

Liquor Laws to Know for Phase 5 and Beyond

With the State moving to Phase 5 of the Restore Illinois plan last week, municipalities should be aware of various changes affecting liquor sales and delivery.

State Guidance on Temporary Delivery and Off-Premises Sales Ends July 1, 2021

The Illinois Liquor Control Commission (ILCC) recently announced that many of its COVID-19 bulletins would be lifted July 1, 2021, including its “Guidance on Temporary Delivery of Alcoholic Liquor” and  “Guidance to Local Liquor Control Commissions for On-Premises Only Retailers.” The ILCC guidance allowed all licensed retailers, including on-premises only licensees, to make “to go” sales, curbside deliveries, and home residential deliveries, subject to conditions and local liquor commissioner approval. However, as of July 1, 2021 on-premises only licensed retailers may not sell alcoholic liquor for delivery. Only retail license holders with combined on/off premises consumption and off-premises with consumption only licenses may sell alcoholic liquor for delivery, subject to local ordinances.

ILCC’s COVID-19 Compliance FAQ for Phase 5 is available on its website.

New Liquor Delivery Law Effective January 1, 2022

Governor Pritzker also recently signed legislation preempting home rule and non-home rule units (except for Chicago) and allowing certain state-authorized liquor deliveries effective January 1, 2022. “Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

1.  delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;

2.  delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or

3.  delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers. Where the new law preempts the local power to determine the kind and classification of liquor licenses, “on-premises only” licensees and other licensed retailers could potentially make the liquor deliveries authorized by the new law. Further ILCC guidance may be forthcoming, but municipalities may wish to review their liquor regulations to prepare for these changes in the coming months.

State Issues New Guidance on Cocktails and Wine To-Go

After Governor Pritzker recently extended “to-go” sales of cocktails and single-servings of wine through January 3, 2024, the ILCC issued new guidance this week. The guidance only allows the authorized to-go sales by retailers with a combined license for on-premises/off-premises sales. The guidance also includes packaging and labeling requirements, and service requirements for employees. The to-go cocktail or single-serving wine may be delivered to the consumer over-the-counter inside the business, by curbside delivery by a retailer employee, or by home delivery by a retailer employee. Deliveries through a drive-through or by third party delivery companies are prohibited.

Local municipalities may prohibit or further restrict the sales and delivery of to-go cocktails and single servings of wine. Additionally, the guidance notes that off-premises and combined on-premises/off-premises licensees may deliver liquor in the original packaging subject to applicable local law or ordinance.

Post Authored by Dan Bolin & Adam Simon, Ancel Glink

Wednesday, June 16, 2021

Illinois Municipal Handbook (2021) Just Released

The Illinois Municipal League (IML) just released the most recent edition of the Illinois Municipal Handbook (2021), the 19th edition  of this publication. The Municipal Handbook provides a complete overview of municipal government, home rule, elections, FOIA, Open Meetings, employment laws, zoning, property sale and purchase, ethics, and many other topics of interest to municipal officials and employees. The Municipal Handbook is published by the IML, and each chapter of the Handbook is authored by Ancel Glink attorneys who volunteer their time on this publication.

This release is great timing for newly elected officials who would like a comprehensive overview of laws and regulations that affect municipal governance. 

You can order a copy of the Handbook on the IML's website here.

Tuesday, June 15, 2021

PAC Issues 4th Binding Opinion of 2021 Interpreting the "Deliberative Process" FOIA Exemption

Thanks to a Municipal Minute reader who submitted a FOIA to the PAC asking for copies of any binding PAC opinions issued during the time that the Attorney General's website has been down, we have a copy of the fourth binding PAC opinion of 2021. 

In PAC Op. 21-004, the PAC found a municipality in violation of FOIA after it denied a FOIA request for communications between the city and an applicant for a zoning change. The city had denied the request arguing that the communications were part of the city's "deliberative process" on the zoning application and were exempt under 7(1)(f) of FOIA. The PAC determined that the deliberative process exemption is limited to internal documents and does not cover records or communications shared with third parties. Because the requested record were exchanged between the city and a third party (the zoning applicant), they did not fall within the type of "inter- and intra-agency predecisional or deliberative material" that would be covered by the section 7(1)(f) exemption and, as a result, the PAC said they should have been released to the FOIA requester.

Monday, June 14, 2021

Trailer Bill to SAFE-T Act Sent to Governor

One of the bills that many municipalities were carefully monitoring was the trailer bill that proposed certain amendments to P.A. 101-0652, the "SAFE-T Act."

HB 3443 is a follow-up bill to the SAFE-T Act which was passed during the January General Assembly legislative session. This bill would provide updated and clarifying information to the massive set of provisions related to criminal justice and law enforcement reform. While the bill represents many comprehensive changes to the previous legislation, those most relevant to municipalities include the delay of newly mandated officer training to January 1, 2022 (from July 1, 2021), clarifications regarding use-of-force provisions, and relaxing restrictions for officer review of body camera footage, among many other changes. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, June 11, 2021

Legislature Sends Finance-Related Bills to Governor

The Illinois General Assembly sent a few finance-related bills to the Governor that may be of interest to local governments.

TIF Reporting Requirements

HB 0571 would amend the Tax Increment Allocation Redevelopment Act to require municipalities to prepare an analysis for the Comptroller and relevant taxing districts indicating the (1) nature and term of the obligation; (2) the projected debt service including required reserves and debt coverage; and (3) the actual debt service. Starting in FY-2022, municipalities will also be required to submit to the Comptroller and taxing districts certain information about job growth, property tax increment, and any identified rate of return stemming from the project area in question.

Broadening Eligibility for Tourism Grants

SB 0317 would amend the Illinois Promotion Act to expand the eligibility for units of local government for certain tourism grants from the Illinois Department of Commerce and Economic Opportunity. Rather than limiting the use of grants to municipalities or counties, this amendment allows for the provision of funds to all units of local government as defined in Article VII of the Illinois Constitution.

Publishing Vendor and Subcontractor Demographic Data

HB 0453 would require taxing districts with an aggregate property tax levy of more than $5 million to make a good faith effort to collect and publish data from all vendors and subcontractors doing business with the district. The data should reflect whether the vendor or subcontractor: (1) is minority-owned, women-owned, or veteran-owned; and (2) holds any certifications for those categories or self-certifies and qualifies as a small business under federal standards.

Permit Fee Relief in the Wake of COVID-19

HB 2454 would amend the Counties Code and the Illinois Municipal Code to allow county and municipality officials to pass resolutions to waive or reconsider the imposition of fees for certain licenses and fees, including business licenses, liquor licenses, construction permits, food service permits, and other activities that are normally regulated by the public bodies. The bill specifies that applicants must be able to demonstrate their need for these fees to be waived based on tangible hardships experienced during and because of the COVID-19 pandemic.

Replacing Lead Service Lines

HB 3739 would create the Lead Service Line Replacement and Notification Act to direct the Illinois EPA to create programs to assist community water suppliers in collecting water protection fees and the administration of programs and activities to replace and update service lines to eliminate the use of lead pipes for carrying drinking water. The Act would create the Lead Service Line Replacement Fund, which will be allocated as grant funding according to certain factors explicitly mentioned in the text, including the prevalence of low-income households, the presence of lead service lines, and the affordability of water services in a given community. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, June 10, 2021

Court Dismisses Case Against PAC in FOIA Appeal

in 2017 and 2018, a FOIA requestor submitted seven FOIA requests to three different public bodies. After the public bodies denied each request based on applicable FOIA exemptions, the requestor appealed each denial to the Illinois Attorney General’s Public Access Counselor (PAC). The PAC notified the requestor that no further action would be taken in response to his appeals. The requestor then filed a lawsuit against the PAC, alleging it violated FOIA by refusing to perform “a clear ministerial duty” by denying his requests for review.  

The trial court ruled in favor of the PAC and dismissed the requester's lawsuit holding that it lacked jurisdiction to review the PAC’s decision because the PAC did not issue a binding opinion in response to any of the requester's appeals. The requester appealed.

In Shehadeh v. Raoul, the appellate court upheld the trial court’s dismissal of the requestor’s complaint. The appellate court ruled that a courts cannot review a PAC decision to not issue a binding opinion, because a PAC decision to resolve a request for review by issuing an advisory rather than a binding opinion is entirely discretionary and, therefore, not subject to review by the courts.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, June 9, 2021

Bills Would Amend Land Use and Other Regulatory Statutes

The Illinois General Assembly sent a couple of bills that deal with land use and other regulator issues to the Governor this legislative session.

Residential Gardens

HB 0633 would, if sinto law, establish the "Garden Act" to create a right to cultivate gardens on residential property for growing vegetables, herbs, fruits, flowers, and other edible plants. The bill proposes to restrict the power of a home rule unit of local government to prohibit vegetable gardens but would not prevent public bodies from regulating the height, setbacks, water use, and similar elements of the gardens so long as the regulations do not preclude gardens.


HB 1443, if signed by the Governor, would amend the Compassionate Use of Medical Cannabis Program Act and the Cannabis Regulation and Tax Act to, among other things, allow the relocation of medical cannabis dispensaries that were proposed for sites within areas that prohibit cannabis retail sites to sites within the same geographic district, subject to municipal approvals. These relocation plans would remain subject to local ordinances that prohibit or regulate adult-use cannabis establishments. The amendments also clarify procedures for the license allocation lotteries and create over 100 new conditional adult-use dispensary licenses to be allotted via two new lottery systems. The first lottery would be based solely on region, and the other lottery would be awarded according to state social justice and equity goals to provide opportunities for communities and individuals with economic difficulties.


One bill that has already been signed into legislation is SB 0104 (now known as P.A. 102-008) which amended the Liquor Control Act of 1934 to extend the provisions passed last year allowing retail liquor licensees to sell cocktails, mixed drinks, and single servings of wine via curbside pickup or delivery to customers of the licensee’s establishment. These provisions apply only to the sale or delivery of to-go alcoholic drinks by employees of the liquor license holder and does not regulate the delivery of these drinks by third-party services such as UberEats or GrubHub. Under this bill, between June 10 and July 10, 2021, an establishment with a liquor license cam offer a free drink to a customer who shows proof of their participation in a vaccination program from 6:00 PM until 10:00 PM. The new law restricts the amount of alcohol provided at no charge through these promotions, allowing only for one drink of alcohol with standard volumes explicitly provided for in the text. This law is scheduled for repeal in January 2024. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, June 8, 2021

Bills Propose Changes to Employee-Related Legislation

Today, we are providing updates to employee-related bills that passed both houses of the General Assembly and are now awaiting Governor action.

If signed by the Governor, SB 539 would make changes to the Illinois Government Ethics Act and related ethics statutes. 

First, the legislation would modify the economic interests that certain government officers are required to disclose annually when they file their economic interest statement under the Act. For example, an individual required to file a statement of economic interest must also include certain interests of spouses and minor children. The Secretary of State would be required to publish guidance for completing and filing the disclosure statements given the changes made by this legislation. Also, so long as a filer reasonably relies in good faith on the Secretary of State's guidance, the filing will not constitute a willful false or incomplete statement. 

In addition, the proposed amendments would prohibit certain county, municipal, and township officials from being compensated for any activity by a lobbyist or lobbying entity, and amend the requirements for lobbyist registration. 

The bill also preempts municipal regulation of lobbyists that would conflict with the statutory regulations, except for the City of Chicago.

SB 2486 would amend the Personnel Records Review Act, which restricts the release of disciplinary records of employees in Illinois and requires notice be provided to an employee when their records are set to be released. If the amendment is signed by the Governor, employees who wish to file a complaint with the Department of Labor or in court based on a perceived violation of the Act may do so within three years of the disclosure of the disciplinary record in question. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Monday, June 7, 2021

Governor Extends Remote Meetings Through June 26

Last week, we reported that two bills that would have amended the Open Meetings Act to expand the remote meeting procedures adopted during the pandemic were not approved in this legislative session. Since then, we have received some questions about when public bodies are required to go back to in-person meetings and the traditional procedures for remote meeting attendance. While only the Governor knows how long the COVID-19 disaster declaration will stay in place, we did see that Executive Order 2021-11 (issued on May 28, 2021) extended EO 2020-07 until June 26, 2021 - that was the EO that temporarily suspended the in-person meeting requirements of the OMA. 

So, unless something changes before then, public bodies can continue to follow the new remote meeting requirements in the OMA for meetings that take place in June - at least until June 26th (unless the EO is further extended). Although the state is expected to enter Phase 5 this week, that does not necessarily mean that all restrictions will be lifted throughout the state, based on the Phase 5 guidance that has been circulated in advance of June 11th. 

Friday, June 4, 2021

Quorum Forum Podcast Episode 53: Property Brothers Park Edition

Ancel Glink just released Episode 53 of its Quorum Forum Podcast, Property Brothers: Park Edition. Information about this episode is below:

Put in your earbuds, take a walk in the park, and join the “Property Brothers” to learn the ins and outs of the purchase, sale, and lease of park property. This popular session from the 2021 IAPD/IPRA Soaring to New Heights Virtual conference covers what park agencies need to know to evaluate property-related proposals from private and public sector entities alike, and how property transfers can help advance your organization’s mission. 

What’s happening in your parks this summer? Email us at podcast@ancelglink.com!

Thursday, June 3, 2021

Illinois General Assembly Update: OMA Edition

We have a lot of updates on the close of session activity of the Illinois General Assembly, more than we can possibly include in one post. Today, we will focus on a few bills that passed both houses and, if signed by the Governor, would affect meetings of public bodies.

SB 2356 would, if signed by Governor Pritzker, amend the Open Meetings Act to provide that all public bodies are to meet and review the minutes of all closed meetings every six months, or as soon as practical given the nature of the public body’s business and schedule. The amendment provides that ad hoc committees may review closed session minutes either six months after the date of the last closed session or at the next scheduled committee meeting, whichever is later. 

If signed by the Governor, HB 1765 would create the Empowering Public Participation Act and prohibit law enforcement agencies and officers from intentionally conducting background checks on individuals solely because they choose or chose to speak during an open meeting of a public body, including police disciplinary boards. This prohibition does not apply when a law enforcement agency or officer has a reasonable suspicion of criminal conduct or a security threat to the meeting.

Note that the General Assembly did not pass legislation to expand or modify the new remote meeting provisions of the OMA. We reported previously on SB 482 which would have allowed the public body to make a determination as to whether a remote meeting is necessary under the new remote procedures rather than public bodies having to rely on a current State-issued disaster declaration. That bill did not move forward this session, and neither did SB 2246 which had similar provisions. This means that public bodies must still rely on the status of the State's disaster declaration if they want to continue to use the alternative remote meeting process (as opposed to relying on the traditional remote attendance process that requires a physical quorum of the public body at the meeting and limits remote attendance to specific circumstances, such as illness, business, or emergencies that prevent in-person attendance).

Post Authored by Erin Monforti & Julie Tappendorf

U.S. Supreme Court to Hear Digital Billboard Case

Earlier this week, the U.S. Supreme Court agreed to hear a case evaluating how municipalities can regulate electronic message boards and off-premises signs (i.e., billboards). This dispute marks the first time the Supreme Court has waded into local signage control since 2015, when the Court decided Reed v. Town of GilbertReed introduced significant uncertainty for communities seeking to promote community aesthetics through sign regulation. We will soon see whether City of Austin v. Reagan National Advertising brings more of the same.  

In 2017, two advertising companies submitted permit applications to digitize billboards located in Austin, Texas. Austin denied the applications based on a city sign code provision that only allowed on-premises signs to feature digital displays. The code prohibited off-premises digital signs.  Austin’s code (like many other sign codes) defines off-premises signs as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located.”  

The advertising companies challenged the constitutionality of Austin’s on-premises/off-premises distinction on First Amendment grounds. In defense, Austin argued that its sign regulations promoted a compelling government interest -- namely, protecting the aesthetic value of the city and public safety. Last August, a federal court sided with the advertisers and found that Austin’s prohibition of off-premises digital signs was an unconstitutional content-based speech regulation.

Communities regularly distinguish between on-premises signs and off-premises signs, and, in some cases, enforce sign codes that prohibit off-premises signs altogether. The Supreme Court’s interest in this case suggests municipalities should be prepared to potentially reconsider that regulatory approach, and particularly if the Court issues another opinion like Reed.  We’ll be monitoring this case closely.

Post authored by Greg Jones and Daniel James

Wednesday, June 2, 2021

Illinois Election Bill Goes to Governor

Over the weekend, the Illinois General Assembly passed SB 825, modifying various provisions of the Election Code . The bill has been sent to the Governor and is awaiting signature.

If the legislation is signed, the date of the 2022 primary election would be June 28, 2022. The first day to circulate petitions for the primary would be January 13, 2022, and candidate nominating petitions would have to be filed between March 7, 2022 and March 14, 2022. Any objections to the nominating petitions would have to be filed by March 21, 2022. In exchange for the shortened petition-circulation period, fewer petition signatures are required - for example, the signature requirement for an established party candidate for an office that is not specifically mentioned in the bill would be reduced by 1/3 and any maximum number of signatures (if applicable) would also be reduced by 1/3.

Independent and new political party candidates would begin circulating nominating petitions on April 13, 2022, and the filing period for these candidates is between July 5, 2022 and July 11, 2022. Objections to these candidates' nominating petitions would be due by July 18, 2022. 

The 2022 general election will be held on November 8, 2022 and will again be a State holiday (like the 2020 general election). However, this time, the legislation did not include language requiring government offices to close (unlike the 2020 general election).

The bill also requires each election authority to establish one "voter center" where any voter within the jurisdiction of the election authority can vote on election day, regardless of which precinct they are registered in. This provision sunsets in 2023.

The bill also prohibits local governments from adopting an ordinance, referendum, or resolution that requires a member of the General Assembly to resign from that position in order to seek election to a position in local government. The bill also invalidates any ordinance, referendum, or resolution that contains such a provision adopted on or after November 8, 2016. This provision preempts home rule authority.

There is a lot more to this bill, including provisions relating to cybersecurity, high school voter registration, expenditures by political committees, new accommodations for voters with disabilities, permanent vote by mail status, restoration of voter rights, and changing the word "alderman" with "alderperson," among other changes.

Tuesday, June 1, 2021

Illinois Supreme Court Emphasizes Public Body’s Duties Under the Prevailing Wage Act

Recently, the Illinois Supreme Court issued a decision interpreting the Prevailing Wage Act  and clarifying the obligations of public bodies and contractors to pay damages for violations of the Act. Valerio et al. v. Moore Landscapes, LLC, 2021 IL 126139,

The case was brought by a group of twelve landscape workers who performed work under a contract between their employer and the Chicago Park District. The case centered around the language of the contract between the Park District and the employer, which provided that the “[c]ontractor shall pay all persons employed by [it], or its subcontractors, prevailing wage rates where applicable.” (emphasis added). The workers claimed they were not paid the prevailing wage rate. 

Although the Park District was not a defendant in this case, the court held that the Park District provided insufficient notice about prevailing wage requirements because it did not specify that landscape employees were owed the prevailing wages. The Court held the contract phrase “where applicable” was too ambiguous and did not give the contractor adequate notice that it was required to pay the higher, prevailing rate for the work in question.

Because the Park District failed to make the contractor aware of its obligations, the court held that the employees’ action against the contractor for certain damages could not be successful. The employees had sought relief for damages under Section 11 of the Act, including penalties, statutory punitive damages, costs, and attorney fees, rather than for merely the underpaid wages they were owed under Section 4 of the Act. Without notice, however, the Court held that the statute does not permit these penalties against the contractor. The Court suggested that when a public body—such as the Park District in this case—fails to make a contractor aware of their obligation to pay prevailing wages, Section 4(g) shifts the liability for interest, penalties, and fines to the public body itself. Note that because the case related only to the sufficiency of the complaint, the court did not decide whether the nature of the landscaping work performed by the employees was subject to the Prevailing Wage Act.

Following this decision, public bodies would be wise to revisit their bid solicitation forms and contract language used to provide notice to contractors that they must adhere to the prevailing wage in their area. Typically, public bodies have placed the burden on their contractors to make the decision whether the Prevailing Wage Act applies. However, based on the ruling in this case, the Supreme Court places the burden more clearly on the governmental body engaged in a public works project. For general guidance on best practices for drafting these contract terms, including sample language, visit the Department of Labor’s page, Prevailing Wage Public Body FAQ.

Written by Adam Simon and Erin Monforti, Ancel Glink