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Tuesday, September 28, 2021

Governor Signs Land Use and Environmental Legislation

In this edition of the Municipal Minute series on legislative updates, we will update you on several recently enacted Illinois laws relating to land use, public transit, and replacement of lead pipes.

P.A. 102-0180 provides new protections for vegetable gardens on residential property for non-commercial use. Under this new law, any person may cultivate a vegetable garden on their private property or on private property with the owner's permission. A vegetable garden is defined as "any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens, or edible plants are cultivated." The new law restricts local government regulation of vegetable gardens in a manner inconsistent with this new right, although governments can regulate the "height, setback, water use, fertilizer use, or control of invasive or unlawful species." The new law preempts home rule. 

P.A. 102-0660, expands bike and pedestrian pathway in highway planning and construction projects to apply beyond "urban areas" to projects within any municipality with a population of over 1,000 people. The law contains a few exceptions where bike and pedestrian path planning is not required, including a new exception where a municipality has passed a resolution declaring that the bicycle or pedestrian way does not fit the current development plan. The two current exceptions are: (1) where a pavement resurfacing project does not widen traveled roads or provide stabilized shoulders; or (2) where pathways would be unnecessary or not appropriate because of safety issues or costs.

P.A. 102-0613 creates the Lead Service Line Replacement and Notification Act, a comprehensive law that is intended to improve water service in Illinois. The Act lays out a detailed schedule for the Illinois Environmental Protection Agency (IEPA) and community water suppliers to replace lead service lines in the State with assistance from a new fund, the Lead Service Line Replacement Fund. The Act prioritizes funding to units of local government based on the prevalence of low-income households, lead service lines, and water samples with elevated lead levels. The Fund will be used for "planning, design, or construction directly related to the replacement of lead service lines and restoration of property."

Post Authored by Erin Monforti and Mike Halpin, Ancel Glink

Thursday, September 23, 2021

Attorney General Issues Opinion that a Convicted Felon Forfeits Pension Benefits

This summer, the Illinois Attorney General issued an opinion interpreting 40 ILCS 5/14-149 which states that members of the State Employees’ Retirement System forfeit pension benefits after they are convicted of a felony related to or arising out of or in connection with their service as an employee.

An employee in the Department of Vehicle Services for nearly twenty years had access to title and registration fees and sales tax payments. According to the Attorney General opinion, the employee began stealing fees and tax payments in 2015, and attempted to cover up her activities by cycling stolen funds with new title and registration fees and requiring staff to direct missing fee complaints only to her. The employee also sent license plates to vehicle owners by United Parcel Service, rather than by the usual method with the United States Postal Service. Ultimately, the employee was convicted of mail fraud, intentional misapplication of Secretary of State fees, and theft of Illinois Department of Revenue vehicle sales tax payments and sentenced to 18 imprisonment and ordered to pay over $70,000 in restitution.

The State Employees' Retirement System sent a letter to the Attorney General asking for an opinion as to application of the Pension Code requirement that a participant’s pension benefits be forfeited if the participant is convicted of a service-related felony. The Attorney General issued an opinion finding  that the employee's conviction was related to, and arose out of, her employment with the State because (1) she was working in her capacity as a government employee when she defrauded the State and (2) without her position, she would not have had access to State funds. The Attorney General also noted that its opinion is consistent with court cases applying forfeiture in other situations where government employees have violated the public trust and commited felony misconduct.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, September 22, 2021

Court Finds Sweepstakes Machines to be Video Gaming Terminals Under State Law

Video gaming is allowed in Illinois but subject to various state licensing regulations, state taxation, and local control. To obtain a video gaming license, an establishment must have a liquor license, meet certain state licensing regulations, and pay state gaming taxes, among other requirements. One business attempted to get around the video gaming statute by installing what was referred to as a "sweepstakes" machine. These machines allow cash play but also include a "free play" mode.

Recently, an Illinois Appellate Court found that these sweepstakes machines fall under the state video gaming law and, therefore, must comply with the licensing and tax requirements. In Clair v. Hanover Park, a municipality had cited a business for operating video gaming machines without the proper licensing and payment of taxes. The business argued that because the machines included a "free play" option, they did not fall within the video gaming statute. The Village countered that the statute and Village ordinance applied to any game of luck or chance that involved the insertion of cash or coupon. In this case, the Village had inspected the machines and determined that they accepted cash to play a game of chance, which could result in the receipt of credits that were redeemable for cash at the register. 

The court reviewed state law and the Village's gaming ordinance and agreed with the Village that the machines were video gaming machines subject to compliance with the licensing and taxation requirements for these machines. The fact that the sweepstakes machines contained a "free play" mode did not exempt them from the gaming statute since players can insert money into the machine, play a game of chance, and receive credits that are immediately redeemable for cash, making them video gaming terminals under state statute.

Tuesday, September 21, 2021

Court Dismisses FOIA Case as Moot

In 2020, an individual who was previously convicted of offenses relating to a shooting incident submitted a FOIA request to a municipality seeking copies of inventory sheets and photographs of an old vehicle allegedly containing a gun used to shoot another person. The City prepared two affidavits attesting to the City’s reasonably diligent search for records responsive to the request and denied the request because the City did not have any responsive inventory sheets or photographs within its possession or custody, except for a vehicle tow report which was provided to the requestor. 

Before the City even responded to the FOIA request, the requestor sought an injunction to compel the City to produce the requested records and sought civil penalties against the City. The court dismissed the case, finding the requestor’s claims were moot because the City’s affidavits showed the City had already provided all responsive records in its possession.

The requester appealed, and the appelate court upheld the dismissal of the case as moot because the City already produced the only record responsive to the FOIA request in the City’s possession. Bryant v. North Chicago Police Chief and Freedom of Information Officer. The appellate court also rejected the requestor’s speculative claims about the existence of additional records and denied civil penalties against the City, because the City provided all requested documents in its possession and the requestor failed to prove that the City willfully and intentionally failed to comply with FOIA. The appellate court also noted that the requestor failed to appeal his denied FOIA request to the Public Access Counselor's office of the Attorney General and never received a binding PAC opinion, so there was no presumption that the City acted willfully and intentionally in allegedly failing to comply with the FOIA request.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, September 20, 2021

Governor Signs Public Safety Legislation

For our next legislative update, we wanted to provide insight on two important legislative updates related to public safety and mental health services in the State of Illinois.

Public Safety

As most of you already know, in January, the Governor signed a criminal justice and public safety reform bill into law. Earlier this summer, we reported on the status of the trailer bill to the legislation, which clarified and amended many provisions of the Act to provided guidance to law enforcement and local government for compliance with the new law. On June 25, Governor Pritzker signed the trailer bill into law as Public Act 102-0028.

The Act includes numerous provisions on police training, the use of body camera footage, police misrepresentation matters, and restrictions on officer use of force, among other clarifications of the January statute. Of note for local governments are the provisions mandating at least 30 hours of in-service officer training every three years and those specifying the permissibility of police review of body camera footage. Under the Act, officers and supervisors may not redact, label, duplicate, or otherwise alter body camera footage, and the footage must be stored securely for 90 days after recording—if altered or destroyed, the report detailing such alteration or destruction must be kept for one year. Footage will not be destroyed within 90 days if there is a “flagged encounter” captured on the recording. Encounters will be flagged if:

·          A complaint has been filed related to the incident;

·          An officer discharged their firearm or used force during the encounter;

·          Death or great bodily harm occurred to anyone involved;

·          The encounter resulted in a detention or an arrest;

·          The officer is the subject of an internal investigation of misconduct;

·          The footage may be valuable to a criminal prosecution; or

·          The recording officer requests that the video be flagged for official purposes.

Additionally, while officers may generally review body camera footage to assist in writing incident reports, no review is permitted when an officer is involved in or is witness to the use of force which results in death or great bodily harm, or when an officer is required to write a report following a complaint of misconduct. This statute should be reviewed carefully and monitored for further amendment to ensure compliance with its many provisions.

Mental Health Services

P.A. 102-0580 creates the Community Emergency Services and Support Act (CESSA). CESSA provides that an EMS Region shall provide mobile emergency mental and behavioral health services to individuals not presenting as a threat to first responders and not involved in criminal activity. CESSA applies to every unit of local government that provides and coordinates ambulance or similar medical response or transportation services for individuals with emergency medical needs.

Post Authored by Mike Halpin & Erin Monforti, Ancel Glink

Thursday, September 16, 2021

New Open Meetings Act Laws

As we continue to provide updates on new bills signed into law by the Governor, today we will discuss two laws concerning open meetings.

P.A. 102-0348 enacted the Empowering Public Participation Act to restrict when law enforcement agencies or officers can conduct background checks on speakers at a meeting of a public body. The Act provides:

A law enforcement agency or an officer employed by a law enforcement agency may not knowingly and intentionally conduct a background check of a person for the sole reason of that person speaking at an open meeting of a public body, including police disciplinary boards. 5 ILCS 850/10(a).

The Act does not apply in cases where the agency or officer believes there is a reasonable suspicion of criminal conduct or a threat to security at the meeting or when the person speaking at an open meeting is under consideration for appointment to a government position by the public body.

Violation of the Act is a Class C misdemeanor but does not create any claim for damages or other relief.

P.A. 102-0653 amends the OMA to require public bodies to review their closed session meeting minutes every six months, or as soon as practicable, taking into account the nature and meeting schedule of the public body. Ad hoc committees must review closed session minutes at the later of (1) six months from the date of the meeting or (2) at the next scheduled meeting of the ad hoc committee. Prior to this amendment, the OMA required public bodies to conduct this review on a semi-annual basis.

The Act also provides that when a public body is dissolved, disbanded, eliminated, or consolidated by executive action, legislative action, or referendum, the public body taking over the previous body’s functions will review the closed session minutes of that public body.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

Wednesday, September 15, 2021

PAC Issues 8th Binding Opinion of 2021

A regular reader sent us a copy of the most recent PAC binding opinion - as many of you know, the Attorney General's website is still not fully operational so the public still cannot access any of the binding opinions issued by the Public Access Counselor.

Earlier this year, a reporter submitted a FOIA request to the Office of the Mayor of the City of Chicago seeking text messages sent or received by Mayor Lightfoot regarding conversations between Mayor Lightfoot and certain hospital personnel on their personal or city-issued devices. Although the Mayor’s Office properly extended the time to respond to the FOIA request by an additional five business days, the Mayor’s Office subsequently failed to either comply with the request or deny the request in writing within the extended response period. In PAC Op. 21-008, the PAC concluded that the Mayor Office violated FOIA section 3(d), which requires public bodies to either comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request.

Nothing groundbreaking in this opinion.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, September 14, 2021

Legislative Update: General Governance

This post contains another edition of our legislative updates from the most recent Illinois General Assembly session in Springfield. This post focuses on laws that impact general governance. 

P.A. 102-0024 provides that a county, township, or municipality may waive any fees or costs associated with a permit, inspection, or certification of occupancy required by law for construction, reconstruction, alteration, repair, movement to another site, removal, or demolition of multiple structures within their jurisdiction. These waivers (provided under the local government’s discretion) are limited to disastrous circumstances or the threat of disaster, including fire, flood, earthquake, storm, water contamination, blight, rioting, or public health emergency, as well as other circumstances explicitly mentioned in the new law.

P.A. 102-0435 provides relief for businesses relating to the COVID-19 pandemic. The law allows county and municipal officials to pass resolutions to waive or reconsider the imposition of fees for specific licenses and permits, including business licenses, liquor licenses, construction permits, food service permits, and other activities usually regulated by the county or municipality. The new law specifies that applicants must demonstrate their need for a fee waiver based on tangible hardships resulting from the COVID-19 pandemic.

P.A. 102-0602, which enacts the Local Volunteer Board Member Removal Act, states that a person or government body that appointed a member of a volunteer board or commission may remove that member for misconduct, official misconduct, or neglect of office. This authority is in addition to any other removal authority provided by law. Note that the Act does not apply to individuals appointed to fill a vacancy on an elected board associated with a local government unit.

Post Authored by Mike Halpin & Erin Monforti, Ancel Glink

Monday, September 13, 2021

New Election Laws in Illinois

As we noted last week, we are going to be reporting on a number of new laws that have taken effect or will take effect soon over the next couple of weeks. Today, we report on two election-related laws.

P.A. 102-0001 provides resources to election authorities for conducting secure elections. First, the Act provides that any federal funds received by the Illinois State Board of Elections under the Help America Vote Act that are not otherwise used in the course of a federal election can be available to election authorities to maintain secure collection sites for vote by mail ballots. Second, the Act authorizes local election authorities to operate curbside voting procedures during early voting and on election day, subject to provisions that limit the interference of election judges. Finally, the Act requires that all vote by mail ballots be accepted by election authorities, even if they do not have the requisite postage or are mailed to a collection site not within the voter’s election district.

P.A. 102-0015 changes the general primary election date to June 28, 2022 and changes corresponding dates in preparation of the general primary election, including dates for filing nomination papers and objections to those filings. The law also provides that November 8, 2022 is a State holiday as well as a school holiday for purposes of the School Code. These provisions are repealed on January 1, 2023.

In addition, this new Act also prohibits a unit of local government from adopting an ordinance or resolution that requires a member of the General Assembly to resign his or her office in order to be eligible to seek elected office in the unit of local government and provides that any such ordinance or resolution is void. The Act allows for permanent vote by mail, and also preempts home rule units from regulating the eligibility requirements for those seeking elected office in the local government that is inconsistent with the Act.

The Act includes a number of other new provisions, including new cybersecurity provisions, high school voter registration, 

Thursday, September 9, 2021

Governor Signs Several Bills Into Law That Affect Local Governments

Governor Pritzker recently signed into law several new laws that affect local governments and we will report on these over a few blog posts. Below is a summary of laws that affect (1) COVID-19 affordable housing; (2) community college housing; (3) liquor; and (4) lemonade stands.

COVID -19 Affordable Housing

P.A. 102-0175 provides COVID-19 relief funds to address shortages in affordable housing. The bill creates the COVID-19 Affordable Housing Grant Program Act and amends the Affordable Housing Planning and Appeal Act, the Illinois Housing Development Act, and the Illinois Income Tax Act. Perhaps most notable is the Act’s preemption of home rule authority: a home-rule unit of local government may not take action which regulates affordable housing more restrictively than the State has provided for under the Affordable Housing Planning and Appeal Act. We recommend that local governments (especially those that are not exempt from affordable housing reporting requirements) review our post on the Act and the legislation and consult with their legal counsel if they have questions as to how the law affects them.

Community College Housing

P.A. 102-0062 will permit non-exempt local governments to work with nonprofit housing developers and housing authorities to develop affordable housing aimed at community college students, who traditionally do not have access to campus housing. The Act will take effect on January 1, 2022.


P.A. 102-0008 had previously enabled retail liquor license locations to provide one free drink to customers showing their vaccination cards but that expired on July 10, 2021. Though that promotion has ended, the Act still allows retail liquor licensees to sell drinks-to-go. Local liquor commissioners and local liquor control commissions are authorized to adopt rules to regulate these to-go drinks more restrictively than the State.

Lemonade Stands

A new Act, taking effect on January 1, 2022, prohibits health departments of a unit of local government or a public health district from regulating the sale of lemonade or nonalcoholic drinks or mixed beverages by a person under the age of 16.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, September 8, 2021

Quorum Forum Episode 56: Vaccine Mandates

We celebrated a 10 year anniversary with Municipal Minute last week and this week, and today we "celebrate" another episode of our Quorum Forum podcast, Episode 56: Vaccine Mandates. In this episode, Ancel Glink attorneys discuss what FDA approval of the first COVID-19 vaccine means for employers considering vaccine mandates. This episode also discussses recent tort immunity cases local governments should know to avoid liability from lawsuits. 

Email your questions to podcast@ancelglink.com


Tuesday, September 7, 2021

Governor Updates Previous Face Covering and Vaccination Executive Order

It seems that almost as soon as we post something about new COVID-19 guidance, that guidance has changed. But, we did want to update you on a recent Executive Order issued by the Governor that extends the time-frame for the new vaccine mandates for certain Illinois workers, including healthcare workers, school personnel, and higher education personnel.

In Executive Order 2021-22, the Governor updated EO 2021-20 which had set a deadline for vaccine compliance for a first shot of September 5, 2021. The deadline for covered workers to get the first shot is now September 19, 2021. This new vaccine mandate applies to health care workers (as defined in the EO), school personnel (also defined in the EO), and higher education personnel (defined in the EO). Until these personnel are fully vaccinated, they must comply with certain testing requirements set out in the EO (unless they qualify for a medical or religious exemption). We encourage you to consult with your labor counsel on these new requirements, as they place certain affirmative obligations on employers who are covered by these new requirements.

The EO also includes face covering requirements for persons over age 2 in indoor spaces.

Friday, September 3, 2021

10 Years Ago Today a Blog Was Born

Believe it or not, it's been 10 years since I started the Municipal Minute blog! That's right, 10 years ago, I spent my Labor Day weekend designing and compiling material to post on this blog, never thinking that I'd still be doing this 10 years later and certainly not envisioning that we would write and post nearly 2,000 separate posts (1,951 as of today). 

Since that first post, we've been updating local government officials and employees on new laws, bills, and cases, as well as recent developments they may find of interest in their service to local government. It hasn't always been easy, and some of our posts have generated their share of controversy (and a mostly civil debate), but I can certainly say that it has never been boring, particularly over the past 18 months. COVID-19 and its impact on governments has challenged all of us to be quick and nimble in sharing information about new executive orders, mandates, COVID-related funding sources, and related developments to help us get through a pandemic that still impacts us today. 

We hope you have found this resource (which is written entirely by Ancel Glink attorneys at no cost to our readers) to be helpful in your service to local government. There is no question that providing this service to you has helped us keep current with these new laws, cases, and developments. 

And as we mentioned last year, in case you weren't a regular reader in 2011 (and let's be honest, there were just a handful of you back then!), you can check out our first blog post here:  Tweeting into Trouble? Or, if you want to see what else we've written about over the past 10 years, you can go directly to the front page of the Municipal Minute blog and search through our topic list on the home page for other posts that may be of interest to you. 

Thanks for your support and continued readership! 

Thursday, September 2, 2021

Check out the Employment Law Articles on Workplace Report

We have previously reported on Municipal Minute about the employment-law related information reported on Ancel Glink's Workplace Report blog, but wanted to remind our new readers of this resource. We have provided a sampling of recent posts below that may be of interest to our readers. You can click on the title to go to the Workplace Report and read the entire article.

New Masking Mandates and Vaccination

Supreme Court Upholds Indiana University COVID-19 Vaccination Mandate

Illinois Appellate Court Rules on Transgender Bathroom Policy

Workers' Rights Constitutional Rights to be on November 22, 2002 Ballot

Illinois General Assembly Legislative Update 

Long Haul COVID Patients May Be Covered Under Federal Disability Law