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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, August 31, 2023

PAC Finds OMA Violation Where Committee Members Discussed Committee Business Outside Proper Meeting

In another advisory PAC opinion shared by a reader, the PAC reviewed a complaint that two committees of a public body violated the OMA where committee members discussed public business outside of a properly noticed meeting. 2023 PAC 75602.

The PAC found one committee in violation of the OMA while finding the other committee did not violate the OMA. Although the topic of discussion between the respective committee members was the same, the reason for the distinction was the nature of the respective committee's jurisdiction. In one case, the PAC determined that the committee's jurisdiction included the topics discussed by the members so a majority of a quorum of that committee discussing that topic outside of a properly noticed meeting violated the OMA. With respect to the other committee, however, the PAC determined that this committee's jurisdiction had nothing to do with the topic discussed by the committee members, so their discussion outside of a meeting did not trigger the OMA.

This is a good reminder to members of public bodies to be careful not to discuss with a majority of a quorum of their public body any topics related to the business of the public body of which they are a member outside of a properly noticed meeting.

Wednesday, August 30, 2023

PAC Finds No Violation of OMA for Meeting Notice and Location

Thanks again to a Municipal Minute reader for forwarding today's PAC advisory opinion which provides more guidance on notice posting requirements under the OMA.

In this advisory opinion, the PAC addressed a complaint that an advisory body of a city (a TIF joint review board or JRB) did not comply with the OMA. The complainant argued that the advisory body violated the OMA for several reasons, including that it did not post the notice of the JRB on the city's website, did not properly post its notice, and that its meeting should have been held at city hall rather than a city-owned museum. 2023 PAC 76681.

First, the PAC noted that the OMA only requires website posting of meetings of the governing body (in this case, the city council), and not other public bodies of the city. This issue was also discussed in yesterday's blog post.

Second, the PAC accepted the city's affidavit of city staff that the meeting notice was posted both at city hall and at the museum where the meeting was held as sufficient evidence that the meeting notice was properly posted absent any counter evidence by the complainant.

Third, the PAC found no violation in the JRB holding its meeting at a city-owned museum, noting that the OMA requires open and convenient meetings but does not mandate that meetings take place at the same location. Here, the notice specified the location of the meeting and there was no indication that the meeting location was either remote or inconvenient to deter the public from attending. The PAC also noted that the city stated that the location was chosen because of construction work on conference rooms at city hall.

Finally, the PAC rejected the complainant's argument that the JRB violated the OMA by not posting its minutes on the city's website, noting that the OMA only requires the "governing body" to post its minutes on the city's website and that, in any event, the JRB had not yet approved those meeting minutes.

Note that the complainant had also argued that the meeting time (1:30 pm on a workday) was inconvenient under the OMA. The PAC did not make a determination on this issue because it was later withdrawn by the complainant but did note that a public body conducting a meeting during regular business hours does not violate the OMA.

Tuesday, August 29, 2023

PAC Finds OMA Violation Where Public Could Not View Meeting Notice From Outside Building

As we have said before, the PAC issues some of its more interesting opinions in a non-binding, advisory form - those opinions often provide public bodies with guidance on the day-to-day issues they confront in complying with FOIA and OMA. Thanks to a Municipal Minute reader, we are reporting on one of those opinions today. 

In a recent advisory opinion, the PAC determined that a committee of a public body did not violate the OMA when it failed to post a meeting notice on the public body's website but that the committee did violate OMA when it failed to ensure that its posted meeting notice was "continuously available" for 48 hours in advance of the committee meeting. 2023 PAC 75604

The PAC acknowledged that the OMA only requires the "governing body" of the public body to post meeting notices on its website, and the website posting requirement does not extend to meeting notices of subsidiary bodies of the public body, such as committees (see section 2.02(b) of the OMA, emphasis added):

In addition, a public body that has a website that the full-time staff of the public body maintains shall post notice on its website of all meetings of the governing body of the public body.

However, the PAC found that the committee's posted meeting notice did not meet the OMA requirements. Although the notice was posted at least 48 hours in advance on a scrolling screen in the main hallway of the public body's building, that building was not open to the public the entire 48 hour period, so the notice was not continuously available to the public in violation of the OMA. Interestingly, the PAC also questioned whether a "scrolling" screen would satisfy the OMA's "continuously available" requirement since the meeting notice would not be viewable at all times while the screen scrolled through other electronic materials, although the PAC did not decide the request for review on that issue and instead encouraged the public body to post a paper copy of its meeting notices in a location where the public can view the notice from the outside of the building at any time during the 48 hours prior to a meeting.

This is a good reminder to make sure that a public body's meeting notices can be viewed by the public from outside the building if that building is closed at any time during the 48 hour period prior to a meeting. Also, although the website posting requirement for meeting notices only applies to "governing bodies," it's good practice to post the meeting notices of subsidiary bodies on the public body's website as well because that practice can offer some protection to a public body if the posted meeting notice is somehow not "continuously available" for the 48 hour period, pursuant to the following provision in section 2.02(c) of the OMA (emphasis added):

The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. Posting of the notice and agenda on a website that is maintained by the public body satisfies the requirement for continuous posting under this subsection (c)

Tuesday, August 22, 2023

FOIA Amended for Records Maintained by HIPAA Covered Entities

The General Assembly recently enacted amendments to the Freedom of Information Act (FOIA) that become effective on January 1, 2024 and will apply to public bodies that are also "covered entities" under HIPAA. P.A. 103-554.

First, the Act amends the definition of "private information" in FOIA to clarify that this exemption applies to electronic medical records and all information (including demographic information) that is contained within or extracted from an electronic medical records system operated or maintained by a public body that is also a "covered entity" under HIPAA.

Second, the Act adds a new exemption 7(1)(pp) that exempts from disclosure protected health information (PHI) that is maintained by a HIPAA covered entity.

Wednesday, August 16, 2023

Illinois Supreme Court Upholds the Protect Illinois Communities Act

On August 11, 2023, the Illinois Supreme Court upheld the Protect Illinois Communities Act, an Illinois law that took effect on January 1, 2023, which prohibits the sale, manufacture, delivery, and import of assault weapons and large capacity magazines. The Act does contain exemptions for (1) trained professionals, such as law enforcement, correction, military, and privacy security and (2) "grandfathered" individuals who possessed assault weapons or large capacity magazines before the law took effect. Caulkins v. Pritzker, 2023 IL 129453.

A group of licensed pawn brokers, Illinois residents, and an association whose members possess valid Firearm Owner Identification cards challenged the new law in court, claiming it violated their equal protection rights and constituted special legislation. In March of 2023, a circuit court ruled in their favor, holding that the right to bear arms under the state and federal constitutions were fundamental rights, and that the law (1) denied plaintiffs equal protection by infringing on their gun rights, and (2) constituted special litigation by providing an arbitrary right to the exempt individuals while excluding plaintiffs. 

The case made its way to the Illinois Supreme Court on a direct appeal from the circuit court. The Illinois Supreme Court reversed the circuit court decision. First, the Supreme Court concluded that the law does not deny equal protection nor does it constitute special legislation because plaintiffs did not sufficiently allege that they are similarly situated to and treated different from the exempt classes. The Supreme Court noted that the law balances public safety against the expertise of the trained professionals and the expectation interests of the grandfathered individuals. Second, the Illinois Supreme Court found that the plaintiffs had waived any Second Amendment challenge to the law because their complaint failed to include a challenge under that provision of the U.S. Constitution.

Note that this new law does not change the legal landscape regarding municipal regulation of assault rifles, which we discussed in 2015 when we reported that Illinois preempted municipalities from enacting their own assault rifle bans. 

Post Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink. 

Monday, August 14, 2023

Court Rules in Favor of Municipality in FOIA Case Involving Records Not Kept by Municipality

The Appellate Court recently ruled in favor of a public body in a FOIA case that involved records and data that the public body did not maintain or keep. Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation.

The Coalition filed a FOIA request with the City seeking a number of records, including third-party hauler reports submitted to the City as required by a City ordinance and residual rate and contamination data regarding non-recyclable materials collected from receptacles. The City provided the Coalition with copies of third party hauler reports, as well as other data submitted by third party haulers relating to rate and contamination data. The Coalition filed a lawsuit claiming that the City violated FOIA by not turning over all third-party hauler reports and by not providing rate and contamination data relating to City services. The City argued that it had searched its records and did not have reports from all of its third party haulers (some of the third party haulers had not submitted reports to the City as required by the Ordinance) and that it did not create, keep, or maintain rate and contamination data for services provided directly by City employees. The circuit court ultimately ruled in the City's favor, and the Coalition appealed.

On appeal, the Appellate Court upheld the ruling in favor of the City, finding no violation of FOIA. 

First, the Court held that the City was only obligated to turn over records it actually had in its possession, and that it had no obligation to reach out to the third-party haulers to have them create reports to submit to the City. Although the Court acknowledged that the City's ordinance required the haulers to file these reports, FOIA was not the mechanism to enforce that ordinance nor did the City's ordinance provide a basis for defining a public body's obligations under FOIA. The Court concluded that since "FOIA does not obligate a public body to create a new record, it also does not obligate a public body to compel a nonpublic, third-party entity to create and submit a record, even if the submission of such record is mandated by law."

As to the residual rate and contamination data, the Court acknowledged that the City had submitted an affidavit of a City official certifying that the City does not create, maintain, or keep this data where services are provided by City employees rather than third-party haulers. As a result, the Court found no violation of FOIA in the City's denial of this data, holding that "an agency cannot improperly withhold records that it does not maintain."

Thursday, August 10, 2023

New Law Authorizes Use of Design-Build Contracts for Municipalities and Schools

The Illinois General Assembly recently enacted P.A. 103-491 (SB 1570) authorizing municipalities and school districts to enter into design-build contracts. This authority builds on the statutory authorization to choose the design-build delivery method that was previously given to the Chicago Park District, and then to all Park Districts formed under the Illinois Park Code, and has now been extended to municipalities through the Illinois Municipal Code and school districts through the the Illinois School Code. 

Non-home rule municipalities and school districts – like all units of non-home rule local government – are subject to the provisions of the Local Government Professional Services Selection Act which requires the unit of government to undertake a "quality-based" selection process for contracting with design professionals (e.g., architects and engineers) and which severely limits the ability to select a design professional on the basis of the design professional’s fee. In addition, other state laws mandate that certain public works contracts be competitively bid. Based on these current laws, non home rule municipalities and school districts have to follow a more traditional design-bid-build delivery method that involves the use of separate contracts - one with a design professional and one with a general contractor (or multiple contractors and a construction manager). 

With the enactment of this new law, municipalities and schools now have the option to choose the design-build delivery method. The new law establishes a two-phase selection process that includes development of the scope and performance criteria for design-build contracts, a procedure for selection of contracts, requirements for submission of proposals, procedures for awarding contracts, and requirements of reports and evaluation of contracts (and a shorter process if the total overall cost of a project is estimated to be less than $12,000,000). 

Post Authored by Derke Price, Ancel Glink

Wednesday, August 9, 2023

New Law Gives Non-Home Rule Municipalities Authority to Adopt Administrative Adjudication System

The General Assembly recently enacted Public Act 103-0260 to expand the authority of non-home rule municipalities to adopt administrative adjudication hearing systems. In the past, this power was reserved to home rule municipalities. Administrative hearing systems can be a cost effective and efficient method for municipalities to pursue local ordinance and code violations. There are a few violations that cannot be adjudicated through a local administrative hearing system such as moving vehicle offenses under the Illinois Vehicle Code, among others.

In order to operate a local administrative hearing system, a municipality must first adopt an ordinance establishing the system and outlining the municipal code violations that will be adjudicated through the system. The ordinance establishing the adjudication system must include due process provisions providing for advance notice and the opportunity for a hearing. Parties must be provided notice of a violation in a manner reasonably calculated to give them actual notice, including, as appropriate, personal service, service by mail, or service by posting on the property where the violation is found. The notice of violation must describe the nature of the alleged code violation, the date of the hearing, penalties for failure to appear at the hearing, and the jurisdiction under which the hearing will be held. The party may be represented by an attorney at the hearing and has the ability to present witnesses and cross-examine opposing witnesses. Adjudication hearings are presided over by a hearing officer appointed by the municipality who is an Illinois state licensed attorney who has practiced for at least three years and who has completed a formal training on rules of procedure and the subject area of the ordinance violations that will be adjudicated. 

Adopting an administrative hearing system under this Act does not prevent a municipality from using other methods of enforcement.

This Act takes effect on January 1, 2024.

Post Authored by Megan Mack, Ancel Glink

Tuesday, August 8, 2023

Amendments to Affordable Housing and Appeal Act Enacted

P.A. 103-478 (SB 1476) was enacted last week to amend certain provisions of the Affordable Housing and Appeal Act, as follows:

First, the Act modifies provisions regarding the content of required affordable housing plans to require plans to also include a description of the following:

  • A consideration of affordable housing for both owner-occupied dwelling units and dwelling units for rent as part of the identification of land most appropriate for the construction of affordable housing;
  • housing market conditions;
  • infrastructure limitations; 
  • local government ordinances (including zoning or other land use ordinances), policies, or practices that do not affirmatively further fair housing;
  • any other local factors that constrain the local government's ability to create and preserve affordable housing.
The plan must also include a plan or potential strategies to eliminate or mitigate any identified local constraints to affordable housing.

The Act also requires plans to include proposed timelines within the first 24 months after the plan is adopted for actions to implement the plan. 

The Act requires non-exempt local governments to submit a report within 4 years after adopting or updating a plan to IHDA summarizing actions the local government has taken to implement its affordable housing plan.

Second, the Act modifies provisions relating to developer appeals to the State Housing Appeals Board, expanding the parties that can file an appeal to include not only the affordable housing developer, but also persons who would be eligible to reside in the proposed development and housing organizations

Third, the Act modifies the make-up of the State Housing Appeals Board.

Wednesday, August 2, 2023

New Laws Amend Illinois Prevailing Wage Act

There were a number of changes to the Illinois Prevailing Wage Act this session affecting government contracting that local governments should be aware of. We've summarized some of these amendments below, which will take effect on January 1, 2024, except for PA 103-188 which became effective June 30, 2023:

PA 103-48 (HB 3491) - This amendment to the Prevailing Wage Act provides a right of action  to workers employed by a contractor or subcontractor who is paid less than the prevailing wage rates for the work performed on a project covered by the Act.

PA 103-188 (HB 3351) - This law extends the Prevailing Wage Act requirements to projects that are undertaken pursuant to an incentive program or initiative described in the Illinois Power Agency Renewable Energy Resources Fund and Illinois Solar for All Program, except for residential buildings or houses of worship. Effective June 30, 2023

PA 103-327 (HB 2845) - This new law amends the Prevailing Wage Act to add the removal, hauling, transportation, and disposal of biosolids, lime sludge, and lime residue from a water treatment plant or facility.

PA 103-346 (HB 3370) - This new law amends the Prevailing Wage Act to add power washing to remove paint or other coatings, oils or grease, corrosion, or debris from a surface, or to prepare a surface for a coating to the Act.

PA 103-347 (HB 3400) - This new law amends the Prevailing Wage Act to add new reporting requirements that include reporting demographic information of workers on public work projects, to include gender, race, and ethnicity broken down by the following categories: (1) type of trade; (2) whether the worker is a journey worker or apprentice; and (3) total work hours performed.

PA 103-359 (HB 3792) - This new law amends the Prevailing Wage Act to add projects involving fixtures or permanent attachments to light poles owned by a public body with an exception for work performed by employees of the public body.

Tuesday, August 1, 2023

Act Expands Reasons for Remote Attendance by Member of Public Body

The Governor recently approved P.A. 103-311 that amends the Illinois Open Meetings Act to expand the permissible reasons for a member of a public body to attend a meeting electronically. 

Section 7 of the OMA currently authorizes a member of a public body to attend a meeting electronically if the public body has adopted a policy to authorize electronic attendance and the member's reason for attending electronically meets the statutory qualifications. Prior to this amendment, a member could attend electronically (if approved by the public body) if he or she was absent due to (1) personal illness or disability; (2) employment purposes or the business of the public body; or (3) a family or other emergency. With this recent OMA amendment, Section 7 of the OMA also authorizes a member of a public body to attend remotely if the absence is due to an "unexpected childcare obligation."