ILLINOIS APPELLATE COURT PROVIDES GUIDANCE AS TO WHEN MUNICIPALITIES MAY PARTICIPATE IN POLICE OR FIREFIGHTER PENSION BOARD HEARINGS

Court affirms Pension Board’s denial of City’s request to intervene in firefighter line of duty disability hearing.

By: Robert B. McCoy
robert.mccoy@mhtlaw.com

Illinois municipalities with a population of 5,000 or more are required to create a pension fund for firefighters or police officers in their employ. Those municipalities have a substantial financial interest in the disposition of disability pension claims, especially line of duty pension claims, made by the pension fund’s administering board. Not only do line of duty pensions pay greater benefits than “normal” disability pension (65% of a firefighter’s monthly salary for a line of duty disability versus 50% of the firefighter’s monthly salary for a non-line of disability, and up to 75% of a police officer’s monthly salary for a line of duty disability versus 50% of the police officer’s monthly salary for a non-line of disability), the award of a line of duty pension may preclude a municipality from being able to contest whether a firefighter or police officer claimant is entitled to a lifetime of health insurance benefits under the Public Safety Employee Benefits Act (PSEBA).

Local fire and police pension boards are charged with the fiduciary responsibility of administering their pension funds to ensure there are adequate financial resources to cover obligations to pay current and future retirement and disability benefits to qualified beneficiaries. To this end, pension boards are charged to hold hearings to screen out unqualified or fraudulent disability claims. But pension boards may not always adequately protect the financial interests of the cities or villages which underwrite the pension fund.

Despite their financial interest in the outcome of disability pension claims, there is no statutory right for municipalities to participate in pension board hearings. Instead, Illinois courts have ruled that pension boards have discretion to allow or disallow a municipality to intervene in a disability claim hearing.

A pension board’s discretion is not absolute. But, as recently reaffirmed by the Illinois Appellate Court in the case City of Peoria v. Firefighters’ Pension Fund of City of Peoria, 2019 IL App (3d) 190069, decided December 10, 2019, it is not error for a pension board to deny a municipality’s request to intervene in a disability claim hearing unless the municipality can show that is has something more at stake than the normal financial concerns inherent in all such cases. In the words of the Court, “[A] municipality’s interest in the proper expenditure of pension funds may warrant intervention in pension board proceedings when combined with another interest.”

In the City of Peoria case (in which this author represented the claimant firefighter), the City of Peoria argued that the Firefighters’ Pension Fund had wrongly denied it the right to intervene in the hearings to determine whether a firefighter was entitled to a line of duty disability pension. The City asserted, on administrative review of the decision before the Circuit and Appellate Courts, that the City’s potential liability for PSEBA was “another interest” which warranted it being allowed to intervene in the pension hearings.

Under the unique facts of the case, the Appellate Court disagreed. The Appellate Court noted that a pension board’s finding that a firefighter became disabled in the line of duty was conclusive as to the issue of whether a firefighter suffered a “catastrophic injury” for purposes of PSEBA eligibility. But, a duty-related disability is not all that is required for a firefighter or police officer to be eligible for PSEBA. PSEBA also requires that the injury “must have occurred as the result of the officer’s response to fresh pursuit, the officer or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.” In the City of Peoria case, the firefighter conceded that his injury did not occur as a result of an emergency (or any other PSEBA-qualifying event). Thus, because the firefighter was ineligible for PSEBA, the City could not rely on the threat of PSEBA liability as grounds to intervene in the pension case.

The City of Peoria also asserted that the City had an interest in developing a complete and accurate record in the pension board hearings. The Appellate Court acknowledged that this could be a sufficient reason for intervention by a municipality. But, under the facts presented, the pension board did not err in denying the City’s request to intervene, where the City was allowed to submit documentary evidence to the pension board, and the City failed to identify what additional evidence it would have presented had it been allowed to fully intervene, or how such evidence would have changed the outcome of the hearings.

Because it was not formally allowed to intervene in the pension hearings, the City of Peoria never became a “party” to those administrative proceedings. The Appellate Court noted that, because the City was not a party to the pension board hearings, there was an argument that the City lacked “standing” to even bring a lawsuit to challenge the pension board’s decision. The Court acknowledged that judicial review of an administrative decision (such as review of a pension board decision) is generally “limited and available only to (1) parties of record to the proceedings before the administrative agency (2) whose rights, duties, or privileges were adversely affected by the agency’s decision.” The Appellate Court declined to decide whether the City of Peoria lacked standing, where the firefighter did not file a cross-appeal on this issue, but the Court left open the possibility that, in future cases, municipalities who do not obtain party status will not have a right to seek review of adverse pension board decisions.

The chief lesson of the City of Peoria case is that municipalities cannot assume their voice will be heard when firefighters and police officers make disability claims. Municipal officers should work closely with their attorneys to identify each and every special circumstance that warrants their participation in a particular claimant’s pension board hearing. One special circumstance which may be relevant is avoidance of PSEBA liability, where doubts exist that a police officer or firefighter is really disabled, or whether the disability is really related to the employee’s duties, but PSEBA will not be an issue in all disability claims. If a municipality is denied the right to participate in a disability hearing, it needs to be prepared to describe what evidence or testimony it would have introduced at the hearing, had it been allowed to intervene. Failing to do so might result not only in an adverse pension board decision, it might result also in the municipality forfeiting its right to appeal the decision.

Illinois Supreme Court Clarifies use of Paid Sick Leave Following Birth of a Child

Teacher denied right to continue paid maternity leave following intervening summer break.

By:  Katherine L. Swise

katherine.swise@mhtlaw.com

In the case of Dynak v. Board of Education of Wood Dale School District No.7 (2020 IL 125062), the Illinois Supreme Court was asked whether accrued paid sick leave may be used to extend a teacher’s maternity leave into a new school year.  In a decision issued on April 16, 2020, the Court answered this in the negative, holding that a teacher who gave birth to a child prior to the end of the school year was not entitled to use her remaining accrued sick leave when school resumed in the fall.

The Dyank case involved a full-time teacher who gave birth to a child on the second-to-last day of the school year.  She requested and was granted use of accrued paid sick leave for those remaining 1.5 days of school.  When school resumed following the summer break, she made a request for 12 weeks of leave pursuant to the Family Medical Leave Act, and also requested to substitute 28.5 days of accrued paid leave for the first part of her FMLA leave.  The school district granted her request for FMLA leave but denied her request to substitute accrued paid sick leave, unless the teacher was able to demonstrate circumstances that allowed the use of paid sick leave pursuant to Section 24-6 of the Illinois School Code. 

Section 24-6 of the School Code provides for paid sick leave for full-time teachers, and interprets “sick leave” to include “personal illness, quarantine at home, serious illness or death in the immediate family or household, or birth, adoption, or placement for adoption.”  105 ILCS 24-6.  Section 24-6 further provides that a school district may require a doctor’s certification for absence of in excess of 3 days for personal illness or 30 days for birth.  The school district argued that, because the teacher’s request for paid sick leave in this case was more than 30 days (6 weeks) after the birth, she was not entitled to use paid sick leave without a doctor’s certification, or unless another triggering event applied.  The teacher argued that the School Code does not specify that paid sick leave for birth must be continuous or that it must be commenced or used within a certain period following the birth, and thus she was entitled to use her accrued sick leave after the summer break.

The Supreme Court rejected the teacher’s argument that she was entitled to use paid accrued sick leave at any time following the actual birth.  Rather, the Court held that the language of Section 24-6 “strongly suggests that the legislature intended that sick leave for birth must have a temporal connection to the birth.”  If a teacher could use their paid sick leave at any time after the birth, the Court reasoned, it would make no sense to require a doctor’s note for a period in excess of 30 days.  The Court further noted that there is no indication that the legislature intended sick leave for the birth of a child to operate any differently from sick leave for any other triggering event, such as personal illness or a death in the immediate family.  It would be absurd to require school districts to allow a teacher who got sick or had a death in the family over summer break to use accrued paid sick leave for those events once school resumed.  It is clear in those cases that the paid leave must be used at the time those events occur, and not at some later time of the teacher’s choosing.  Similarly, the Court held that paid sick leave for birth must be used at the time of the birth.  Thus, the Court held that the teacher in this case was not entitled to use accrued paid sick leave when school resumed after the summer break because the “triggering event”—in this case, the birth—had occurred more than 10 weeks earlier.

It is important to note that the Court’s holding in this case was limited to the facts of this case.  The Court implied that the outcome would have been different if the teacher was able to provide medical documentation supporting her need for additional sick leave so long after the actual birth.  Thus, there may be circumstances under which an employee would be permitted to use accrued paid sick leave for the birth of a child, even after an intervening summer break.  Additionally, she was granted unpaid leave under FMLA, which can be taken any time within the first year after the birth of a child. 

It is also important to note that there may be an applicable collective bargaining agreement provision that could change the outcome in a particular case.  There was no discussion of whether the teacher in this case was entitled to use her paid leave pursuant to the provisions of a collective bargaining agreement, so it is presumed that there was no applicable contract provision in this case.  However, school districts should take care to review the terms of their own collective bargaining agreement before relying on the outcome of this case to deny a teacher’s request for paid leave after an intervening summer break.  As always, be sure to consult your board attorney if you have any questions about the application of the Court’s holding in this case to your paid sick leave policy.

New Labor Law SB 1754 Requires Illinois Public Bodies To Give Unions Employee Information and Creates New FOIA Exemptions and Unfair Labor Practices

By: Joshua D. Herman

joshua.herman@mhtlaw.com

On December 20, 2019, Illinois passed SB 1754 into law, imposing new obligations on public employers.

Illinois public employers (governments, school districts, park districts and other public organizations) will now have to provide regular updates and information regarding their employees to public labor unions, as well as face new obligations to avoid engaging in unfair labor practices. Originally proposed to address limited concerns under the Illinois Governmental Ethics, Senate Bill 1754 was amended to impose new requirements on public employers in Illinois. The bill was passed as Illinois Public Act 101-0620 on December 20, 2019 and was effective immediately.

Among other changes to the law, the bill adds three new Freedom of Information Act (FOIA) exemptions to 5 ILCS 140/7.5:

“(oo) Information prohibited from being disclosed under the Illinois Educational Labor Relations Act.

(pp) Information prohibited from being disclosed under the Illinois Public Labor Relations Act.

(qq) Information prohibited from being disclosed under Section 1-167 of the Illinois Pension Code.”

New Affirmative Reporting Obligations to Unions

The Illinois Public Labor Relations Act and similar provisions of the Illinois Educational Labor Relations Act have been changed to require substantially more of public employers. Many collective bargaining agreements provide that the employer shall provide certain employee information to a union upon request. Now, unless otherwise agreed, a public employer must do the following:

At least once each month and upon request,  public employers must provide “exclusive bargaining representative[s] with a complete list of the names and addresses of the public employees in the bargaining unit, provided that a public employer shall not be required to furnish such a list more than once per payroll period. The exclusive bargaining representative shall use the list exclusively for bargaining representation purposes and shall not disclose any information contained in the list for any other purpose.” Further, when providing this list, employers must now also provide an Excel file (or other agreeable editable digital file) that includes:

  • the employee’s job title,
  • worksite location,
  • work telephone numbers,
  • identification number if available,
  • any home and personal cellular telephone numbers on file with the employer,
  • date of hire,
  • work email address, and
  • any personal email address on file with the employer.

Further, within 10 calendar days from the date of hire of a bargaining unit employee, the public employer must provide to the exclusive representative, in an electronic file or other mutually agreed upon format, the foregoing list of information for the new hire.

Employers Prohibited from Disclosing Certain Employee Information

The law creates a new section in the IPLRA prohibiting employers from disclosing the following information:

  • the employee’s home address (including ZIP code and county);
  • the employee’s date of birth;
  • the employee’s home and personal phone number;
  • the employee’s personal email address;
  • any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys); and
  • emails or other communications between a labor organization and its members.

The new restriction mandates that employers provide or report such requests to the union or employee, depending on the circumstances. Violations of these requirements may be pursued as an unfair labor practice before the ILRB or in an action before a circuit court.

The purpose of these new restrictions is unclear, and they unnecessarily complicate information processing by public employers because the prohibition does not apply to most situations, stating explicitly that it “does not apply to disclosures (i) required under the Freedom of Information Act, (ii) for purposes of conducting public operations or business, or (iii) to the exclusive representative [i.e., the union].”

As a consequence of these new prohibitions, public bodies should exercise caution and seek legal advice before responding to requests for the restricted information from anyone other than the union.

Union Access

While not typically a problem and generally provided for in most collective bargaining agreements, the new law also codifies a union representative’s right of access to employees in the bargaining units they represent by adding a new section 5 ILCS 315/6(c-10).

Dues Deductions

The new law also codifies an employer’s obligation to deduct dues and other labor organization payments from employees pursuant to the employees agreement. The law clarifies that such dues deduction authorizations may be made irrevocable for long periods of time.

Employers must begin deductions as soon as practicable, but no later than 30 days after receiving written notice of an employee’s authorization for the same. Employers must transmit the deductions to the union no later than 30 days after they are made. Deductions must continue until the employee notifies the employer they have revoked their authorization in writing in accordance with the terms of the authorization, or the employee is no longer employed by the employer in a bargaining unit position.

Violations of these requirements are a breach of the employer’s duty to bargain and an unfair labor practice.

The Act also established a new section 5 ICLS 315/6.5 providing a defense to employers and unions following Janus as to any claims by employees seeking reimbursement for fair share fees that employees may have previously paid.

New Unfair Labor Practices

In addition to the foregoing obligations, the Act creates additional unfair labor practices by amending Section 10 of the ILRA with the following:

(8) to interfere with, restrain, coerce, deter, or discourage public employees or applicants to be public employees from: (i) becoming or remaining members of a labor organization; (ii) authorizing representation by a labor organization; or (iii) authorizing dues or fee deductions to a labor organization, nor shall the employer intentionally permit outside third parties to use its email or other communication systems to engage in that conduct. An employer’s good faith implementation of a policy to block the use of its email or other communication systems for such purposes shall be a defense to an unfair labor practice; or

(9) to disclose to any person or entity information set forth in subsection (c-5) of Section 6 of this Act that the employer knows or should know will be used to interfere with, restrain, coerce, deter, or discourage any public employee from: (i) becoming or remaining members of a labor organization, (ii) authorizing representation by a labor organization, or (iii) authorizing dues or fee deductions to a labor organization.

Further, the law explicitly requires employers to “refer all inquiries about union membership to the exclusive bargaining representative.” Therefore, the public bodies should be cautious in handling such requests.

All public bodies that are party to collective bargaining agreements should immediately review its obligations under this new law and take steps to come into compliance.

Illinois Workplace Transparency Act Imposes New Requirements on Employers

By: Joshua D. Herman

joshua.herman@mhtlaw.com

The new Workplace Transparency Act imposes significant obligations on Illinois employers beginning January 1, 2020. The Act significantly changes the legal obligations of most employers throughout Illinois, including governments and elected and appointed officials.

The Act was passed to ensure workplaces are free from unlawful discrimination and harassment by, among other things, safeguarding employees’ rights to report wrongdoing and imposing reporting and training obligations on employers.

The Act is not applicable to collective bargaining agreements and contracts that are subject to the Illinois Public Labor Relations Act or the National Labor Relations Act.

Employers Cannot Restrict or Prevent Reporting

The Act limits employer restrictions on employee reporting of allegations of unlawful conduct to federal, state, or local officials. Employers cannot subject employees to unilateral conditions of employment or enter into agreements that prevent the employee from making truthful statements or disclosures about alleged unlawful employer practices.

Settlement and termination agreements may include promises of confidentiality, so long as the employee remains able to make truthful statements or disclosures regarding illegal misconduct.

The employer cannot prohibit or prevent an employee from reporting unlawful or criminal acts by the employer, or cooperating with any investigation or prosecution by a governmental agency.

Employers Must Protect Non-employees

Effective immediately, the Act also requires employers to prohibit and take reasonable measures to prevent the harassment of nonemployees in the workplace. A “nonemployee” means a person who is not otherwise an employee of the employer and is directly performing services for the employer pursuant to a contract with that employer. “Nonemployee” includes contractors and consultants.

The Act Imposes New Reporting Obligations on Employers

Beginning July 1, 2020, and on or before July 1 of each year thereafter, employers must make required disclosures to the Department of Human Rights if they have been subject to an adverse judgment or administrative ruling in which there was a finding of sexual harassment or unlawful discrimination against the employer in the preceding year. If the Department investigates an employer for a charge under the Act, employers must also, upon the Department’s request, make disclosures of settlements for up to the last five years regarding allegations of sexual harassment or unlawful discrimination in the workplace.

Employers are prohibited from disclosing the name of the victim of an act of alleged harassment or unlawful discrimination in any of the disclosures required by the Act.

Employers who fail to make the required disclosures may be subject to civil penalties.

Sexual Harassment Prevention Training

The Act imposes new requirements on employers to provide annual sexual harassment training to employees. The Act requires the Illinois Department of Human Rights to create a model sexual harassment program, but in the meantime, employers should provide training that, at a minimum, includes:

  • An explanation of sexual harassment consistent with the Act;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of responsibilities of the employer in the prevention, investigation, and corrective measures of sexual harassment.

After the Department establishes the model training program, employers must use it to supplement any existing program. Failure to follow these training requirements could result in a civil penalty against an employer.

New Civil Penalties

In most cases, the Act provides that employers will be given notice of violations and 30 days to cure them. Employers who fail to cure such violations will be subject to civil penalties. The Act provides that the penalties for failures to report or train will be imposed based on the size of the employer, the good faith efforts made by the employer to comply, and the gravity of the violation. Typically, for employers having fewer than four employees, the penalties shall be $500 for a first offense, $1,000 for a second offense, and $3,000 for a third or subsequent offense. For employers having four or more employees, the penalties will typically be $1,000 for a first offense, $3,000 for a second offense, and $5,000 for a third or subsequent offense.


Employers should immediately review their policies and procedures to ensure that they are in compliance with the new law before it goes into effect on January 1, 2019.

Image of cannabis leaves

Employers must tackle new Cannabis Regulation and Tax Act

Recent Amendments Clarify Employer Right to Discipline for Off-Duty Use and Possession of Cannabis

By: Joshua D. Herman

joshua.herman@mhtlaw.com

Beginning January 1, 2020, it will be lawful for adults in Illinois over the age of 21 to consume and possess cannabis in accordance with the Illinois Cannabis Regulation and Tax Act (“CRTA”). The CRTA limits the amount of cannabis that may be possessed and prohibits its consumption in any “public place.” Meanwhile, the Right to Privacy in the Workplace Act (“RPWA”) prohibits employers from taking adverse employment action against employees for their use of lawful products off-premises, during non-working hours and while not on call.  This has raised questions regarding whether employers may discipline employees for use of cannabis during non-working hours.  A recent amendment to the CRTA has attempted to address this issue.

Under the CRTA as originally enacted, employers could still enforce reasonable zero-tolerance policies, including requiring random drug testing, as well as drug testing when the employer has a good faith belief an employee used, possessed or was under the influence of cannabis at work. However, it did not clearly state whether employers may discipline employees based solely on a positive drug test, without some indication the employee used, possessed or was under the influence of cannabis in the workplace, or otherwise jeopardized workplace safety.

On December 4, 2019, Governor Pritzker signed into law Public Act 101-593 (SB 1557) amending the CRTA to specify that employers may

  • implement reasonable workplace drug policies, including subjecting employees to reasonable drug testing or reasonable and nondiscriminatory random drug testing; and
  • discipline or terminate an employee or withdraw an offer of employment due to a failed drug test.

The requirement that drug policies be “reasonable” and “nondiscriminatory” suggests that testing should be random or required only under certain circumstances (such as pre-employment or following a workplace accident.)  Employers should not take this as license to test any employee suspected of consuming cannabis during non-working hours.  However, as amended, the CRTA now authorizes public employers to prohibit police, fire, and corrections officers, and paramedics from using or possessing cannabis off-duty.

Prior to January 1st, all employers should review and update their policies and employee handbooks to ensure they clearly identify prohibited cannabis-related conduct.

Employers cannot look into salary history

Equal Pay Act prohibits salary history inquiries

Employers Can No Longer Ask About or Look into Salary History

By: Joshua D. Herman

joshua.herman@mhtlaw.com

Effective September 29, 2019, Public Act 101-0177 (the “Act”)  made significant changes to the Illinois Equal Pay Act affecting the equality of pay and the types of inquiries employers may make of employees.

Generally, the Act makes it unlawful for an employer to seek wage or salary history, including benefits or other compensation, from a job applicant or a job applicant’s current or former employer. Employers may not screen job applicants based on their current or prior wages or salary histories (including benefits or other compensation) by requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria.

The Act does not prevent an employer from providing information about the wages, benefits, compensation or salary it offers, or from engaging in discussions with an applicant regarding their expectations with respect to wages, salaries, benefits or other compensation.

Violations of the Act could subject the employer to civil action and damages. Such damages could include:

  • Injunctive relief (requiring the employer to take or refrain from taking certain actions);
  • Special damages up to $10,000;
  • Compensatory damages to the extent they exceed special damages; and
  • Costs and reasonable attorney’s fees.

The Act allows a claim for violation of these provisions to be brought within five years.

Employers should review their hiring processes and procedures to ensure they do not run-afoul of the amended Illinois Equal Pay Act.

Changes to Ashley’s Law: What Does It Mean for Medical Marijuana in Schools?

Governor signs bill expanding the administration of medical marijuana to students.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On August 12, 2019, Governor Pritzker signed Senate Bill 455 expanding “Ashley’s Law”, which currently allows a parent, guardian or designated caregiver to administer medical marijuana to a student with a valid prescription on school grounds and on school buses.

The law’s expansion (Public Act 101-0370) amends Section 22-33 of the Illinois School Code to require school districts, public schools, charter schools, and non-public schools to allow a school administrator or nurse to administer a “medical cannabis infused product” (i.e. edible and topical products) to a student that is a registered qualifying patient under the Compassionate Use of Medical Cannabis Program Act while on school grounds, at school-sponsored activities, at before or after school care on school grounds, or on a school bus.  However, the law does not explicitly require school administrators or nurses to actually administer medical marijuana to students; instead, the amendment only requires schools to allow these personnel to administer medical marijuana to a student if they are willing to do so.

The amendment also permits schools to authorize students to self-administer their own medical marijuana under the direct supervision of an administrator or nurse.  As with the change discussed above, the law does not explicitly require schools to allow its students to self-administer their medical marijuana; however, they are permitted to do so.

Additional requirements and training

In order for a school administrator or nurse to administer medical marijuana to a student, or for a student to self-administer medical marijuana, the parent or guardian must provide the following to the school:

(1) written authorization for its use, including the time where or the special circumstances under which the medical marijuana must be administered, and

(2) a copy of the registry identification card of the student (as a registered qualifying patient) and the parent or guardian (as a designated caregiver).

If a school permits self-administration by a student, the authorization must be renewed each school year.

Medical marijuana to be administered by a school nurse or administrator, or self-administered by the student, may now be stored on school property, but it must be stored in the same manner as all other student medication at the school, and can only be accessed by the school nurse or an administrator.

Personnel who elect to administer medical marijuana to students must complete training on the administration of medical cannabis infused products before they may administer cannabis to students.  The training will be developed by the Illinois State Board of Education and Illinois Department of Public Health., and must be completed annually.

Finally, the new law amends Section 25 of the Compassionate Use of Medical Cannabis Program Act to extend its immunities to school administrators and nurses who elect to administer medical cannabis to students or to assist students in self-administration under the School Code.  Such nurses and administrators are immune from arrest, prosecution, and denial of any right or privilege, including a civil penalty.  However, unlike the immunities for designated caregivers, school nurses and administrators are not immune from disciplinary action by an occupational or professional licensing board.

Next steps

The new law takes effect on January 1, 2020. Prior to the effective date schools should review their policies addressing the administration of medical marijuana as necessary. Schools without such policies should come into legal compliance by establishing them, because such policies were required when Ashley’s Law first became effective on August 1, 2018.  

Schools are encouraged to contact legal counsel to discuss the impact of the changes to Ashley’s Law and to formulate a new policy regarding the use of medical marijuana by qualifying students on school buses and school grounds that is consistent with the amendments to the School Code.

Illinois Human Rights Act will apply to almost all employers in July of 2020

By: Joshua D. Herman

joshua.herman@mhtlaw.com

On August 21, 2019, Governor Pritzker signed Public Act 101-0430 into law, amending the Illinois Human Rights Act (“IHRA”).  Previously, the IHRA applied only to employers having 15 or more employees, except in cases of pregnancy discrimination, sexual harassment, and disability discrimination.

Effective July 1, 2020, the IHRA’s provisions apply to employers having at least one employee within Illinois during 20 or more calendar weeks in a calendar year of or preceding an alleged claim.  This expansion of IHRA’s applicability will subject most employers to potential liability under state law for claims of age discrimination, race, national origin, gender, sexual orientation, religion, and other claims previously only available to employees of employers having 15 or more employees.

2019 Elected and Appointed Officials Municipal Law Seminar – May 11, 2019

On May 11, 2019, lawyers of Miller, Hall & Triggs, LLC will host the firm’s twelfth biennial Municipal Law Seminar for Elected and Appointed Officials from 8:30 am until noon, with lunch served thereafter.
Register here.

This seminar focuses upon topics of interest to current and newly elected Mayors and council members, Presidents and Trustees, City Managers and Administrators, City Clerks and in-house legal counsel, as well as all other Illinois government officials, including:

  • Illinois Capital Bill and Interaction with State Government
  • Making Meetings Productive and Professional
  • Code Enforcement and Property Issues
  • Developments in the Open Meetings Act
  • Public Bidding and Prevailing Wage
  • Negotiations, Labor Relations and Employee Discipline
  • Avoiding personal liability
  • Alternative Revenue Sources: Taxes, Fees, and Business Registration
  • Regulating solicitors and panhandlers
  • Open Meetings Act and Freedom of Information Act: Q & A
  • How to choose professionals
  • Code enforcement and property issues
  • Healthcare and employee benefits
  • Economic Development and the Role of the Municipality
  • Cost Savings Achieved through Refinancing of Existing Debt
  • Code Enforcement and Property Issues, and
  • Recent developments in the Open Meetings  Act and Freedom of Information Act.

The seminar will be held at the East Peoria Campus of Illinois Central College.

You may register here to attend the seminar, or if you would like to discuss any of the above topics or have questions regarding other issues in municipal and public law, please contact Richard Joseph at (309) 671-9600.

Keynote Speaker: Illinois State Senator David Koehler

Illinois State Senator David Koehler
Illinois State Senator David Koehler

Illinois State Senator David Koehler will be our keynote speaker, discussing the Illinois Capital Bill as well as Interaction with State Government.

Register here.

Residency Requirements for Municipal Employees

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

In most cases, a municipality can chose whether to mandate that its employees reside within the municipality’s corporate limits.   Special rules, however, apply to police officers, firefighters and appointed officers of a municipality.

Municipalities that have chosen to impose employee residency requirements have sometimes faced constitutional challenges to their policies.  These challenges seldom succeed in the courts.  All that is needed for an employee residency requirement to be constitutional is that the municipality had a “rational basis” for adopting the requirement.  This standard can be easily met.  The Seventh Circuit Court of Appeals (the federal appeals court that sits in Chicago) has noted, for example, that a city’s need to have its employees sometimes available on short notice is a sufficient, rational reason for a residency requirement to make it constitutional.  Gusewelle v. City of Wood River, 374 F.3d 569, 578 (7th Cir. 2004.)

Although municipalities may choose to impose residency requirements on employees, the Municipal Code provides that certain appointed municipal officers must be residents. The default rule is that all appointed officers must be residents of the municipality in which they serve. (65 ILCS 5/3.1-10-6.) However, the Municipal Code exempts from this residency requirement “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge.”  There are no reported court cases giving guidance on this point, but it appears that a city council or village board could not adopt an ordinance imposing a residency requirement on “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge,” where such an ordinance would probably constitute an unlawful restriction on the mayor’s or village president’s authority to appoint officers of his or her choosing to these offices.

Police officers and firemen are considered officers, and per default rule, they must be residents of their municipality.  But, unlike the case for other officers, the Municipal Code expressly provides that a municipality can adopt an ordinance that changes this default rule and not require that its police officers and firemen be residents.  It is our opinion that a municipality could also exclude its police chief or fire chief from any residency requirements.  Note that for municipalities whose police officers of firemen are appointed by a board of police and fire commissioners, residency requirements for police officers or firemen cannot be made more restrictive for any individual during his or her period of service, nor can residency be made a condition of promotion, except for the rank or position of fire or police chief.  (65 ILCS 5/10-2.1-6.)

Who is an officer of a municipality, as opposed to a mere employee, is not always clear.  The Municipal Code lists the following positons, which may be filled by the mayor or village president with the advice and consent of the city council or village board, as being appointive offices:  “(1) a treasurer (if the treasurer is not an elected position in the municipality), (2) a collector, (3) a comptroller, (4) a marshal, (5) an attorney or a corporation counsel, (6) one or more purchasing agents and deputies, (7) the number of auxiliary police officers determined necessary by the corporate authorities, (8) police matrons, (9) a commissioner of public works, (10) a budget director or a budget officer, and (11) other officers necessary to carry into effect the powers conferred upon municipalities.”  (65 ILCS 5/3.1-30-5.)  This last category is vague, but the courts have provided some guidance in its interpretation.  In determining whether a person is an employee or an officer, the courts look at whether appointment is for a certain term, whether an oath of office is required, and whether the person has the supervisory and discretion to act on behalf of the municipality.   Rinchich v. Village of Bridgeview, 235 Ill. App. 3d 614, 628, 601 N.E.2d 1202, 1211 (1st Dist. 1992).

If a position is held by an appointed officer, as opposed to a hired employee, and if there is no statutory exception that allows or requires the officer to be a non-resident, the Municipal Code requires that the person to be a resident.  For example, an appointed city administrator, who exercises a large amount of discretion in the performance of his or her duties, would likely be an officer, and without an applicable exception to the default rule that appointed officers must be residents, the city administrator would be required to be a city resident.

In summary:

  1. A municipality can choose whether to require residency of its “ordinary” employees.
  2. A municipality can choose whether to require residency of its police officers and firemen.  However, if there is no ordinance providing otherwise, police officers and firemen must be residents of the municipality.
  3. A city council or village board likely lacks the authority to require residency of the municipality’s attorney, engineer, or any officer required to have technical training or knowledge. Imposing a residency requirement improperly limits the mayor’s or village president’s power to make appointments to these offices.
  4. Other appointed officers of a municipality may be required by statutes to be residents of the municipality. Consult with your attorney if you have questions whether an appointed officer can reside outside of your municipality’s corporate limits.