Miller, Hall & Triggs Attorney presents seminar on Real Estate Closings

On March 21, 2018, Christopher Oswald of Miller, Hall & Triggs presented on the topic of Real Estate Closings as a part of the Peoria County Bar Association’s “Brown Bag” continuing legal education series of seminars.  Together with another local attorney, Mr. Oswald emphasized planning and communication at the earliest stages of the transaction as key elements of bringing a transaction to a successful close- emphasizing that in order to best represent a client’s interest, practitioners should pay attention to often overlooked issues and make a point to have effective communication with all parties and professionals assisting with the transaction.

 

Mr. Oswald regularly assists clients of Miller, Hall & Triggs, LLC in a wide range of real estate issues, and has developed relationships with professionals throughout the State of Illinois to assist clients in planning for, structuring and bringing to a successful close a variety of real estate transactions.  He presently serves as Chairman of the Peoria County Bar Association Real Estate Committee.

 

 

Press Release

The law firm of MILLER, HALL & TRIGGS, LLC is pleased to make the following announcements regarding the attorneys at our firm.  As of January 1, 2018, Katherine L. Swise has become a member of the firm.  Also, Jennifer Klein VandeWiele and Nancy L. Rabel have become Of Counsel with the firm.  Further, the firm recently welcomed Kathleen M. Carter and Lauren A. Christmas as our newest Associates with the firm.  With our continued focus in the practices areas of local government and municipal law, education law, commercial and residential real estate, business and corporate law, and estates and trusts, we are excited to have these attorneys join our team at Miller, Hall, & Triggs, LLC.

Changes to the Juvenile Court Act

Records of Municipal Ordinance Violations to be Kept Confidential & Automatic Expungement of Law Enforcement Records

 

Effective January 1, 2018, two important changes were made to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.) (the “Act”) concerning records of minors who are investigated, arrested or taken into custody prior to the minor’s 18th birthday.

 

Under prior law, the Act only applied to the courts and law enforcement agencies (which include municipal police departments), rather than to units of local government themselves.

 

However, within the recent changes to the Act, municipalities are now required to keep confidential all records of municipal ordinance violations that are maintained by the municipality and which relate to a minor who has been investigated, arrested or taken into custody prior to the minor’s 18th birthday.  Except in certain limited situations, such ordinance violation records are not subject to disclosure, inspection, or copying.

 

This change to the Act will likely not have a significant impact upon those municipalities which utilize a law enforcement agency for the issuance of ordinance citations because records that are maintained by law enforcement agencies were previously subject to the Act’s confidentiality and disclosure rules.  However, those municipalities which do not utilize a law enforcement agency for the issuance of ordinance citations (i.e. code enforcement officers or marshals) are now subject to these rules.

 

Specifically, municipalities are now prohibited from disclosing to the general public any records pertaining to an ordinance violation by a minor.  In addition, municipalities are only authorized to allow the inspection and copying of a minor’s ordinance violation record(s) in very limited circumstances, including, but not limited to, the following:

 

  1. Any local, State, or federal law enforcement officer when necessary for the discharge of their official duties;
  2. Prosecutors, probation officers, social workers, and other individuals assigned by the court and in connection with criminal proceedings;
  3. Department of Children and Family Services (DCFS); and
  4. Appropriate school officials only if there is an imminent threat of physical harm to students, school personnel, or others present in the school or on school grounds.

 

Interestingly, the Act does not create an exception for the disclosure, inspection or copying of records by the subject minor, the minor’s parents or guardians, or an authorized agent.  While the Act may not explicitly authorize such action, it may nevertheless be required under the law.  Municipalities should consult with counsel prior to any disclosure, inspection or copying of records which relate to a minor.

 

The second change, while only impacting law enforcement agencies, imposes a rather large burden upon local law enforcement agencies and municipal police departments.  The Act now requires all law enforcement agencies to expunge or permanently destroy certain records that are maintained by the law enforcement agency pertaining to minors on an annual basis.  These records, which are called “law enforcement records”, include, but are not limited to, records of arrest, station adjustment, fingerprints, probation adjustments, the issuance of a notice to appear, and any other records or documents relating to a minor suspected of committing an offense or evidence of interaction with law enforcement (i.e. ordinance violations).

 

This new requirement mandates that, on or before January 1st of each year, all law enforcement agencies within the State of Illinois automatically expunge all law enforcement records, except records for a serious felony offense, relating to events occurring before an individual’s 18th birthday.  However, such law enforcement records must meet the following requirements in order to qualify for automatic expungement:

 

  1. One year or more must have passed since the date of arrest or the documented law enforcement interaction;
  2. No petition for delinquency or criminal charges has been filed relating to the arrest of documented law enforcement interaction; and
  3. Six (6) months must have passed without an additional or subsequent arrest or filing of a petition for delinquency or criminal charges.

 

Local law enforcement agencies and municipal police departments should work with counsel and the State’s Attorney’s Office to ensure that records qualify for expungement prior to their destruction.

 

Municipalities are also reminded that expunged juvenile records may not be considered in employment matters.  The Act requires applications for employment, including employment with a public body, to contain a statement that the applicant is not obligated to disclose expunged records relating to any act(s) that was committed while the applicant was a minor.

Miller Hall & Triggs closes on two RAD Low Income Housing Tax Credit Transactions in December 2017

Richard M. Joseph with Miller, Hall & Triggs, LLC closed on two RAD Low Income Housing Tax Credit Transactions in December 2017 benefiting the Housing Authority of the City of Rock Island, Illinois and its affiliated not for profit corporation and the Housing Authority of the City of Pine Bluff, Arkansas and its affiliated not for profit corporation.

The RAD program,  administered by HUD,  was established in order to give public housing authorities a powerful tool to preserve and improve public housing projects and address issues of deferred maintenance by providing for the voluntary conversion of public housing and other HUD-assisted properties to long-term, project-based Section 8 rental assistance, utilizing either project-based vouchers or project-based rental assistance contracts. RAD allows public housing agencies to leverage public and private debt and equity to help ensure that the units remain affordable to low income households.

The Rock Island, Illinois project made possible the conversion and rehabilitation of 141 units in an eleven story apartment building through the use of 4% low income housing tax credits generating $3,590,410 in equity, $6,100,000 Multi-family Housing Revenue Bonds issued through the Illinois Housing Development Authority, $4,487,200 non-recourse loan through the HUD 223(f) program, and use of Public Housing Operating Reserve Funds and Replacement Housing Factor Funds.

The Pine Bluff, Arkansas project made possible the conversion and substantial rehabilitation of 251 units in four separate apartment complexes through the use of 4% low income housing tax credits generating $5,557,636 in equity, $10,500,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority, $7,055,400 non –recourse loan through the HUD 223(f) program and use of Public Housing Operating Reserve Funds and Public Housing Capital Funds.

Governor Mandates Public Entities Enact Policies Prohibiting Sexual Harassment by January 15, 2018

  On November 16, 2017, Governor Rauner signed into law Public Act 100-0554, which amends the Illinois State Officials and Employees Ethics Act by requiring local governmental entities to adopt, by ordinance or resolution, a policy prohibiting sexual harassment.  5 ILCS 430/70-5.  Although many governmental entities may already have sexual harassment policies in place, the law sets forth new minimum standards for all policies.  According to the new amendments, a policy prohibiting sexual harassment shall include, at a minimum:

  • a prohibition on sexual harassment;
  • details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights;
  • a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under this Act; and
  • the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

     For purposes of the Illinois State Officials and Employees Ethics Act, “governmental entity” is defined as “a unit of local government (including a community college district) or a school district but not a State agency or a Regional Transit Board.” 5 ILCS 430/1-5.  This would include, but not be limited to municipalities, counties, townships, park districts, school districts, and community college districts.  All governmental entities should review their current sexual harassment policies to ensure that they meet the minimum standards and were properly approved by either resolution or ordinance by the January 15, 2018 deadline. To view the full Act, see Public Act 100-0554

Joshua Herman presents small business cyber security seminar

Small Business Cyber Security Seminar Presented By MHT

Joshua Herman, of Miller, Hall & Triggs, presented a Small Business Cyber Security seminar to local business owners. The presentation was held on May 23, 2017, in association with the Illinois Small Business Development Center (the “SBDC”) at Bradley University’s Turner Center for Entrepreneurship.

The presentation was part of an ongoing cyber security certificate series by the SBDC. Herman provided local businesses the legal information they need to operate their business in spite of today’s technological and legal risks and pitfalls. The presentation addressed issues important to small businesses.

State and Federal Cyber Security Laws Impacting Small Businesses

Herman gave practical advice regarding small business cyber security legal obligations. He explained what information small businesses must protect and the repercussions in the event of a cyber security breach. Some of his remarks addressed the following:

  • Illinois Personal Information Protection Act, Right to Privacy in the Workplace Act, Use of Social Security Numbers, Illinois Trade Secrets Act, Illinois Personnel Records Review Act, HIPAA, FMLA, Fair and Accurate Credit Transactions Act, and the Gramm-Leach Bliley Act
  • Legal requirements to protect consumer and employee information and prevent cyber security breaches
  • Legal notice requirements in the event of a cyber security breach
  • Potential liabilities and penalties for failing to protect information or suffering a breach

 Protecting Against Common Cyber Security Vulnerabilities

Herman identified common cyber security vulnerabilities:

  • Third Party Contractors
  • Software and service providers, click-wrap agreements, browse-wrap agreements, Terms of Service Agreements, End-User License Agreements (EULAs)
  • Employees
  • Customers
  • Competition/Corporate Espionage
  • Hackers, etc.

He also provided helpful suggestions to protect against such risks and mitigate potential liability, including:

  • Conducting a needs, risks and vulnerabilities assessment
  • Preventative actions, such as hiring changes, training, and personnel manual changes
  • Technology upgrades and defenses
  • Obtaining cyber liability insurance against cyber security risks
  • Obtaining professional advice and legal counsel

Attendees appreciated Herman’s straightforward advice, giving positive reviews of the experience:

“Very informative and engaging with a difficult topic.” – Small business owner

“Very interesting, gave pertinent examples. He made content that would have normally been dry, very interesting and captivating. Very good.” – Small business owner

Small Business Cyber Security Information Available

Although the seminar is over, business owners with questions on cyber security can still receive a complimentary copy of the seminar materials by calling Joshua Herman at (309) 671-9600 or contacting us here.

MHT Partners discuss municipal law with elected and appointed officals

MHT Holds Free Seminar For Elected And Appointed Officials

On May 13, 2017, MHT attorneys enjoyed spending a morning with newly-elected and current government officials and appointees for its Eleventh Biennial Elected and Appointed Officials Municipal Law Seminar.

Officials from municipalities across Illinois attended this free seminar held at the Illinois Central College campus in East Peoria, Illinois.

Keynote Speaker: Illinois Senator Chuck Weaver

Chuck Weaver, Illinois State Senator of the 37th District , keynote speaker to elected and appointed officals.
Chuck Weaver, Illinois State Senator of the 37th District

Illinois State Senator Chuck Weaver’s was our keynote speaker. Senator Weaver’s candid and pragmatic remarks regarding attendees’ roles in interacting with state government were warmly received.

As a former City councilman, Senator Weaver’s insights were particularly instructive.

Elected And Appointed Officials Learned About Laws Effecting Them

Attendees were also presented with the practical information newly elected and sitting municipal officials would want to do know:

  • How to make meetings productive and professional
  • Practical methods to address property issues and code enforcement
  • Recent developments in the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA)
  • Negotiations and labor relations
  • Police and Fire
  • Employee discipline
  • Municipal development: opportunities and tools
  • Avoiding personal liability as a municipal official
  • Saving the municipality money – financing and refinancing opportunities
  • Restrictions of the first amendment on municipalities, public parks and public areas
  • Healthcare and employee benefits
  • Choosing professional, such as municipal managers, engineers, and attorneys

Held every two years to coincide with Illinois municipal elections, the next Elected and Appointed Officials Municipal Law Seminar will be held in 2019, but you do not have to wait until then. We regularly provide advice on these topics and more to our municipal clients. If you have questions about municipal law, or would simply like a complimentary copy of our seminar materials, please call (309) 671-9600 or contact us here.

Elected and Appointed Municipal Law Seminar – May 13, 2017

Lawyers with Miller, Hall & Triggs will host its eleventh biennial Municipal Law Seminar on May 13, 2017 from 8:30 am to noon with lunch to be served thereafter.

This seminar focuses upon topics of interest to current and newly elected Mayors and council members, City managers and administrators, City clerks and in-house legal counsel, including:

  •  Economic Development and the Role of the Municipality;
  •  Cost Savings Achieved through Refinancing of Existing Debt;
  •  Code Enforcement and Property Issues;
  • Recent developments in the Open Meetings  Act and Freedom of Information Act;
  • Avoiding Personal Liability for Municipal Officials;
  • Use of Public Parks and other Public Areas – First Amendment Implications;
  • Negotiations, Labor Relations and Employee Discipline; and
  • Making your Meetings more Productive and Professional

 

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

 

Registration is now closed. If you would like to discuss any of the above topics or have questions regarding other issues in municipal and public law, please contact us at (309) 671-9600.

Court Orders New Overtime Rules Delayed

Employers Question How To Pay Overtime Now That New Overtime Rules Delayed

By Joshua Herman

email: joshua.herman@mhtlaw.com

For now, implementation of new federal overtime regulations has been delayed. A federal court halted the December 1, 2016, implementation of the Department of Labor’s (“DOL’s”) new regulations doubling the minimum annual salary from $23,660 ($455 weekly) to $47,476 ($913 weekly) in order for an executive, administrative or professional employee to be exempt from overtime requirements. Following the court’s ruling in State of Nevada v. U.S. Dep’t of Labor, No. 16-00731 (E.D. Tex. Nov. 22, 2016), employees exempt from overtime requirements will continue – for now – to be those receiving $23,660 annually ($455 weekly).

How this change impacts Illinois employers is less than clear.

The underlying opinion (available at http://src.bna.com/kgs) is the product of a coalition of states and businesses seeking to overturn the new rule. The coalition argued the DOL overstepped its authority because the Fair Labor Standards Act (“FLSA”) enacted by Congress provides that “any employee employed in a bona fide executive, administrative, or professional capacity… as such terms are defined and delimited from time to time by regulations of the Secretary” shall be exempt from minimum wage and overtime requirements. 29 U.S.C. § 213(a)(1). The FLSA overtime exemptions do not refer to any salary requirement.  In analyzing Congress’ actual language, the court found that Congress intended to exempt employees based on their executive, administrative, or professional (“EAP”) duties, not their salaries.

The court’s preliminary injunction states the new regulations are unlawful because the DOL “exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.” The court explains that “[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

Despite the fact that the DOL has stated it cannot evaluate overtime exemption based on salary alone, the court found that the new rules would essentially create a de facto salary-only test. The court further held that the new regulations would cause irreparable damage due to the significant expense of compliance if they were allowed to go into effect.

The court held that public interest is best-served by an injunction, stating that:

If the Department lacks the authority to promulgate the Final Rule, then the Final Rule will be rendered invalid and the public will not be harmed by its enforcement. However, if the Final Rule is valid, then an injunction will only delay the regulation’s implementation. Due to the approaching effective date of the Final Rule, the Court’s ability to render a meaningful decision on the merits is in jeopardy. A preliminary injunction preserves the status quo while the Court determines the Department’s authority to make the Final Rule as well as the Final Rule’s validity.

Consequently, the court imposed a nationwide injunction because the DOL’s regulations are applicable to all states, extending the scope of alleged irreparable injury nationwide.

The injunction prevents the DOL from implementing and enforcing the new overtime regulations; however, the impact of this ruling on Illinois employers is less than clear. The injunction is only temporary, pending further action by that court. The court can lift the injunction at any time, or if the court makes it permanent, the injunction can be reversed upon appeal. If lifted or reversed, courts dispute whether the regulations would retroactively apply to employers who delayed implementation.

Should I implement overtime changes now that new overtime rules have been delayed?

Employers have significantly invested in preparing for the new regulations, but they are now faced with the crucial question: “Should I delay implementing changes to comply with the new regulations to avoid significant and possibly unnecessary costs, or should I proceed?” If the regulations eventually become effective, employers who violate them may be fined up to twice the unpaid overtime, civil penalties, and be responsible for employees’ attorneys’ fees.

Employers should consider the risks of further action and proceed on a case by case basis, seeking legal advice where necessary.

Generally, employers who have prepared no-cost solutions (such as limiting employees to 40 hours a week, or converting a salaried employee to hourly compensation at a rate that will not incur additional costs after considering overtime), should implement those solutions. Costly changes (such as raising an employee’s salary to the new threshold) can be delayed while the temporary injunction is in effect; however, employers should immediately begin to track impacted employee hours. If the injunction is lifted, or applied retroactively, these records should allow employers to adequately compensate employees in compliance with the new laws while minimizing potential risks associated with their delay.

Employers that have already implemented costly changes should exercise extreme caution before reverting to earlier practices. Not only will such actions have practical effects on current employee morale, they may also be prohibited based on collective bargaining requirements or other property rights employees may have in their new salaries.

It is uncertain whether the current exempt salary threshold will remain, increase as a compromise, or be completely eradicated. Further, it is unclear whether the incoming Trump administration will continue to push for these regulations, which were created at the Obama administration’s request. Only time will tell. Wise employers will pay close attention to developments on this matter.

For more information or to receive fact-specific advice, contact Joshua Herman and our Labor and Employment team.

Krumpe Wins 2016 Pro Bono Service Award

In connection with National Celebrate Pro Bono week, the 10th Judicial Circuit has awarded Jeffrey E. Krumpe the 2016 Pro Bono Service Award in recognition of his selfless service.  Krumpe has accepted cases from Prairie State Legal Services since 1995.  In that time he has handled 25 cases and provided more than 420 hours of free legal services to clients.  Over the years, Jeff has successfully represented numerous clients with unlawful garnishments,  divorces, lien foreclosures and fraud cases.