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.

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.

Miller Hall & Triggs closes on two RAD Low Income Housing Tax Credit Transactions in June 2018

Richard M. Joseph with Miller, Hall & Triggs, LLC closed on two RAD Low Income Housing Tax Credit Transactions resulting in the conversion of all 390 public housing units of the Housing Authority of the City of Texarkana, Arkansas.

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 Texarkana RAD Conversion project made possible the conversion and rehabilitation of 335 units in eight separate apartment complexes through the use of 4% low income housing tax credits generating $6,356,897 in equity, $13,100,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority, $10,000,000 non-recourse loan through the HUD 221(d)(4) program, and use of Public Housing Operating Reserve Funds.

The Housing Alliance 2 project made possible the conversion and substantial rehabilitation of 55 units in two separate apartment complexes and five single-family homes through the use of 4% low income housing tax credits generating $1,234,370 in equity, $2,900,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority and use of Public Housing Operating Reserve Funds and Public Housing Capital Funds.

Illinois FOIA prohibits disclosure of disciplinary records older than 4 years

Disciplinary Records Older Than 4 Years Prohibited from Disclosure in Response to FOIA Request

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

Public employers have sometimes attempted to prevent the disclosure of an employee’s disciplinary records in response to Freedom of Information Act (FOIA) request under the theory that a request for such records is an unwarranted invasion of the employee’s privacy.  However, it is now settled law in Illinois that disciplinary records of a public employee, where discipline was actually imposed and which bear on the employee’s ability or fitness to do his or her work, are public records that must be released in response to a FOIA request.   But, must a public employer disclose every past reprimand or suspension of an employee, no matter how long ago the discipline was imposed?

The answer is “no.”  The Illinois Appellate Court, in the case Johnson v. Joliet Police Department, decided on June 19, 2018, ruled that, when a public employer received a FOIA request for an employee’s disciplinary records, the Personnel Record Review Act (Review Act) mandates that the employer delete those records which are more than four years old.

In the Johnson case, the Joliet Police Department denied a plaintiff’s FOIA request for records relating to the discipline of one of its employees.    This employee had been disciplined twice, but that discipline had been imposed more than four years prior to the FOIA request.

In ruling that the Joliet Police Department justifiably denied the FOIA request, the Appellate Court noted that Section 8 of the Review Act provides that “An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.” (820 ILCS 40/8.)

Section 8 of the Review Act appears straightforward, but the plaintiff making the FOIA request in the Johnson case argued that Section 11 of the Review Act, which states that the Review Act is not to be construed as to diminish a right to access records already otherwise provided at law, meant that the Joliet Police Department could not limit his FOIA rights. (820 ILCS 40/11.) The Appellate Court disagreed, finding that the plaintiff’s interpretation of the Review Act rendered meaningless Section 7.5(q) of FOIA, which exempts from FOIA information prohibited from being disclosed by the Review Act.  (5 ILCS 140/7.5(q).)

Practice Tips

 If your public body receives a FOIA request for employee disciplinary records, the first step is to determine what records are responsive to the request, and whether the records are actually disciplinary records.  Not all records regarding an employee’s poor performance are disciplinary records.  For example, in the Johnson case, the Appellate Court noted that citizen complaint registers were not disciplinary records.  Records of an investigation or adjudication, to determine whether discipline should be imposed against a specific employee, are not disciplinary records.  Neither are performance evaluations.  But, letters of reprimand or notices of suspension (with or without pay) are disciplinary records.  These records must usually be disclosed, but pursuant to Section 8 of the Review Act, disciplinary records more than 4 years old must be deleted from the response to a FOIA request.  Whenever records are withheld in response to a FOIA request, the requester must be informed of the reason for the denial, while also being informed of his or her right to appeal to the Illinois Attorney General’s Public Access Counselor or file a lawsuit seeking review of the denial.

If any disciplinary records are being released to a third party, Section 7 of the Review Act requires that the employee receive prior notice before the records are released. (820 ILCS 40/7.)  When disciplinary records are being released to a third party pursuant to a FOIA request, notice to the employee can be by email; otherwise, the notice must be by first-class mail. Employees have the right to supplement their personnel file with their side of the story, and any written explanations should be released along with the disciplinary records being divulged, but employees do not have the right to veto or delay the release of their disciplinary records.

 

The Illinois Small Wireless Facilities Deployment Act

Implementing the Small Wireless Facilities Deployment Act

By Scott Brunton

email: scott.brunton@mhtlaw.com

In April 2018, Public Act 100‑585 – the Small Wireless Facilities Deployment Act (the “Act”) – was signed into law.  This Act became effective on June 1, 2018, and impacts all municipalities in the State of Illinois with the exception of Chicago.  Small wireless facilities – being antennas and other similar devices – are telecommunications hardware that can be attached to existing utility poles, light poles, or other structures  often found in the public right-of-way.  These small wireless facilities will allow wireless carriers to enhance cellular transmissions in hard to reach areas, while also allowing implementation of the next generation 5G wireless technology.  Illinois municipalities will need to act promptly to ensure that these small wireless facilities are not being installed and operated in municipal rights-of-way without permissible oversight by the municipality as provided under the Act – including the collection of permit fees.

In passing the Act, the Illinois Legislature noted that small wireless facilities are critical for delivering wireless access to advanced technology, broadband, and 9-1-1 services to homes, businesses, and schools in Illinois.  The Illinois Legislature further noted that this access to wireless technology is integral to the economic vitality of the State and to the lives of all Illinois citizens.  But, in making these proclamations and passing this Act, the State has significantly limited a municipality’s ability to regulate the placement and installation of small wireless facilities on any right-of-way under the control of the municipality.  The Act also requires that if a municipality grants access to other telecommunication carriers to municipal property outside of the public right-of-way, the municipality must provide the same access these small wireless facilities.

Specifically, the Act addresses the installation, mounting, maintenance, modification, operation, or replacement of small wireless facilities on any support structure or utility poles in a municipality’s right-of-way (this is defined as “collocation of small wireless facilities”).  Small wireless facilities are no more than six cubic feet in volume and “collocated” atop an existing utility or light pole or a new similarly styled support structure.  Basically, a municipality cannot regulate the installation or placement of small wireless facilities in a municipal right-of-way that do not exceed 10 feet in additional height on an existing pole or that do not exceed 45 feet in height for any new support structure.  As such, small wireless facilities are permitted uses and not subject to zoning review or approval if they are collocated in the right-of-way in any zoning district or outside of the right-of-way on property zoned exclusively for commercial or industrial use.  Further, a municipality cannot limit the number of wireless carriers installing small wireless facilities in the municipality.

The Act does allow a municipality to require a wireless carrier to submit an application for the installation of small wireless facilities with the municipality issuing a permit.  The application can require submission of certain information for each small wireless facility, including siting and mounting information (with a photograph), specifications and drawings, along with structural integrity analysis, prepared by a structural engineer, and  an installation schedule.  Furthermore, a municipality can propose alternate placements within 100 feet of the requested site to help ensure the integrity of the public right-of-way.  But, it is important to note that the Act provides a specific application review period, and if a municipality does not respond to an application within 30 days after the application is submitted, the application is deemed complete and approved.

Moreover, a municipality can assess a permit fee of up to $650 for the first collocated facility and $350 for each additional facility and up to $1,000 for a facility on a new pole.  Permits are to be issued for a five-year period.  With regard to small wireless facilities on municipal property, the annual permit fee is capped at $200.  However, a municipality cannot collect any permit fees without first adopting either an ordinance or a written fee schedule. Most importantly, a municipality has effectively until August 1, 2018, to adopt this small wireless facility fee schedule, or thereafter a wireless carrier can begin installing small wireless facilities in a municipality’s right-of-way without having to submit an application or pay any permit fees to the municipality.  If a municipality does wait until after August 1, 2018, to adopt an ordinance or permit fee schedule, the municipality will only be able to collect permit fees for any small wireless facilities installed after the municipality does adopt an ordinance or fee schedule.

The Act includes several other important provisions as well.  For instance, a municipality may impose design standards for decorative utility poles or other reasonable stealth, concealment, or aesthetic requirements for small wireless facilities – which may be very significant for certain areas within a municipality where appearance is important, such as a town square or a residential area.  Any ground-mounted equipment associated with the small wireless facility that is not attached to the pole or support structure can also be required to comply with the municipality’s undergrounding requirements or right-of-way permitting  requirements.  Additionally, wireless carriers can be required to meet indemnification and specified insurance requirements before undertaking work to install any small wireless facilities.  Last, municipalities can remove abandoned facilities that have not been operated for a 12-month period.  But, similar to the permit fees, these additional provisions must be enacted by the municipality through an ordinance in order to be enforceable.

This Act has been a couple years in the making as wireless technology is moving to the next generation 5G wireless technology.  Interesting, the Illinois Legislature established a sunset date of June 1, 2021, for this Act.  As a result, we can expect to see revisions or updates to this Act as we approach the sunset date in 2021.  Nevertheless, municipalities need to take the time to understand this new Act, while timely establishing a permit fee schedule to ensure that a municipality can capture the revenue from issuing permits for these small wireless facilities.

Janus vs. AFSCME: Unions Lose Fair Share and Agency Fees

What must public employers do after Janus?

By Joshua Herman

email: joshua.herman@mhtlaw.com

Janus v. AFSCME, a 5-4 decision by the Supreme Court of the United States (“SCOTUS”) issued June 27, 2018, reversed 40 years of law allowing governments and unions to withhold “fair share” deductions from non-union public employees without their consent to subsidize union activity – regardless of whether the employee agreed with the union, its positions, or the activity.

Following Janus, no public body or union can require or deduct an employee’s “fair share” without his free and voluntary consent.  “Fair share,” also referred to as “agency” or “shop” fees, are the costs and expenses unions claim non-union members owe for the benefit of the union’s services and representation.

Fair share deductions were previously lawful pursuant to the Supreme Court’s 1977 decision, Abood v. Detroit Bd. Of Ed. In Abood, fair share deductions (referred to then as “agency fees”) were allowed because they helped to obtain and maintain “labor peace” and avoided “free riders.”  However, Janus held that fair share unnecessarily infringes on First Amendment rights of non-union employees.

Contradicting the “free rider” argument, the plaintiff argued that he was not getting a free ride” on a bus headed somewhere he wanted to go; instead, he was being “shanghaied for an unwanted voyage.” Thus, even assuming the union secures non-union members valuable benefits, Janus opined that this is no different than other private speech that often benefits non-speakers; however, that benefit does not allow the government to require non-speakers pay for such speech.

The true benefits and costs from this decision will not be clear for years to come. As the majority stated “[i]t is hard to estimate how many billions of dollars have been taken from non-members and transferred to public sector unions in violation of the First Amendment.” However, such a “victory” comes at a cost because, as the Janus dissent notes, this decision “undoes bargains reached all over the country.” Twenty states have statutory schemes allowing or mandating fair share and it is a substantive portion of “thousands of current contracts covering millions of workers” requiring affected parties across the country to begin negotiating anew.

Next steps:  What must Public Employers do after Janus?

By its terms, the Court’s decision in Janus took effect immediately, requiring that parties should prepare for the fall out. After Janus, governments, school districts and other public bodies must take immediate action to comply with the new law and continue to meet their obligations under the existing labor law.

Stop Non-consensual Deductions. Public employers should immediately review all employees for whom they make deductions – whether for union dues or fair share – and immediately cease any such deduction that is not supported by the employee’s written consent to such deduction.

Union Dues from Union Employees. Most unions provide forms their members sign to consent to the deduction of union dues and fees. Employers should immediately notify the union of those union members who have not provided written consent and that, if unresolved, the employer may be unable to make any further deduction until a consent is provided.

Notice to Union. Public employers should immediately notify any applicable union that they intend to comply with the decision and, effective immediately, will no longer be deducting any fees from employees who have not provided a signed, written consent to such a deduction.

Duty to Bargain. Despite the Supreme Court’s decision, public employers must still comply with their duty to bargain. If unions reach out to a public employer, the employer should agree to meet and hear their concerns. However, public employers have no obligation to agree to any accommodations or provisions other than those required by law, and the Janus decision imposes no greater obligation.

Memorandum of Understanding. A public employer should not wait until it has a signed memorandum of understanding before proceeding as outlined above. However, offering to enter into such an agreement with the union can help labor relations. We have prepared a draft template that can be used for this purpose. Employers wishing to pursue this course of action should consult legal counsel.

Duty of Fair Representation / Bargaining with Individual Non-union Employees. The Janus decision does not change the union’s duty of fair representation to non-union members (although non-union members may have to begin paying for certain services such as representation in the disciplinary process), nor does it alter the status of the union as all employees’ exclusive bargaining representative. Therefore, public employers are still prohibited from bargaining with non-union employees who are covered under any applicable bargaining agreement.

FOIA following Janus. Some public sector unions have also taken steps to limit bargaining and labor information available to the public, reaching out to public bodies ahead of Janus to request that FOIA requests for information related to union membership, dues, and fair share fees be withheld on the basis that such information is private or personal. Such requests appear to exceed FOIA’s exceptions; consequently, public bodies should continue to exercise their own scrutiny and judgment in responding to FOIA requests that may relate to such information.

Consult counsel: Janus has created new issues in collective bargaining. For further guidance, public bodies should consult their attorney.  

(Janus v. American Federation of State, County, and Municipal Employees, Council 31, Case No. 16-1466, decided June 27, 2018).

Image of cannabis leaves

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

Illinois lawmakers pass Ashley’s Law to allow students to use medical marijuana on school grounds.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On May 17, 2018, the Illinois Senate overwhelmingly passed House Bill 4870 (HB 4870) which, if signed by Governor Rauner, will allow students with a valid prescription for medical marijuana to administer, consume or use it on school grounds and on school buses.

HB 4870, which has been named “Ashley’s Law,” was initiated by the parents of a 12-year old student who, after exhausting all traditional medications, was prescribed medical marijuana to treat epileptic seizures caused by treatments for leukemia.  In January 2018, Ashley’s parents filed suit in federal court against the State of Illinois and Schaumburg School District No. 54, alleging that state laws and school policies prohibiting qualifying students from possessing, using, or consuming medical marijuana on school grounds and school buses failed to accommodate students with disabilities in violation of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).

While HB 4870 provides families and school districts some relief to accommodate students with disabilities, Ashley’s Law does not provide the wide-sweeping relief many would like to believe.

The Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) currently allows qualifying patients under the age of 18, with the consent of a parent or guardian, to receive a registry identification card from the Illinois Department of Public Health in order to obtain a prescription of medical cannabis, commonly referred to as medical marijuana.  However, minors are prohibited from consuming medical marijuana in any form other than medical marijuana-infused consumable products.  In other words, qualifying patients under 18 years of age cannot smoke medical marijuana, but instead are limited to using marijuana in the form of edible or topical products.  While the Act does allow qualifying patients under 18 to use medical marijuana generally, it currently prohibits the possession and consumption of any form of medical marijuana on a school bus and on the grounds of any preschool, primary school, or secondary school.  If a student has a disability that qualifies for the issuance of a registry identification card and medical marijuana prescription, the same disability will more than likely qualify the student for an IEP or 504 plan.

Ashley’s Law amends the Act and the Illinois School Code to allow the possession and consumption of medical marijuana on a school bus and on the grounds of any school district, public school, charter school, or non-public school.  More specifically, the law  adds a new Section 22-23 to the Illinois School Code, requiring schools to authorize a parent, guardian, or designated caregiver to administer a medical marijuana-infused product to a student on school grounds or a school bus as long as the student (as a registered qualifying patient) and the parent, guardian or designated caregiver (as a registered designated caregiver) have been issued a registry identification card by the State of Illinois.  After administration, the parent, guardian, or designated caregiver must remove the marijuana product from school grounds or the school bus.

School districts dealing with medical marijuana

If passed, Ashley’s Law will require schools to allow the administration of medical marijuana to students on school grounds; however, it also provides schools with two broad exceptions.  First, a school can prohibit the parent, guardian, or designated caregiver from administering the medical marijuana to the student in any manner that would create a disruption to the educational environment or cause exposure of the product to other students.  Ashley’s Law does not define what constitutes a “disruption to the educational environment” or “exposure,” and without further guidance would appear to grant the school district substantial discretion.

Second, a school district can prohibit the administration of medical marijuana if it would cause the district to lose federal funding.  Federal law still lists marijuana as a Schedule 1 drug, making it illegal to grow or use any marijuana product, including medical marijuana (even if it is authorized by Illinois law).  Therefore, if a school district receives any form of federal funding that is contingent upon compliance with federal law, it could be at risk for having those funds withheld by the federal agency that administers the funding.

Ashley’s Law permits the administration of medical marijuana to a student in the education setting rather than forcing the removal of a student from school in order to provide appropriate care.  At the same time, Ashley’s Law also ensures that school districts will not be prosecuted by the State of Illinois for allowing qualifying students to use medical marijuana on school grounds.  However, Ashley’s Law does not authorize any medical marijuana to be kept on school grounds as it does other student medications.  Nor does Ashley’s Law require school personnel, including school nurses, to administer medical marijuana to students as it does with other student medications.  Finally, Ashley’s Law does not provide school districts with any protection against an action by the federal government related to the use of medical marijuana on school grounds or school buses.  While several other states have passed laws similar to Ashley’s Law, it is not yet clear how the federal government intends to treat such laws.

Next steps

Ashley’s Law was sent to the Governor’s desk on June 15th and is currently awaiting his signature.  If signed, Ashley’s Law will take effect immediately.  If the Governor takes no action on the bill, it will take effect 60 days after it was sent to him for signature.  If passed into law, school districts will be required to adopt a policy implementing Ashley’s Law.  School districts are encouraged to contact legal counsel to discuss the impact of Ashley’s Law and formulate a policy regarding the use of medical marijuana by qualifying students on school buses and school grounds.

Additionally, to avoid any disruption or exposure to other students, the procedure and manner of administering medical marijuana to a particular student should be discussed by the school district, the parents, and the IEP Team or 504 Team as applicable.  Such procedures should be included in the student’s IEP or 504 plan prior to the administration of medical marijuana at the school.

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.