Category: Local Government and Public Finance

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.

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).

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.

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.