Our Village has a resident that files FOIA requests once per week and the work to produce the documents has begun to take more and more of staff's time. Is it ever okay not to respond to a FOIA request?
A: No. Surprisingly, the most common formal opinion issued by the Public Access Counselor is that a public body violates FOIA by ignoring a request (as well as the PAC's request for review!). The most recent formal opinion, Public Access Opinion 18-011, was released September 10, 2018.
One of our employees requires intermittent 15 minute breaks under FMLA. Are we required to compensate that employee for the time spent on those breaks?
A: Under the Fair Labor Standards Act, short employee breaks of less than 20 minutes are generally compensable time. However, a
conflict arises when an employee must legitimately and lawfully take such frequent breaks, each of less than 20 minutes, that it
substantially affects productivity. The Department of Labor recently helped us clarify how to resolve that conflict. In a recent
opinion letter, the DOL noted that FLSA regulations and case law generally find that short rest breaks for employees "promote the
efficiency of an employee" and therefore are compensable because that primarily benefits the employer. On the other hand, breaks
provided pursuant to FMLA are for the primary benefit of the employee. Therefore, the DOL concluded in its Opinion Letter, an
employee's breaks pursuant to FMLA (as intermittent leave) are not compensable breaks under the FLSA, because they are provided for
the primary benefit of the employee only.
Can a home rule municipality adopt an ordinance that exempts certain records from public inspection, even though those same records may be subject to public inspection under FOIA?
No, even home rule municipalities cannot create additional restrictions on public access to information that conflict with FOIA. According to a recent Appellate Court case, while home rule units have the power to expand the duty to disclose records, they lack the authority to exempt from disclosure documents and information for which FOIA mandates disclosure.Close
Are records that show which employees of a public body received raises and bonuses subject to release under FOIA?
Yes, the PAC has ruled that the names and titles of employees who received raises and bonuses, and the amount of such raises and bonuses, are not exempt from release under FOIA. A public body argued that this information was “private information” under Section 7(1)(b) of FOIA, and that its release would constitute an invasion of privacy under Section 7(1)(c) of FOIA. The public body argued that this information could be used to harass employees. However, the PAC held that records relating to the compensation of public employees are public records subject to release. Further, the PAC found that even if public employees have an expectation of privacy in the amount of compensation they receive, that expectation does not outweigh the public’s legitimate interest in knowing how public funds are expended.Close
In a village with a president and six trustees, how many votes are required to approve an annexation agreement?
Under Section 11-15.1-3 of the Municipal Code, annexation agreements must be approved by a vote of two-thirds of the corporate authorities then holding office. In a village with a president and six trustees, 5 votes are required to approve an annexation agreement. Since Section 11-15.1-3 requires a supermajority vote of the corporate authorities, the village president is entitled to vote on annexation agreements.Close
Can a unit of local government pass a policy limiting public comment to residents only?
According to a recent PAC opinion, public bodies may not restrict public comment to residents only, as Section 2.06(g) of the Open Meetings Act provides that “any person” shall be permitted an opportunity to address public officials under the rules established by the public body.Close
I have received more than 15 FOIA requests over the past 30 days from a local newspaper. Can I classify the newspaper as a “recurrent requester” so that I will have more time to respond to these FOIA requests?
No, members of the “news media” such as newspapers are generally exempt
from the “recurrent requester” provisions of FOIA. As long as the
principal purpose of the newspaper’s FOIA requests are (1) to access and
disseminate information concerning news and current or passing events; or (2)
for articles of opinion or features of interest to the public; or (3) for the
purpose of academic, scientific, or public research or education, then the
newspaper may not be classified as a “recurrent requester” under FOIA.
Can a member of a municipality’s zoning board of appeals be appointed for a term that extends beyond the term of the current mayor/village president?
Yes, members of a zoning board of appeals are appointed for 5 year terms under Section 11-13-3(c) of the Municipal Code. As mayors/village presidents are elected to 4 year terms, zoning board members are appointed for terms that will necessarily extend beyond the mayor’s term of office. As a general rule, appointed officers’ terms cannot extend past the term of the current mayor/village president; however, this is one of the exceptions under Section 3.1-30-5(c) of the Municipal Code, which prohibits an appointed officer’s term of office from extending beyond the mayor’s term “except as otherwise expressly provided” in the Municipal Code.Close
Do newly elected officials have to complete Open Meetings Act training?
Yes, all newly elected officials are required to complete an electronic training curriculum on the Open Meetings Act within 90 days of taking the oath of office or assuming their duties as a member of a public body. The training curriculum was developed by the Public Access Counselor of the Illinois Attorney General’s office, and can be accessed on the Public Access Counselor’s website using this link. After completing the training, the newly elected official must file a copy of the certificate of completion with the public body. Newly appointed officers who serve on commissions and boards such as the Zoning Board of Appeals, Plan Commission, etc., also need to complete the training.Close
Must a public body grant a fee waiver or reduction under FOIA if a requester asks for one?
No, according to a recent advisory opinion issued by the Public Access Counselor of the Attorney General's office. See 2017 PAC 47258. In the opinion, the PAC stated that the plain language of section 6(c) of FOIA does not mandate that a public body grant a fee waiver; instead FOIA provides a public body the discretion to decide whether it will waive or reduce copying fees. You can access the opinion and read more about the case on Ancel Glink's Municipal Minute blog here.Close
Can a municipality ban campaign signs on property owned by the municipality, such as at city hall?
As a general rule, Illinois municipalities can prohibit campaign and other signage from being placed on municipal property. However, Section 17-29 of the Illinois Election Code does allow campaign signs to be placed on government property that is being used as a polling place on election day, and also during early voting periods, so long as these signs are located outside of the campaign free zone, as defined by state statute.Close
What happens if the agenda for an upcoming board meeting was not posted online in advance of the meeting, but was posted at the local government's principal office?
Under the Open Meetings Act, a public body that has a website that is maintained by full-time staff must post all meeting notices and agendas on the public body's website. The website posting requirement is in addition to posting notices and agendas at the public body's principal office or the meeting place if different than the principal office. However, if a public body fails to post a notice or the agenda of a meeting on its website, that failure will not invalidate any meeting or actions taken at that meeting so long as the public body had properly posted the notice or agenda at the principal office or the meeting place, as the case may be.Close
Can a unit of local government reimburse an elected official or employee for entertainment expenses incurred while at a conference?
No. The Local Government Travel Expense Control Act prohibits local governments (except home rule units) from reimbursing any official or employee for any entertainment expense unless the entertainment is ancillary to the purpose of the program or event. "Entertainment" is defined to include shows, amusements, theaters, circuses, sporting events, or any other place of public or private amusementClose
Can we require residents to remove election signs from their yards 7 days after the election?
No. State law restricts the ability of municipalities to impose time restrictions on the display of political signs on residential propertyClose
Must every ordinance have a first and second reading before being passed?
No, there is no statutory requirement for two readings of an ordinance. However, some communities have adopted a local rule requiring a first and second reading of an ordinance before it can be approved, so you should consult your local ordinances or code.Close
As an elected official of a public body, am I entitled to access closed session recordings and minutes of the public body?
Pursuant to a recent change in the law, the answer is yes. Public Act 99-0515 amends the Open Meetings Act to provide access to closed session "verbatim recordings" and closed session meeting minutes by elected officials, subject to the following restrictions:
1. Access to the closed session minutes or verbatim recordings is limited to the main office or official storage location.
2. Access must be in the presence of a records secretary, administrative official of the public body, or any elected official of the public body.
3. No verbatim recording may be recorded or removed from the main office or official storage location except by vote of the public body or by court order.
4. The Public Access Counselor's access is not restricted by the new law.
The law does not provide public access to these closed session records, which remain confidential unless or until the public body votes to release them to the public.
What is the difference between nonpartisan and independent candidates for office in local elections?
An independent candidate is one seeking elective office in a partisan election, but the candidate is not affiliated with any political party. Independent candidates appear on ballots only in partisan general elections. They do not participate in primaries or caucuses that precede a general election. A nonpartisan candidate, on the other hand, runs for office only in elections that are required by law to be nonpartisan. In a nonpartisan election, political party designations are expressly prohibited from appearing on the ballot.
Both independent and nonpartisan candidates are allowed to receive campaign contributions from political parties, and may even identify themselves on campaign literature as affiliated with a particular party. However, they are prohibited from stating any party affiliation in their nomination papers. Also, all candidates in nonpartisan elections must appear on the ballot without any party label.
Does a public body have to provide copies of records in response to a FOIA request if those records are posted on its website?
No. If the requested records are available on the public body’s website, the FOIA officer can direct the requester to the website to access the records. There is one exception, however. If the requester is unable to reasonably access the record after being directed to the website, then the requester can resubmit the request to the FOIA officer with a statement as to his or her inability to access the record. In that case, the FOIA officer is required to make the record available for inspection or copying as otherwise required by FOIA.Close
Who appoints the deputy clerk - the village clerk, mayor, or village board?
State statute addresses the appointment of deputy clerks in 65 ILCS 5/3.1-30-10. That statute says that the municipal clerk has the authority to appoint one or more deputy clerks to assist the clerk, "when authorized by the corporate authorities." That authorization, if it exists, can usually be found in the municipality's code of ordinances. The corporate authorities can also limit the number of deputy clerks that the clerk is authorized to appoint.Close
Can a unit of local government reimburse an elected official or employee for entertainment expenses incurred while at a conference?
No. The Local Government Travel Expense Control Act prohibits local governments (except home rule units) from reimbursing any official or employee for any entertainment expense unless the entertainment is ancillary to the purpose of the program or event. "Entertainment" is defined to include shows, amusements, theaters, circuses, sporting events, or any other place of public or private amusement.Close
Can we limit the total time for public comment at our city council meetings to 30 minutes, and each commenter to 3 minutes?
Yes, so long as the city council has adopted rules for public comment. In a number of advisory opinions, the Public Access Counselor of the Attorney General's Office upheld similar time limitations on public comment. The PAC cautioned, however, that in order to restrict public comment in any way, the public body must have approved public comment rules. Having a long-standing practice of limiting the time frame for public comment is not sufficient to satisfy the requirement of approved rules, according to the PAC. So, if your public body has routinely placed restrictions on public comment (time limits, sign-ins, etc), it should adopt rules for public comment to incorporate those practices.Close
Can a city council or village board require an individual to register 5 days in advance of a meeting to speak during public comment?
No, according to a binding opinion of the Public Access Counselor of the Illinois Attorney General's office (PAC). See PAC Op. 14-012 (Sept. 30, 2014). Although the PAC acknowledged that the Open Meetings Act allows a public body to adopt rules governing public comment, it found a five day advance registration rule unreasonable because it "does not take into account the fact that the public has a statutory right to address the Board." The PAC determined that the advance sign-up requirement "imposed substantial obstacles for those who wish to speak at the Board's meetings," particularly because the OMA does not require a public body to post agendas until 48 hours before a meeting.Close
Can a public body begin its meetings with a religious prayer?
Yes, but with limits. The United States Supreme Court has decided many cases on this subject but its decisions do not give clear guidance. If a public body wishes to include a prayer as part of its meeting, here are a few guidelines to follow so as to avoid conflicts with the First Amendment.
- Seek out clergy from a variety of denominations and faith traditions to lead the prayer.
- Include a statement at the top of the printed agenda which says that says that the government body "does not endorse religious faith. The prayer is intended to lend solemnity to the public meeting and invite an attitude of respect and consideration."
- Request the cleric to speak in nonsectarian terms, not referring to any specific denomination or creed, nor advocating particular beliefs, emphasizing the purpose of the prayer as stated on the agenda. If the cleric does not abide by this request, don't invite him/her back.
- Do not provide compensation to the cleric from public funds
- Conduct the prayer before the roll call which begins the official meeting. Typically the Pledge of Allegiance is recited before the roll call; this would be the best moment for the prayer.
By: Paul KellerClose
Are school districts subject to local zoning?
Yes. The Illinois Supreme Court recently issued a ruling that made it clear that school districts are not exempt from local zoning regulations. In that case, a school district had installed bleachers at the high school football field that did not comply with the city's height and setback regulations. The school district argued that it was exempt from local zoning. The court disagreed, finding that although schools are exempt from local building codes, they are not exempt from zoning regulations and must, like other property owners, follow zoning regulations and procedures.
Can the village trustees, by a 2/3 vote, fire the village president?
No, the village trustees cannot remove an elected village president from office. Village presidents (mayors) are elected by the residents of the village or city to serve their term of office. There is no statutory provision that authorizes village trustees (or aldermen) to take a vote to fire or otherwise remove an elected village president (mayor) from office.Close
A board has determined that closed session meeting minutes do not need to remain confidential any longer and wants to approve their release to the public. Must the board also release the tape recordings for those closed session meetings to the public?
No, the board can approve the release of closed session minutes without releasing the closed session tape recordings to the public. Section 2.06 of the Open Meetings Act requires a public body to record its closed session meetings in the form of an audio or video recording. The OMA states that these "verbatim recordings" are not open for public inspection, except in an action to enforce an alleged violation of the OMA. These recordings can be approved for destruction not less than 18 months after the meeting, so long as the public body has approved the closed session meeting minutes.Close
In a village where the treasurer is an appointed office, must the appointed village treasurer be a village resident?
No. State statute generally requires appointed municipal officers to be "qualified electors" of the municipality. 65 ILCS 5/3.1-10-6. However, there are a number of exemptions. Specifically, the statute states that the residency requirements do not apply to "municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge, to appointed village treasurers, to appointed village clerks, or to appointed city or village collectors (unless the city or village has designated by ordinance that the city or village clerk shall also hold the office of collector)." Consequently, an appointed village treasurer does not need to be a village resident.Close
Can a village clerk and village manager attend the closed sessions of the village board?
As a general rule, the corporate authorities (in this case the village board) decide who can attend closed session. Village employees can (and often do) attend closed session - it is very common, for example, for the village administrator or manager (in communities that have a manager/administrator) to attend all closed sessions. Certainly, the village clerk should be present for closed session as the clerk is responsible for taking the minutes. However, there may be occasions where the village board will ask the clerk or other employee to step out of closed session when the topic of closed session specifically relates to that employee. For example, if the clerk is suing the village, then the clerk should be asked to leave closed session when the board discusses the clerk's lawsuit. Similarly, if the board is discussing a disciplinary issue involving the clerk or manager, it would be appropriate for the board to ask the clerk or manager, as the case may be, to step out of closed session.Close
Our city council meetings are held on Tuesday evenings at 6:00 p.m. Is the deadline for posting the notice on the Sunday before the meeting or must we post it by Friday at 6:00 p.m. since Saturday and Sunday are not business days? Also, if Monday is a holiday, does that mean we need to post the notice on the Thursday before the meeting?
The Open Meetings Act requires a public body to post an agenda and notice of a meeting at least 48 hours before the meeting. So, if a public body meets on Tuesdays at 6:00 p.m., then the notice/agenda must be posted no later than 6:00 p.m. on the Sunday before the meeting, which is 48 hours prior to the meeting. Because the Act references hours, and not "days" or "business days," you do not skip over the weekend or any holiday in calculating the time period. A local public body could impose on itself a more restrictive deadline for posting agendas, but that is not statutorily required - the statutory deadline for posting the notice/agenda is 48 hours before the meeting.Close
Can the majority of a quorum of a governmental body attend a conference without violating the Open Meetings Act?
Yes. So long as they do not meet as a group and discuss public business.Close
In a municipality, how are ordinances published in pamphlet form?
Illinois law requires certain ordinances, principally those that contain a penalty or make an appropriation, to be published before they take effect. The statutes allow the publication to take place either in a newspaper or in pamphlet form. Pamphlet form involves placing a cover sheet on top of the adopted ordinance. The cover sheet contains the number and title of the ordinance, its date of passage and the statement that the publication is "by authority of the corporate authorities." Many municipalities take pamphlets which are published in pamphlet form and post them. State law actually requires the posting of ordinances to take place only in municipalities with a population of less than 500, where there is no newspaper published. The pamphlet form requirement is met if the pamphlet form is adequately carried out if the ordinance has a cover page added to it indicating its title and date of passage, and that pamphlet is available at the principal office of the governmental body and can be viewed and copies of the pamphlet purchased.
What do I need to do to comply with the new law that requires us to post elected officials' email addresses on our website?
Last year, the Illinois General Assembly enacted P.A. 98-0930 amending the Local Records Act. The new law requires all local governments and school districts to post on their websites a mechanism for members of the public to electronically communicate with elected officials. To comply with the Act, a public body can post either a "uniform single email address" or the individual email addresses of the elected officials. A "hyperlink" to the email address or addresses must be posted on the home page of the government body's website. The law becomes effective January 1, 2015, but governments have 90 days to comply with the email posting requirement.
Must a public body allow public comment at every meeting, including committee meetings?
Yes, according to the Public Access Counselor in the Attorney General’s Office. In a number of recent opinions, the Public Access Counselor interpreted the Open Meetings Act to require every public body to provide an opportunity for public comment at every meeting open to the public. That includes all meetings of the corporate authorities (i.e., city councils, village boards, park boards, township boards, etc.), all committees of those councils and boards, plan commissions, zoning boards, electoral boards, and any other government board, commission, or body that falls within the definition of a “public body” under the Open Meetings Act. The public comment requirement applies to both regular and special meetings, according to the PAC.
The Village recently hired a Village Administrator. The Administrator has taken over many of the duties of the Mayor. Can we reduce the salary of the Mayor to reflect these reduced responsibilities?
Under state law, the salary of an elected official cannot be increased or reduced during the term of office of that elected official. Any change in compensation of the Mayor must be approved by the Village Board at least 180 days before the beginning of the term of office for the Mayor. 50 ILCS 145/2. So, while you cannot approve a reduced salary during the current Mayor’s term of office, you could approve a change in the Mayor’s compensation within the time-frame required by state law that would then take effect when the Mayor is sworn in for his or her next term or a new mayor takes office.Close
The mayor and city council are being intensely lobbied by a neighborhood association to install a stop sign at the intersection of two quiet residential streets. The association claims that it is difficult to cross the street and that this is a dangerous condition that the city must rectify immediately. To appease the association, can the council simply direct the public works director to install the sign?
Although the city council may pass an ordinance authorizing a stop sign to be installed, the National Uniform Manual on Traffic Control Devices requires that the ordinance be supported by an engineering study or an engineer's professional judgment. Cities that fail to demonstrate the appropriate engineering support for stop signs may waive their immunity under the Illinois Tort Immunity Act. See Snyder v. Curran Township, 167 Ill. 2d 466, 472 (Ill. 1995). Accordingly, the city should act to install the sign only after establishing proper engineering support.Close
A property owner has allowed a large buckthorn tree to overtake his front yard. The thorn-covered branches are overhanging the sidewalk and partially obscuring site lines from the street. Can the city manager have the tree removed?
Because the tree is located on private property, the city manager cannot remove the tree in its entirety without obtaining a court order to authorize the city to enter private property to remove the tree. The city can, however, trim the branches overhanging the public right of way - including the branches overhanging the sidewalk - if the tree inconveniences the public's use of the right of way, obstructs the street, or damages the street. In this case, the tree clearly obstructs the street and inconveniences the public's use of the street, so the city manager can have the tree trimmed.Close
If a trustee moves out of the village, even temporarily, what are the guidelines for the trustee’s participation in board meetings?
As a general rule, a temporary absence from a municipality will not affect a trustee’s residency status if the trustee intends to return to the municipality and maintain permanent residency in that municipality. For example, a trustee who is temporarily working in another city may retain his or her residency and continue service on the board during the temporary absence. The trustee may also be able to attend board meetings electronically during his or her absence, so long as the village has adopted rules to authorize electronic participation and the reason for the trustee’s absence falls within one of the statutory standards.Close
A former village employee is now an elected alderman. He still has a workers' compensation case pending against the City. Is he entitled to receive any reports from defense counsel and/or sit in on executive session when his case is discussed?
No. It is ongoing litigation, and pursuant to attorney/client privilege, he is not entitled to look at any defense reports nor listen to any discussions regarding ongoing litigation involving his case. He should step out of executive session for the time that his case is being discussed.Close
Are there prohibitions on elected and appointed officials and city employees accepting free items from vendors doing business with the city, such as tickets to ball games and events, fishing/hunting trips, use of condos during events/trips, etc.?
Yes, Article 10 of the State Officials and Employees Ethics Act, 5 ILCS 430/10 et seq., regulates the solicitation and acceptance of gifts by government officers and employees. As a general rule, it is against the law for an elected or appointed official or a government employee to accept a gift from a "prohibited source," which would include a vendor that does business with the city. The Act does contain a number of exceptions to the gift ban, including, for example, restaurant meals or refreshments that do not exceed $75 in value in a single day, political contributions, and gifts from one prohibited source during a calendar year that have a cumulative value of less than $100, among others. An officer or employee can avoid violation of the Act by returning the prohibited gift to the prohibited source or giving the gift (or its equivalent) to charity. Because violations of the Act can result in criminal penalties, officials and employees should consult with their municipal attorney if they have any questions about whether acceptance of a particular gift would violate the Act. They should also review their local ethics code because some municipalities have enacted gift ban restrictions that are stricter than state law.Close
My village owns some commercial property that is currently of no use to us. The mayor wants to rent the property to a local business owner, but the trustees are divided as to how they would vote on the issue. Can we lease village-owned real estate to a private person or business without having to pass an ordinance?
Yes, but only for lease terms of two years or shorter.The Illinois Municipal Code requires an ordinance approved by a three-fourths vote of the corporate authorities in order to lease municipal-owned real estate to third parties for terms that are longer than two years and not exceeding 99 years. However, that statute has an exception for leases of two years or less: "[T]he corporate authorities have the power to authorize any municipal officer to make leases for terms not exceeding 2 years in such manner as they may determine." 65 ILCS 5/11-76-1. (There are a few kinds of property to which this law does not apply, so consult with your village attorney before taking any action pursuant to this statute.)Close
A municipality wants to move forward with developing a new public park. Without considering other firms, the mayor wants the municipality to enter into a contract with an architecture firm he recently met at a golf outing to do the design development for the project. This firm has never before done work for the municipality. Can the municipality do this?
Probably not. A non-home rule municipality is required to comply with the formal selection process required by the Local Government Professional Services Act, 50 ILCS 510/1 et seq., in selecting an architect for the project. If, however, an architecture firm has a satisfactory relationship with the municipality (for example, it had done prior acceptable work for the municipality), then the formal selection process could be avoided under an exception in the statute. That exception also applies to a municipality’s ongoing relationship with an engineer or land surveyor.Close
A city council consisting of six Aldermen and the Mayor hold a special meeting to adopt an ordinance authorizing residents to raise chickens in their backyards. Five of the Aldermen were present at that meeting. The sixth Alderman, who was not present, is a vegan and wants the issue to be reconsidered. He requests a special meeting to reconsider the ordinance. Four Aldermen and the Mayor attend the special meeting and vote to rescind the ordinance. Is the vote to rescind effective?
No, under Section 3.1-40-55 of the Illinois Municipal Code, no vote of a city council may be rescinded at a special meeting unless at least as many Aldermen were present at the special meeting as were present when the original vote was taken.Close
Can trustees of a village board schedule a special meeting to conduct public business and exclude the mayor (who doesn’t vote anyway) so long as a quorum of the village board is in attendance at that special meeting?
No. On a 7-member village board, 3 trustees have the authority to schedule a special meeting, and 4 trustees constitute a quorum for purposes of transacting public business. However, a village board consists of the 6 trustees and the mayor. Therefore, the trustees must invite all 7 members of the village board and permit all 7 members to attend the special meeting.
Can a municipality remove negative comments on a municipal Facebook page?
Comments on social media could be considered protected speech under the First Amendment. For example, a commenter who posts that he or she disagrees with a particular municipal policy is likely to be protected speech, just as if the commenter had made the same statement at a public meeting. However, not all comments on the municipal Facebook page would be similarly protected. Municipalities can adopt social media comment policies that ban postings that include advertising, outside links, threats or personal attacks, profanity, or hate speech, and provide that any posts that violate the social media policy will be removed. If there are any questions about removal of a particular comment, a municipality should consult with its attorney.Close
Can local governmental bodies use FOIA in seeking information from other governmental bodies?
Yes. In a recently-decided case in the Appellate Court for the Fourth District, Roxana Community Unit School District v. The Environmental Protection Agency, The Pollution Control Board and the Department of Revenue, the Appellate Court reversed and returned to the Trial Court a case in which penalties will likely be sought and received for clear violations of the Open Meetings Act. In this case, six governmental bodies, under FOIA, sought information from the Illinois Environmental Protection Agency about applications that a refinery company had filed seeking reductions in real estate assessed value for pollution control facilities. The requesting governments wanted to appear before the Pollution Control Board to likely contest the real estate tax breaks. The Court found that the IEPA took more than the statutory period of time to reply and overruled its argument that the matter had become moot because it had made its recommendation. The Court also found that the Pollution Control Board held an improper closed hearing on a matter that needed to be decided in public, and improperly refused to allow the governmental bodies to make any oral presentations.Close
Our municipality published a notice of a hearing before the Plan Commission of a proposed site plan change for property where we listed the legal description and told exactly when and where the hearing would take place. A change in the zoning district was also requested. Some citizens have argued that we did not properly list the change in zoning categories requested or give the address of the property.
If, as here, a change in zoning category was requested, then merely stating that there was a proposed site plan change would not be sufficient. In this case, there is a request both for a zoning district change and a site plan change. The zoning district change must be mentioned in the public notice. State law also requires that public notices describe the property by (1) common street address and the parcel identification number (PIN) or (2) the legal description.Close
Can an independent candidate in a municipal election be barred from the ballot because the candidate's petitions contained too many signatures?
No. The election code regarding municipal elections provides that independent candidates are to file petitions with the signatures of a minimum of 5% and a maximum of 8% of those who voted at the last regular election in the district. In 1980, the Federal Appeals Court in a case called Richards v. Lavelle, stated that it was unconstitutional to bar a candidate simply because he or she submitted more than the maximum number of signatures. The Court suggested, however, that there may be aspects of the statutory restriction which could be rationally applied. In a recent Appellate Court opinion, arising out of petitions filed for the office of the Mayor of the City of Calumet City, the Appellate Court found such a distinction. In that case, the maximum number of signatures that an independent candidate for Mayor could file were 410. Candidate Wilson filed 522 signatures. Objections were filed to his nominating petitions claiming that many of them were invalid. The minimum number of signatures necessary to place someone on the ballot was 257. The Trial Court dealt with this issue by evaluating the first 410 signatures and refusing to consider the improperly filed surplus of 112 names. Based upon the first 410 signatures, the Board found Wilson had just 107 valid signatures--well short of the minimum number of 257 required. The Illinois Appellate Court, in Wilson v. Municipal Officers Electoral Board, 2013 Ill.App. (1st) 130957, decided June 5, 2013, affirmed this determination. The law in Illinois regarding improperly-filed excess signatures for independent candidates for municipal offices is now clarified to mean that the candidate will not be taken off the ballot for filing extra signatures, but the signatures will not be considered in evaluating the validity of the effort at running for office.Close
Can a governmental body allow consultants or outsiders to attend closed session meetings?
Yes. If a closed session meeting is properly called, the body calling the meeting has broad discretion on whether it will permit certain individuals to attend that meeting. The governmental body may well require the attendance of experts such as lawyers, engineers or accountants to assist it in reaching a decision on strategy for litigation. It can also hear from individuals who have factual data to give to the governmental body. Everything depends on whether the meeting is properly called for an acceptable reason found in the Open Meetings Act. What a governmental body is not allowed to do is to go into closed decision with, for example, someone with whom it is litigating for the purpose of trying to reach a settlement. In that case, only the public would be barred from learning what is going on. Since governments can meet in closed session to discuss the employment, performance or dismissal of particular officers or employees, they can meet with those whose lives are affected by that decision, including the specific employee or officer in an effort to reach an agreement. The same cannot be said, for example, with bringing a Developer who is suing the municipality into a closed session with the full Board to "try to work out their differences."Close
Can an official, at a subsequent meeting, withdraw a vote previously made?
Votes cannot be a "withdrawn." Under the rules of most governmental bodies, a person who voted with the majority on a particular matter is generally allowed to make a motion to reconsider the matter either at the same meeting or at the next meeting. The motion must be made from a person whose vote prevailed and who later changed his or her mind. The motion can be seconded by any member of the Board or Council. If the motion to reconsider passes, then the matter is before the governmental body once again and can be acted upon and even amended. If an official later realizes that he or she miscast a vote and, for example, the change of one vote would not change the result, that official can ask that there be included in the record of a later meeting a statement that he or she previously miscast a vote, but that will not result in the tally at the previously meeting being changed.Close
Is any property owned by a governmental body subject to real estate taxes?
The rules regarding the exemption of governmental-owned or used property vary from government to government. The system is fairly complicated and technical, but in no case does the property become automatically exempt. Governmental bodies should keep a careful roster of all governmental-owned or used property, and consult with a knowledgeable attorney to determine whether all of the property is or can become exempt. The property becomes exempt from real estate taxes based upon an application from the governmental body. Once exempt, governments are required to notify County officials annually of the status of that property. In many cases, property owned by a governmental body, but leased to non-exempt parties, causes a real estate tax bill to go to the tenant. Governments are required to file copies of such leases with the County. In some cases, arrangements between a government and a licensee may not subject that occupant of the premises to real estate taxes.
When can a governmental body go into closed session to discuss litigation?
Governmental bodies can go into closed session to discuss pending litigation. The nature of that litigation should be put in the record at the beginning of the closed session. If the governmental body is going into closed session to discuss threatened or imminent litigation, the meeting must begin with a statement as to why the dispute is truly a subject that can be categorized as probable or imminent litigation. The Attorney General has issued a binding opinion, which may be held to be too narrow in scope if the issue ever reaches an Appellate Court, that seems to limit the discussion to the progress of the litigation itself and strategies. Hopefully, in the proper case, the Attorney General will also appreciate the fact that one aspect of litigation is the way in which a case can or should be settled and government should have the benefit of discussing settlement alternatives in closed session. Clearly, the Attorney General is correct in stating that the mere threat of litigation will not allow a matter principally relating to public policy issues to be shielded in a closed session environment. The Attorney General suggests that a letter from a lawyer rather than just the client threatening litigation may make it clearer that litigation is imminent or probable.Close
Can governmental bodies be fined if contractors doing work for the governmental body fail to pay the prevailing wage?
No. Not if the governmental body has a requirement in its written contract with the company doing the work that it is required to pay the prevailing wage, if applicable. A great deal of work performed for governmental bodies is regulated by a State law that requires contractors to pay the prevailing wage. That wage is established for various areas in the State and for various kinds of labor work. If a contractor, typically one who does not employ union personnel, pays less than the prevailing wage, labor unions and other organizations may use the Freedom of Information Act and other devices to uncover such a violation. The Illinois Department of Labor may then require the contractor to pay the employees back wages to equal the prevailing wage levels and to pay a fine. If the governmental body has done its job of making the requirement "to pay the prevailing wage when it is required by law" in a written contract, it will not be subject to the requirement to pay back wages or made subject to a fine. The contractor alone, who has not carefully followed the law, is the sole "guilty party."Close
How can we enforce our town's time limit on political campaign signs? Every election season, candidates set out their signs weeks ahead of the 45-day period before the election, and then after the election the signs stay up long after the 7-day deadline for taking them down. As a mayor up for re-election, I want to stop my opponent from putting signs up early.
You cannot enforce the 45-day and 7-day limits for campaign signs placed on private residential property. Two years ago the legislature amended the zoning provisions of the Illinois Municipal Code to bar both non-home rule and home rule municipalities from prohibiting "outdoor political campaign signs on residential property during any period of time." 65 ILCS 5/11-13-1(12). Municipalities may set reasonable size restrictions on political campaign signs, but may not limit them to a period right around election time. Note that this statutory provision applies only to private residential property. A municipality may regulate signs on public property to a much greater extent.Close
Can a Committee of the Whole, Finance Committee or other committee of the corporate authorities of a governmental body vote to approve a matter that does not appear on its agenda and to forward it to the Corporate Authorities for final action?
Committees of governmental bodies are themselves treated as public bodies under Section 1.02 of the Open Meetings Act. In a recent request for review in which Ancel Glink represented the FOIA requester, the Office of The Illinois Attorney General concluded that the Committee of the Whole of a municipality, which sent to the City Council a motion to "call for an advisory referendum," did not properly carry out its duties under the Open Meetings Act. In that case, there was no harm done because the main governmental body did not choose to vote on the recommendation and referred it back to the Committee. In any case, governments which utilize a formal Committee system need to produce an agenda which lists action items on which the Committee intends to take formal votes. As with the corporate authorities itself, all matters can be discussed during a committee meeting, but only those matters listed on an agenda, which is made available to the public 48 hours prior to the meeting, except in the case of an emergency meeting), cannot be acted upon if they are not referenced on the agenda.Close
Can a municipality prosecute vehicle drivers for violations of the Illinois Vehicle Code?
Not without written permission from the State's Attorney in the local county. In a recent Appellate Court case, a police officer wrote four tickets under the Illinois Vehicle Code. At trial, the municipal prosecutor, apparently with the oral approval of the local State's Attorney's Office, made a motion to substitute the municipality in place of the "People of the State of Illinois," which was a designation on the tickets as the prosecuting entity. The defendant was convicted and appealed. The Appellate Court reversed the convictions. Although the defect may be considered to be "technical," State law makes it very clear that, if a municipal police officer is to write tickets for violations of the Illinois Vehicle Code, the municipal attorney may only prosecute if written permission to do so is obtained from the State's Attorney. Among other reasons, the Appellate Court pointed out that State charges often carry stronger penalties, and if the charging entity is changed to the municipality, but the violations of State Statutes are not converted to equivalent ordinances charges, it is unclear what penalties are to be applied. This error in procedure is easy to correct and all police officers and local prosecutors should be aware of the newly-stated rule.Close
What must a governmental body do when it wishes to cancel a scheduled meeting or change the date, time or place where it regularly meets?
Governmental bodies can take a public vote to cancel a scheduled meeting. Since no governmental body can meet without a quorum present, a meeting is effectively cancelled if none of the members of the public body, or a number fewer than a quorum, appear at the time and place that a meeting is scheduled. It is, of course, much more efficient and thoughtful to announce ahead of time the cancellation of a meeting. By motion of the public body, an individual meeting can be cancelled and another date and time substituted in the motion for the replacement time for the meeting. But if a governmental body wishes to, for example, change its regular meeting night from the 1st and 3rd Mondays to the 1st and 3rd Tuesdays, or change the regular time or place of a public meeting, that action, after having been approved by the governmental body, must appear in a public notice in a newspaper of record.
Who is to take the minutes of public meetings?
Although the Open Meetings Act requires that minutes be taken of all open and closed public meetings, along with video or audio recordings of closed meetings, there is almost nothing in State law that directs any particular person or officer in any governmental body to carry out this task. In most governments, the minutes are taken by the person chosen as the Clerk or the Secretary. Even in those governmental bodies, the particular members of the Corporate Authorities, committees of the Corporate Authorities, or other sub-entities, generally have the ability to choose a recording secretary or some other person to take the minutes. Ultimately, the minutes are those of the entity whose meeting is being monitored. It is the members of that body who have the task and the obligation of approving the minutes. The minutes can be very detailed or they can contain only the few elements required by statute. That decision is entirely up to the body which is obligated to see to the production of minutes of its meetings unless there is an overriding ordinance in the form of minutes passed by the government's corporate authorities.Close
Can a governmental body or one of its committees hold a workshop or strategic planning session in closed session?
Generally not. Unless the subject of the workshop involves only a matter eligible for closed sessions, such as perhaps a workshop to review pending litigation, it must be held in open session. In addition, even a workshop on "how to deal with pending litigation" would involve more issues of training and public policy than matters of pending litigation themselves and would need to be discussed, like almost all public policy issues, in open session. Workshops or strategic planning sessions, held in special meetings, can take place off-site from the local government's headquarter, but need to be at a place and time which would be convenient for members of the public or the press who might wish to attend.Close
Can a Mayor ask that the Council use a Consent Agenda to have a single vote on a number of items? There is nothing in our ordinances that authorizes the use of a Consent Agenda.
The procedures for "omnibus vote" is contained at 65 ILCS 5/3.1-40-40. State law does not require that a municipality have in place a pre-existing ordinance permitting it to utilize the device of "omnibus vote" or "consent agenda." Instead, the statutes merely provide that "the Corporate Authorities at any meeting may, by unanimous consent, take a single vote by yeas and nays on the several questions of the passage of any two or more of the designated ordinances, orders, resolutions or motions placed together for voting purposes in a single group." If any member of the City Council objects to the use of this device, it cannot go forward. Although all members of the Corporate Authorities must agree to take an omnibus vote on a series of items, the actual vote itself can have aye and nay votes, although the effect of using this device is that an Alderman or Trustee who wanted to vote against a single item would have to vote against everything on the Consent Agenda. The Mayor in a non-home rule municipality does have the authority to suggest the use of a Consent Agenda, but since most Mayors don't have the ability to make motions, the actual motion to create a Consent Agenda and to place particular items on the Consent Agenda must come from an Alderman or Trustee. When the vote is taken, if one of the Aldermen or Trustees votes against the use of the Consent Agenda and/or the items to be placed on the Consent Agenda at that meeting, the Council or Board must go back to voting on each item individually. In most cases, a Consent Agenda is a good idea; it streamlines Council or Board meetings.Close
In our municipality, an ordinance passed and the Mayor said at that meeting, he was vetoing it. At the next meeting, he presented written reasons why he opposed the ordinance, but he did not use the word “veto” in his message. Is his veto valid?
Although the Mayor’s actions were a little irregular, since he couldn’t
effectively orally veto the ordinance, they probably, in total, constituted
a valid veto. The Mayor cannot
exercise the power to veto at the same meeting the item passes.
The statute says that his disapproval is to be indicated by written
objections at the next regular meeting of the Council or Board occurring not
less than five days after the passage of the Act he wishes to veto.
A court would probably find that the Mayor’s initial statement that
he wanted to veto the ordinance, along with his “written objections,” read
together constitute a valid veto.
Finally, in order to prevent a surprise veto by a Mayor, the Council or
Board is to act on the Mayor’s written veto “at the next regular meeting
following the regular meeting at which the City Council receives the Mayor’s
written objection.” The vote of
two-thirds of all of the Aldermen or Trustees then holding office are
required to override the veto.
Is a governmental body precluded from acting upon a matter if enough citizens sign petitions to cause the question under debate or dispute to be the subject of a non-binding referendum?
If the question being presented by the citizens has little effect upon the rights of third parties, such as the question of whether a new city hall should be built, the elected officials of the community may wish to wait on a decision to learn the views of the public. In other cases, such as whether the municipality should allow a controversial newspaper to be distributed in the community or whether a zoning variance should be granted, the constructional rights of the newspaper owner or the property owner cannot be made to depend upon the majority view of the electorate. The governmental body, in those cases, has an obligation to reasonably quickly process applications associated with those property rights. Individuals who object to zoning, for example, can appear at the public hearing before an advisory board, or even before the Corporate Authorities and express arguments which have validity in the zoning process, but a variance, as an example, cannot be denied a property owner by a governmental body simply because the owner of the property is unpopular, or many citizens do not favor a variance which, under the facts, really needs to be granted under existing statutory or case law.Close
Can a television crew set up equipment to video-tape a public meeting?
All units of local government and School District in Illinois are required to permit audio and/or video-taping of the open portions of public meetings. The equipment used, however, and its placement is within the reasonable jurisdiction and rule-making authority of the public body, which is holding the meeting. The type of equipment used and its placement cannot interfere with our delay the meeting’s process. If a governmental body expects individuals at its meetings, who will be using audio or video equipment, some pre-discussion can take place regarding location, lights and whether those individuals wish to use electrical outlets. Governments are not required to make electricity available, but they should probably do so in ways that will not intrude upon the process. Since the Open Meetings Act now allows individuals to ask questions or make comments during the open portions of public meetings, which used to be at the complete discretion of the governmental body, individuals may wish to record not only the meeting itself, but also their involvement as questioners or statement makers. All of these activities are subject to reasonably constructed rules by the governmental body, which should be directed at recording and protecting the rights of citizens while allow a legislative or administrative process to move forward effectively.Close
Under what circumstances must a municipality award contracts only after a formal bidding process?
Municipalities can adopt their own procedures for the award of contracts
so long as they are not less stringent than State law. For
municipalities, contracts are only required to be bid if they relate to
public works, typically construction projects, and are in excess of
$20,000. A municipality can waive the bidding process upon the vote of
at least 2/3rds of its Aldermen or Trustees. For contracts involving
engineers, architects and surveyors, municipalities must engage in a
selection process, which does not initially involve negotiating a price
for services. That process is waived if the municipality is contracting
with an entity with which it has a satisfactory prior relationship.
The statute mandating that process does not apply in home rule
municipalities, and such municipalities can, if they wish, ignore the
previously-mentioned statutory requirements, since there is currently no
pre-emption of home rule powers. Many muncipalities utility a process
of RFPs or Request For Proposals, when they do not need to or do not
choose to follow the standard statutory requirements.
What happens if a news media outlet has been sent a notice of a meeting but that notice was not received?
The Opens Meetings Act states that the failure of any news media to receive a notice which was in fact provided in accordance with the Open Meetings Act does not invalidate the meeting. A little known section of the Open Meetings Act requires any news medial to give the public body an address or phone number within the territorial jurisdiction of the public body at which this notice may be given.Close
Is our government body supposed to do something at the beginning of the calendar year to establish and announce the dates of regular meetings?
The Open Meetings Act provides that at the beginning of each calendar or
fiscal year, each governmental body is to prepare and make available a
schedule of all of its regular meetings for such calendar or fiscal year
listing the times and places of such meetings. In addition, public
body that has a website that the full-time staff of the public body
maintains must post notice on its website of the annual schedule of
meetings which is to remain on the website until a new public notice of
the schedule of regular meetings is approved.
What can our government do if our local assessor and county clerk, in a tax cap county, fail to properly extend our tax levy against uncapped new construction?
In many counties the officials send governmental bodies indications of the way in which assessments on existing and new property is established along with the tax rates that are created from the levy ordinances. These documents should be checked when received. Some times if an error is made by a county taxing official, the government can increase its levy in a subsequent year with perhaps a slight loss in interest income. If that is not allowed or possible, a lawsuit can be filed against the officials seeking recovery of the funds which otherwise should have been collected.Close
What does a governmental body need to do to approve a Change Order to a contract previously entered into?
State law establishes a rather complicated process for the
approval of significant change orders. If a change order necessitates
an increase or decrease in the cost of the public contract by a total of
$10,000 or more, or in the time of completion by a total of 30 days or
more, the State law requires, subject to a criminal penalty, a written
determination to be made. (720 ILCS 5/33E-9) Either the Corporate
Authorities of the governmental body or a designee must find that one of
three things have occurred to allow for the Change Order to be
approved. A written determination and the written Change Order
resulting from the determination must be preserved in the contract’s
file and also shall be open to the public for inspection.