Reminder: Prevailing Wage Act Changes Take Effect June 1
About this time each year, Illinois public bodies begin putting together their annual prevailing wage ordinances or resolutions to present to their boards and councils for approval in June so the ordinance or resolution can be filed with the Department of Labor by the July 15th statutory deadline of the Prevailing Wage Act. Not this year, though. As we reported previously
, the Illinois General Assembly enacted P.A. 100-1177
to amend the Prevailing Wage Act to eliminate the requirement that public bodies adopt an ordinance or resolution to "ascertain" prevailing wages. That new law takes effect June 1, 2019, just in time to eliminate this year's requirement of adopting an ordinance or resolution.
Moving forward, instead of every public body adopting an ordinance or resolution ascertaining prevailing wages, the Department will ascertain the prevailing wage for them. Of course, the underlying statutory requirement that public bodies pay prevailing wages for work covered by the Act still exists, but the annual obligation to adopt a prevailing wage ordinance or resolution will be eliminated on June 1st.
GovLove Podcast on Regulating Public Rights of Ways
Check out Ancel Glink Partner Dan Bolin's appearance on #GovLoveLegal, a GovLove podcast hosted by ELGL and recorded live at the 2019 APA National Planning Conference. A description of the podcast is below and you can listen to the podcast here.
GovLove was recently at the National Planning Conference for a session all about right-of-way. Local governments hold the public right-of-way in trust for the benefit of the public; but rapid changes in technology, federal policy, and constitutional law are increasing demands for services and challenging local regulatory authority. Experienced local government attorneys, and industry professionals discuss best practices for right-of-way management in the face of emerging challenges. Panelists include: Alan Weinstein, Cleveland State University; Alicia Giudice, San Rafael, CA; Brandon Bordenkircher, Chaddick Institute for Metropolitan Development; Daniel J. Bolin, Ancel Glink; Gail A. Karish, Best Best & Krieger LLP; and Isidro A. Jimenez, San Francisco, CA.
Village Did Not Breach Contract by Failing to Disclose County Permit Requirements
According to a recent Illinois case, the issuance of a building permit does not create a contract between an applicant and a municipality. In 2008, Paul and Dana Mosier obtained a building permit from the Village of Holiday Hills to construct a garage, patio, and driveway on their property. Five years later, the Mosiers were sued by McHenry County for constructing improvements within a regulatory flood-prone area without a County stormwater management permit. In turn, the Mosiers sued the Village for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”). Mosiers claimed the Village’s building inspector breached an "oral contract" with them when he advised they undertake certain structural improvements, issued a building permit, but failed to notify them of the County’s permit requirements. In addition, the Mosiers claimed the building official violated the Consumer Fraud Act because he induced them to construct the improvements and knowingly made false statements. In Mosier v. Village of Holiday Hills, the court ruled in favor of the Village on both claims. First, it deemed a building permit more similar to a license than a contract because, similar to a license, a municipality has the power to impose restrictions and revoke building permits pursuant to its police powers. Second, when an applicant qualifies for a building permit, a municipality is required to issue it without receiving any “consideration” in return (other than the permit fee which pays for its costs). The court also found the Consumer Fraud Act inapplicable. The Act is intended to prevent deceptive behavior during a transaction “involving trade or commerce” involving such things as advertising, offers for sale, or distribution of services or property. According to the court, instead of being a private commercial activity, the issuance of a building permit is a municipality’s fulfillment of its regulatory and statutory functions in accordance with state law and local ordinance.
Post Authored by David Warner, Ancel Glink
How Will Recreational Marijuana Affect Illinois Local Governments?
On May 4, 2019, Governor Pritzker and key legislators unveiled a long-anticipated proposal to legalize the use of cannabis for adults over the age of 21 under Illinois law (Amendment No. 1 to SB 7). The proposed law would allow residents over the age of 21 to possess up to 30 grams of cannabis and grow up to five plants per household. The Act prohibits the use of cannabis in public places including government buildings.
While the draft legislation might be amended and still has to be approved by the General Assembly, it is not too early for local governments to prepare for the proposed law's sweeping changes affecting cannabis business establishments, including land use/zoning, tax revenues, employee policies, expungement obligations, among others. We can't possibly go into everything that is in the 533 page bill, but we have provided a brief summary of some of the provisions that affect units of local government below.
One Year to Prohibit Cannabis Business Establishments
The draft legislation contains a provision that will allow local governments to "opt-out" or entirely prohibit cannabis business establishments in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. However, any "measure prohibiting or significantly limiting" the location of cannabis businesses has to be adopted within one year of the effective date of the Act. After this one-year period has expired, local governments will have to seek approval by referendum to adopt any prohibition or significant limitation on cannabis businesses.
Regulate Cannabis Businesses
The current bill allows local governments to regulate cannabis businesses but only to a certain extent. The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act or unreasonably prohibit home cultivation and use of cannabis; (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses; and (3) regulations on the consumption of cannabis in a manner consistent with the Act. This language would permit local governments to impose distance restrictions between cannabis businesses and other sensitive uses and locations, limit the hours of operation of cannabis businesses, or set a cap on the number of cannabis businesses allowed within the jurisdiction. The current bill also expressly allows local governments to regulate cannabis businesses through the use of conditional (special) use permits. While the bill allows local governments some regulatory authority, the bill prohibits local governments from regulating cannabis businesses in a more restrictive manner than allowed under the Act. Importantly, this prohibition includes an express home rule preemption.
Employment Policies and Workplace Drug Policies
Under the current bill, employers will have the authority to adopt reasonable and nondiscriminatory employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace. In addition, employers will have the power to discipline or terminate employment of an employee for violating an employer's employment policies or workplace drug policy. The Act also establishes when an employer may consider an employee to be under the influence of cannabis. Municipal Cannabis Sales Tax Under the current bill, both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments.
Expungement of Local Records and Offenses
The initial procedure for expunging criminal records will be handled by the Illinois State Police (ISP) as well as the State's Attorneys Office. However, local law enforcement will have to automatically expunge records pertaining to arrests for minor violations identified by the Department of State Police within 60 days of notice from ISP.
SB 7 is only a proposal at this time and still needs to pass both the Illinois House and Senate and be signed by the Governor before it becomes law. However, it is important to note that the current draft state budget includes cannabis revenue, so, it is expected that the General Assembly will move fairly quickly to consider passing legislation.
PAC Releases Annual OMA/FOIA Report of 2018 Activities
"Sunshine Week" came and went this year without any fanfare from the Illinois Attorney General's office. Typically, that is when the Public Access Counselor (PAC) publishes its annual report on OMA and FOIA complaints and training sessions. Although I didn't see any press about the release of the 2018 annual report, it was issued and you can find a copy of the report on the AG's website here
As we have in the past, we've highlighted some of the findings and summaries here in case you don't want to read through 39 pages of the full report.
Complaints filed in 2018
- In 2018, the PAC received 3,748 "requests for review" of OMA and FOIA matters.
- 3,372 of these were related to FOIA
- 376 relating to the Open Meetings Act
Training sessions conducted in 2018
The PAC conducted 32 training sessions on OMA/FOIA
Binding opinions issued in 2018
The PAC issued 18 binding opinions in 2018. Regular readers know that we summarize the binding opinions on Municipal Minute. You can find summaries of the first 16 binding opinions issued in 2018 here
and the last 2 binding opinions for 2018 here
. They are also posted on the AG's website here
Non-binding opinions issued in 2018
Interestingly, this year's annual report does not identity how many advisory opinions were issued in 2018. Given that there over 3700 complaints filed in 2018, and only 18 binding opinions issued in 2018, one can guess that there were hundreds, if not thousands, of advisory opinions issued - either that, or a significant number of these complaints remain unresolved.
So, where can one find all of these advisory opinions?
Well, as regular readers know, the PAC does not post the non-binding or advisory opinions on the AG's website. The only way to get access to these opinions is to file a FOIA request with the PAC or AG. The problem, of course, is that there are just so many advisory opinions. How does a requester narrow the request sufficiently to avoid an "unduly burdensome" claim by the PAC, a task that can prove very difficult if a requester doesn't have an idea of the topics addressed in these opinions since the PAC hasn't posted an index of these opinions.
A handful of these advisory opinions are summarized in the annual report, so that is a helpful resource. But, I still remain hopeful that at the very least, the PAC will put together and post on its website an index of these advisory opinions to make it easier for the public and public bodies to request copies of opinions of interest. It would be a step in the right direction by the office tasked with ensuring government operates transparently. And, it would offer a lot in the way of helpful guidance to public bodies in ensuring compliance with FOIA and OMA, particularly because there are so very few binding opinions issued each year (only 3 so far in 2019).