As we reported last week, last Friday, Governor Pritzker issued Executive Order 2020-38, which expressly exempts the free exercise of religion from the EO's requirements. Unlike the Governor’s prior Stay at Home Order that limited religious gatherings ...
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Municipal Minute

Update on COVID 19 Restrictions on Places of Worship

As we reported last week, last Friday, Governor Pritzker issued Executive Order 2020-38, which expressly exempts the free exercise of religion from the EO's requirements. Unlike the Governor’s prior Stay at Home Order that limited religious gatherings to 10 people (which expired on May 29, 2020), the new EO only encourages, but does not require faith leaders, staff, congregants or visitors to follow the IDPH recommendations on best practices for religious services. 

On May 28, 2020, the Illinois Department of Public Health (IDPH) published recommended practices for places of worship and religious service providers. The recommendations include suggestions for reconfiguring places of worship for social distancing, cleaning and disinfecting protocols, physical distancing guidelines, temperature screenings, and other individual control measures. Notably, the recommendations also endorse certain best practices for in-person services, although the IDPH strongly recommends remote and drive-in services as safer options, “particularly for those who are vulnerable to COVID-19 including older adults and those with co-morbidities.” 

A summary of the IDPH guidelines is below:

Safest Options—Remote and Drive-In Services

The IDPH advises that remote services through online streaming, radio broadcast, and/or telephone or dial-in, is the safest method to avoid COVID-19 transmission. For drive-in services, the recommended best practices include congregants who live together to travel together and remain inside the vehicle at all times, and maintain more than 6 feet of distance between cars. 

Relatively Safe Option—In-Person Outdoor Services in Small Groups of 10 People of Less

Although the IDPH recommends remote and drive-in services as the safer options to mitigate the spread of COVID-19, the IDPH does provide recommendations to places of worship that choose to resume or expand in-person activities. The IDHP recommends outdoor services in small groups of 10 people or less as a safer option than indoor services. Recommended best practices for in-person services include congregating persons from the same household to sit together and at least 6 feet apart from other congregants and groups, wearing face coverings, regularly sanitizing restrooms, and maintaining sufficient amounts of soup and hand sanitizer. 

Guidance for In-Person Indoor Activities 

For indoors services, the IDHP recommends limiting in-person services to small groups of 10 people or less for special events (weddings, funerals, baptisms, etc.), or limiting in-person activities to private prayer and worship. Where the 10-person limit cannot be followed, the IDPH encourages places of worship to limit attendance to 25% of the building’s capacity or 100 attendees, whichever is lower. Other recommendations for in-person services include: gradually increasing capacity limits to enable places of worship to improve safety protocols, testing and social distancing plans, conducting multiple small services instead of one large service, considering reservation systems to limit capacity, assigning seats to ensure social distancing and developing plans for how congregants can safely enter and exit seating areas, staggering small separate services for certain groups, such as for the elderly and vulnerable and congregants with small children who will have difficulty social distancing, and allowing contact tracing for confirmed COVID-19 cases. 

Avoiding the Riskiest Activities

Since COVID-19 spreads primarily through respiratory droplets by person-to-person contact, the IDPH recommends avoiding or limiting certain activities at places of worship that pose a heightened of viral transmission. Instead of singing and group recitation and similar practices and performances, the IDPH recommends adopting silent recitation, using prerecorded music, or having a single singer in a separate area with speaker transmission. The IDPH also recommends discontinuing serving food and beverages. Additionally, the IDPH recommends waving or other greetings instead of greetings that break physical distance. Lastly, IDPH advises modifying or discontinuing certain rituals involving kissing, bathing, and other practices that encourages the spread of COVID-19.

Lawsuit Update

For those following the lawsuit filed by Elim Romanian Church against Governor Pritzker to challenge the State's restrictions on religious services, that case made its way to the U.S. Supreme Court last week. The U.S. Supreme Court denied the church's appeal, finding that the case was "moot" because the IDPH had issued its new guidance on May 28th that lifted the restrictions challenged by the church.

In a separate decision involving a California lawsuit filed by a place of worship, the Supreme Court found that California's restrictions on places of worship did not violate the First Amendment, holding that the state had a compelling government interest in protecting the health and safety of residents and that the state's restrictions did not treat places of worship less favorably than comparable assembly uses. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Municipal Minute is authored by Julie Tappendorf, a partner at the Ancel Glink law firm in Chicago, to provide timely legal updates on topics of interest to local governments.

UPDATE: EO 2020-39 Addresses Remote Meetings (OMA)

Thank you to a Municipal Minute reader for forwarding a copy of Executive Order 2020-39 that extends certain previous EO's, including the suspension of the in-person requirements for public meetings under the OMA. Pursuant to this new EO, EO 2020-07, as amended by EO 2020-33, is reissued and extended through June 27, 2020, or until SB 2135 is enacted and takes effect, whichever occurs first.

So, public bodies can move forward with remote meetings based on the previous EO, as extended by this new EO 2020-39.

There is a lot more to this EO which we will report on next week. 


Municipal Minute is authored by Julie Tappendorf, a partner at the Ancel Glink law firm in Chicago, to provide timely legal updates on topics of interest to local governments.

Governor Pritzker Issues New Disaster Declaration and Phase 3 EO

Yep, it's Friday, the day of the week we seem to get the most important and relevant information from the State of Illinois!

Today, Illinois Governor Pritzker issued a new Disaster Declaration over all counties in Illinois and a new Executive Order 2020-38 describing the new regulations for Phase 3 of the Restore Illinois Plan. The documents have not yet been posted on the state's website, but you can read the Declaration here and the Executive Order here. 

DISASTER DECLARATION

General Authorizations

The Disaster Declaration declares the entire state a disaster area due to COVID-19. It directs various state agencies, including the Department of Public Health (IDPH) and the Illinois Emergency Management Agency to develop and implement strategies and plans to address the impact of the pandemic on residents, including expanded testing. The Illinois Board of Education is directed to address any impact to learning during the pandemic. All state agencies are directed to cooperate with the Governor, other state agencies, and local governments in disaster relief operations.

Open Meetings Act

Important to local government bodies is Section 12 which addresses remote meeting attendance. Previously, the Governor had suspended certain provisions of the Open Meetings Act requiring in person attendance at meetings of public bodies by Executive Order 2020-07, as extended. This Disaster Declaration does not extend the previous EO on remote meetings and instead references Senate Bill 2135 that amends the OMA and the Governor's finding that the public health  concerns raised by the COVID-19 pandemic renders in-person attendance of more than 10 people at the regular meeting location not feasible. 

At the time this blog post was published, Senate Bill 2135 had not yet been signed, so hopefully that happens sooner rather than later to ensure that public bodies have the guidance they need to proceed with remote meetings.

PHASE 3 EXECUTIVE ORDER

Social Distancing

The EO continues the previous social distancing requirement that individuals using shared spaces outside of their residence should maintain social distancing of at least six feet from others who they do not live with. 

Face Coverings

The EO continues the previous face covering requirement for all individuals over the age of two when they are in a public place and unable to maintain a six foot social distance, with medical exemptions. The requirement applies to indoor spaces, as well as outdoor areas where maintaining a six foot social distance is not always possible.

Limits on Gatherings

The EO prohibits any gathering of more than 10 people unless exempt under the EO, and encourages remote gatherings.

Go Outdoors

The EO encourages residents to conduct activities outdoors, consistent with public health guidance that the risks of transmission of COVID-19 are greatly reduced outdoors.

Guidance for Businesses and Other Organizations

Consistent with the previously released business guidelines and toolkits, the EO establishes certain guidance for businesses allowed to reopen in Phase 3, including encouraging remote work where possible, requiring employees to wear face coverings and practice social distancing, among others. The EO includes the various categories of businesses and organizations covered by the more specific guidelines previously released by the state. 

Businesses and other organizations are encouraged to read both the EO and the specific guidelines tailored for their operations to ensure compliance with the new restrictions. These requirements may include designating six foot distances between employees and customers, providing adequate hand sanitizer products for employees and customers, separate operating hours for vulnerable populations, providing remote access where practical, and ensuring adequate face coverings and PPE for employees in certain cases.

Exemptions

The EO contains the following exemptions:

1. Free exercise of religion. The EO expressly states that it "does not limit the free exercise of religion." Places of worship are encouraged to follow the recommended practices and guidelines published by the Illinois Department of Health (we will be reporting on those next week, so stay tuned), which suggest drive-in or outdoor services.

2. Emergency functions. The EO exempts the activities of first responders, emergency management personnel, dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support emergency, although the EO encourages social distancing and other recommended public health measures.

3. Governmental functions. The EO provides that it does not apply to the US government, and does not affect services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public.

Enforcement

Like previous EO's, state and local authorities are authorized to enforce under the IEMA. 

Municipal Minute is authored by Julie Tappendorf, a partner at the Ancel Glink law firm in Chicago, to provide timely legal updates on topics of interest to local governments.

Upcoming Quorum Forum Podcast - "Live" Local Gov Legislation Update


Ancel Glink's Quorum Forum Podcast will be "live" on Monday, June 1st at 5:00 p.m. for Episode 39: Local Gov Legislation with Rep. Chris Welch.  Information about the upcoming podcast and how to register is below:


The Illinois General Assembly recently concluded a socially-distanced special session unlike any other, sending lots of legislation affection local governments to the Governor. Join us for a web conference with Ancel Glink partner and State Rep. Chris Welch on Monday June 1, 2020 at 5 pm to discuss local government funding, remote meeting attendance, cocktails to-go, and more! 

Our conversation will be recorded for Ancel Glink's Quorum Forum podcast, so email us your questions about new local government legislation to podcast@ancelglink.com, and click here to register!

Municipal Minute is authored by Julie Tappendorf, a partner at the Ancel Glink law firm in Chicago, to provide timely legal updates on topics of interest to local governments.

General Assembly Sends Remote Meetings Bill to Governor


During the COVID-19 pandemic, many local governments have been meeting by audio or video conference without a physically present quorum, consistent with the executive orders signed by Governor Pritzker.

During its recently concluded special session, the Illinois General Assembly passed legislation that will help local governments hold meetings without a physically present quorum during a declared public health disaster, such as those related to COVID-19. If Governor Pritzker signs SB 2135, as expected, local governments may have to adjust their remote participation practices to ensure their meetings comply with the new law.

Under the bill, public bodies may hold open or closed meetings by audio or video conference without a physically present quorum under the conditions described below.

Preparing for the Meeting

Disaster Declaration Required

First, the Governor or the Illinois Department of Public Health must make a disaster declaration for all of part of the public body’s jurisdiction related to public health concerns. The recent Gubernatorial Disaster Proclamations related to COVID-19 would satisfy this condition while they are in effect.

Determination by Head of Public Body

Next, the president, mayor, chairman, or other person holding primary executive and administrative authority for the local government must determine that an in-person meeting would not be practical or prudent because of the disaster.

Notice to Public Body Members and News Media

The public body must notify its members, and the news media that requested notice of meetings, that the meeting will be held by audio or video conference without a physical quorum. The notice should also be posted on the public body’s website.

In the case of a bona fide emergency, notice should be given to the news media that requested notice as soon as practicable, but in any event prior to the holding of such meeting. The presiding officer must state the nature of the emergency at the beginning of the meeting.

Notice of Alternative Public Attendance

If the disaster makes physical attendance by the public unfeasible, the public body must make alternative arrangements that will allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link. Those arrangements should be included in the required notice.

Public Body Bears Costs

The public body must bear all costs associated with complying with the requirements for meetings by audio or video conference without a physical quorum. In other words, a local government should not use an audio or video conference service that charges members of the public to participate.

When the Meeting Starts

Record the Meeting

In general, local governments are not required to record their meetings, except for closed session. However, they must keep a verbatim record in the form of an audio or video recording for meetings without a physical quorum. These recordings must be made available to the public and are otherwise subject to the Act’s provisions regarding maintenance, review, and destruction of closed session recordings.

Minimum Physical Presence, if Feasible

Unless the disaster makes it unfeasible, at least one member of the public body, the chief legal counsel, or the chief administrative officer must be physically present at the regular meeting location.

Make Sure Participants Can Hear One Another

The public body should verify the participating members and make sure they can hear one another and all discussion and testimony. The public body should also make sure that any physically present members of the public can hear the discussion and testimony.

The reference to “testimony” suggests the General Assembly intended to facilitate public hearings without a physically present quorum.

Determine a Quorum

Each member of the body participating in a meeting by audio or video conference should be considered present for purposes of determining a quorum and participating in all proceedings.

During the Meeting

Roll Call Votes Required

All votes should be done by roll call during a meeting without a physical quorum, so each member’s vote can be identified and recorded.

Minutes and Public Comment

Meetings without a physical quorum are still subject to the requirements of Section 2.06 of the Open Meetings Act. In addition to complying with closed session verbatim recording requirements, public bodies should keep minutes as they ordinarily would. In addition, members of the public must still have an opportunity to address the public body, under its adopted rules.

Next Steps

The Governor is expected to issue a new disaster proclamation before the current one expires on May 30, 2020. With the last disaster proclamation, the Governor has reissued the executive order facilitating local government meetings without a physical quorum. As of this writing, it remains to be seen whether the Governor will reissue that executive order again and/or sign this new legislation to help local governments meet during the ongoing COVID-19 pandemic. Either way, when the Governor signs SB 2135, local governments should be prepared to adjust their remote meeting practices to comply with the new law.

Post authored by Daniel J. Bolin

Municipal Minute is authored by Julie Tappendorf, a partner at the Ancel Glink law firm in Chicago, to provide timely legal updates on topics of interest to local governments.

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