Questions and Answers
2001 Illinois Muncipal League Conference
by
Stewart H. Diamond
Robert K. Bush
Keri-Lyn J. Krafthefer
Derke J. Price
1. Must a newspaper notice be published to reschedule a meeting?
ANSWER: No. If a meeting has not concluded and a motion is made to recess to another date, no notice of the new meeting is necessary. Even in that case, it is a good idea to notify the press of the change and to post the information. If a single meeting date is being changed, a motion is necessary to accomplish this, and a notice to the press of the change is advisable. If the municipality intends, for example, to change its regular meeting night from Monday to Tuesday, the action can be accomplished by a motion, but a notice of the change must be published in a newspaper and the public and the press must be notified by actual notice and posting.
2. Can two Aldermen or Trustees call a special meeting?
ANSWER: No. A special meeting can only be effectively called by the Village President or Mayor, or by three Trustees or Aldermen. Two is not sufficient. If less than a quorum of the full Board or Council appears at the time of the meeting, the session cannot go forward.
3. Are Trustees allowed to speak as many times as they wish regarding a pending motion?
ANSWER: No. In the absence of any specifically adopted parliamentary procedure, the presiding officer determines what individuals will speak about a motion. The decision of the presiding officer can be appealed and overturned. Some municipalities adopt rules of procedures which address this issue and typically provide, at a minimum, that no member of the Board or Council shall address an issue until all other persons wishing to do so have had an opportunity to speak. Rules can be more restrictive although care must be taken so that individuals whose views are in the minority are allowed to at least "equal time." A sample set of "Rules of Procedures" are posted on our web site: www.ancelglink.com.
4. Do members of the audience have a legal right to speak at Board or Council meetings?
ANSWER: No. While most Illinois municipalities allow members of the audience to speak during one or more parts of a meeting, there is not specific right in the public to orally address the Board or Council. Citizens are given the right to petition in writing, but presentations before the Board itself or its committees can be prohibited or restricted. Individuals have successfully sued governmental bodies, however, where views favorable to that of the municipal majority were allowed to be expressed while other views were suppressed. It is also extremely important to distinguish a public meeting, where citizens have no absolute right to speak, from a public hearing where citizens are given the right to actively speak and participate.
5. Can a person in attendance at a public hearing ask questions of witnesses?
ANSWER: Yes. This issue is currently pending in the Illinois Supreme Court, and may be decided prior to the IML Conference. The current law on this subject is that when the law requires or municipalities permit a public hearing process, the public is entitled to reasonable notice and an opportunity to actively participate. That participation includes the right to make presentations, ask questions and to cross-examine witnesses. The right to cross-examine must be reasonably exercised, and the government can develop rules of procedure which persons attending the hearing must follow.
6. Can the Aldermen or Trustees create their own committee structures?
ANSWER: Yes. While in most municipalities, the Mayor, by ordinance or tradition, is given the authority to make the appointments to committees and to choose committee chairmen, this function can be retained by the Council itself by the creation of or amendment of an ordinance with a vote adequate to override any possible mayoral veto. Municipalities should carefully debate such a change before undertaking it.
7. Does the Mayor get to choose the municipal attorney?
ANSWER: Yes, except in manager form governments, where the manager is given that authority. Probably because of the significant potential liability which a Mayor or statutory Manager, not properly legally advised, can subject a municipality to, the courts have generally held that the selection of the principal attorney providing legal services to the municipality resides with the Mayor or Manager rather than with the council or board. This is the rule whether the person or firm providing that legal advice is functioning as an officer or as an independent contractor. Where a sufficient number of Aldermen or Trustees feel that they are not receiving complete or independent advice, they can pass, over the Mayor's veto, an ordinance establishing a separate position as legislative counsel where services of an independent lawyer or firm can be authorized and directed by them. An article dealing with this issue in great detail and entitled "Lawyers, Lawyers Everywhere," can be found on our web site at: www.ancelglink.com.
8. Can the selection of the outside auditor for the municipality take place in closed session?
ANSWER: No. Up until a few years ago, discussions regarding the employment or dismissal of officers, employees and independent contractors could all be discussed in closed session. The latest version of the Open Meetings Act specifically states that issues relating to persons or firms employed as independent contractors, like auditors, attorneys, consultant engineers and others, can only be discussed in open session.
9. Do Minutes need to be taken in closed sessions?
ANSWER: Yes. The Open Meetings Act requires that Minutes be taken of all closed sessions of all public bodies including meetings of the legislative body, its committees and other commissions, committees or agencies of the local government. The Minutes need only describe who attended the meeting, in a general way what was discussed, and whether any actions were taken. The votes which can be taken in a closed session meeting are extremely limited and generally involve only the acquisition of property, directions to attorneys or negotiations on how to proceed in collective bargaining situations. To be effective, almost all such actions, tentatively authorized in closed session must subsequently be approved in open session.
10. Must closed session Minutes be ultimately released?
ANSWER: Yes. The Minutes taken of closed sessions must be released when the matter which was discussed has been resolved, and is not an issue of continuing interest. By law, every public body which is required to keep minutes must review any unreleased executive session minutes, at least every six months, to determine whether those previously withheld can now be released.
11. Can a public body meet only for the purpose of going into a closed session?
ANSWER: Yes. But such a meeting, limited to closed session matters, must begin with a properly announced open session except, that a governmental body may schedule a number of closed sessions by a single authorizing vote if the subject is collective bargaining.
12. Must all meetings of a governmental body be located at the municipal building?
ANSWER: No. Governmental bodies in Illinois are given broad discretion as to the frequency, time, and place of their meetings. Meetings must be noticed in accordance with the Open Meetings Act, and they must be conducted at a time and place that is convenient for the public to attend. Occasionally, governmental bodies may wish to meet outside of the municipal boundaries to gain access to better facilities or to a larger meeting room. If properly noticed, municipalities can also hold open session retreats outside of the municipality. If, for example, a committee of a municipality is to make an off-site field trip to observe the location of a business proposed to be relocated within the community, the public should be notified of that meeting and members of the public permitted to accompany the elected officials, at their own cost, if they choose to do so.
13. Is the Clerk entitled to attend closed sessions?
ANSWER: Yes. By State law, the Clerk is entitled to attend all meetings of the Board or Council with the exception of those meetings which may specifically involve the performance of the Clerk, a criminal investigation involving the Clerk, or litigation when the Clerk is opposing the municipality. Any effort to bar the Clerk from a meeting should be discussed with the municipal attorney.
14. Are the votes of four Trustees, in a Village, adequate to authorize the execution of an annexation agreement?
ANSWER: No. In Illinois, a significant number of actions by municipalities require a greater than majority vote. A list of many of these items is found at Pages 110-118 of the Illinois Municipal Handbook, authored by the attorneys of this firm, on a volunteer basis, and published by the Illinois Municipal League. If a matter requires an extraordinary vote, the Mayor or Village President, who in most communities, does not ordinarily vote, is entitled to vote and his or her vote may be essential to assure passage. In the case of an agreement to authorize the execution of an annexation agreement, the vote authorizing this act must receive the vote of two-thirds of the Corporate Authorities. Note that the statute speaks of Corporate Authorities rather than Aldermen or Trustees. When that phrase is used, the group includes both the Aldermen or Trustees and the Mayor or Village President. In a Village, five affirmative votes, out of the seven members of the Corporate Authorities, is required to authorize the execution of an annexation agreement. Interestingly enough, the annexation of property itself would only require four votes, but most developers would not agree to annex large tracts of land to a municipality without procuring some of the benefits of an annexation agreement. Developers are interested in annexing their property to communities under the terms of an agreement which bind both parties to promises regarding the development for periods of up to 20 years.
15. Does a Mayor have to approve an ordinance for it to become effective?
ANSWER: No. When the municipality passes an ordinance, all Mayors, who possess veto power, [some, as in a commission form government, do not], have the choice of approving the ordinance by signing it, vetoing the ordinance, or allowing it to become effective without their signature. Mayors have until the next regular or special meeting, which occurs not less than 5 days after the passage of the ordinance, to decide whether they wish to veto the ordinance. Vetoes must be presented in writing at or prior to the date of that subsequent meeting. The Council or Board must then wait one additional regular meeting before making an effort to achieve the vote of at least two-thirds of the Aldermen or Trustees then holding office in order to override the Mayoral veto. Mayors with veto power have the ability to reject all motions or resolutions involving the expenditure of funds and all ordinances without regarding to subject.
16. Can a Mayor veto part of an appropriation?
ANSWER: In Illinois, mayors are given the ability to return items to the Council or Board with a partial veto which involves only some of the items contained within an ordinance or motion authorizing the appropriation or expenditure of sums of money.
17. Can an Alderman who is out-of-town at the meeting where a vote is to be taken to override a Mayor's veto, telephone in his or her vote?
ANSWER: Probably yes. A series of cases and opinions of the Attorney General appear to indicate that Illinois is a State which will accept the electronic attendance of Board or Council members who cannot be physically present at a meeting. We do not know the full extent to which this procedure will be allowed, but it is probable that a member of a board or council can assist in the creation of a quorum and take an active part in a meeting if connected telephonically. Some municipalities are developing procedural rules in an effort to tighten this project and provide security protections.
18. Can a vacancy in an elected Trustee or Aldermen's position be declared by the Council for a failure to attend meetings?
ANSWER: Probably not. Where an individual is elected to an office in Illinois, that person is accountable principally to the electorate. While the Council or Board does have certain limited powers to discipline an elected official who does not follow established rules, inattention to duty itself does not allow the Council to declare that a vacancy exists. Through a referendum, the voters could probably approve a change in the form of government which would cause a vacancy to occur as a result of non-attendance. Alternatively, the municipality can ask the State's Attorney to seek to remove the official for "non-feasance" in office.
19. Can the entire council try to reach a settlement with the presence of the suing developer in closed session?
ANSWER: No. Although the municipality is free to invite potential witnesses, attorneys, consultants and other persons into a closed session to discuss litigation, the attendance list cannot include the person suing the municipality. Closed sessions for the purpose of discussing litigation are to prevent the opponent from gaining an improper advantage. The reason is lost if, even to avoid public embarrassment, your opponent is allowed into the closed session. The only people then being kept in the dark are the public.
20. In a construction contract, can a municipality choose the contract proposal of the second lowest qualified bidder?
ANSWER: No. This may seem like a trick question, since there are many reasons why the person who bids the second lowest amount may actually be the lowest qualified bidder. Nonetheless, if the Village's choice is truly the second lowest bidder, the municipality cannot make the award utilizing the traditional bidding process. Assuming that this is a public works project in excess of $10,000, a non-home rule municipality can only pick the lowest responsible bidder. The municipality can, however, reject all bids and, by a vote of two-thirds of its Aldermen or Trustees, enter into new negotiations with the second lowest bidder and award the contract without bidding. In that case, the governmental body must be prepared to take the "political heat" for this action, and the risk that the second lowest bidder will change the price.
21. If all bids are higher than those which the municipality wishes to spend, can it change the specifications to make the job cheaper, and negotiate without seeking new bids with the lowest bidder?
ANSWER: No. A municipality, in a public works project, is permitted to negotiate with the lowest responsible bidder to arrive at a lower price. The rule is, however, that the specifications cannot be changed or else other bidders might claim that they could offer an even lower price.
22. Can a subcontractor who is not paid on a municipal job file a mechanic's lien against the completed public property?
ANSWER: No. Traditional mechanic's liens cannot be placed against public property. Instead, the statute makes a municipality require the developer to post a completion and performance bond. The performance bond is there for the benefit of subcontractors and persons who furnish materials to the job as a substitute for the mechanic's lien which could be filed in a private sector contract.
23. Can a municipality license doctors?
ANSWER: No. Non-home rule municipalities can only license those professions and occupations which are specifically authorized by statute. Even home rule municipalities, which have broader powers, cannot license or regulate a long list of businesses where the Legislature has pre-empted home rule powers. Even where a municipality is allowed to license a business, it can only do so for regulatory purposes, and not to gain revenue which bears no relationship to the potential cost of enforcement. Physicians, along with a long list of other entities, have gained pre-emption by the Legislature. A list of such "pre-empted" occupations is found at Pages 234-237 of the Illinois Municipal Handbook.
24. Can a municipality make a gift to a charity?
ANSWER: Yes, but only under limited circumstances. Municipalities are not allowed to give taxpayers' money away as unrestricted gifts. Every expenditure of public funds must be for a public purpose. For example, a municipality may enter into a grant program with the owners of commercial property who agree to remodel their facades. This expenditure of public funds, although seemingly a gift, would fulfill the public purpose of the rejuvenation of a central business district, and would ultimately produce jobs and increase tax revenue. Governments can, however, make grants to other governmental bodies and to private institutions so long as those other entities will be performing a service which, could perhaps be carried out in a less expensive way by the other entity, or could fulfill a need of the citizens which, for example, the municipality could perform, but the school district could perform with more expertise.
25. Can the expense account of elected officials be increased during their term?
ANSWER: Probably yes. The Constitution provides that the salary of elected officials cannot be increased or decreased during their term. Expenses are not considered items of salary, and can be increased to match inflation, or when the officials are asked to perform additional services for which out-of-pocket expenditures are likely to occur. Officials should keep good records of the amount spent since, under Federal law, reimbursements which are in excess of expenses are considered income.
26. Can a Trustee, appointed to fill the last two years of a four-year term, receive a salary in the same increased amount which newly-elected Trustees will receive?
ANSWER: No. A person who chooses to accept an appointment to an elective office can only receive the same compensation which was paid to the person he or she is replacing, who did not complete the full four-year term.
27. Can citizens recall elected public officials?
ANSWER: Probably not. No established form of Illinois municipal government contains a recall provision. Such a provision was found to be unconstitutional as a part of the commission form of government. It is possible that the citizens of a municipality could, by referendum, add a recall provision to the structure of the government of that specific municipality. The same answer would probably apply to referendum-based term limits.
28. Can a Trustee function as the Building Commissioner?
ANSWER: Yes, but only if there is no additional compensation for those duties, and the additional power is simply added to the function of a Trustee. In smaller municipalities, Trustees can carry out functions which, in other communities, are performed by paid employees, but these duties should not be considered those of an additional office.
29. Can a municipal officer, such as a Building Commissioner, enter into a contract with a municipality to perform work as an independent contractor?
ANSWER: No. There are only limited situations in which any officer of a municipality can enter into a contract with the community. The Mayor, Village President, members of the City Council or Village Board, are the only municipal officers permitted to enter into contracts with the municipality to provide goods and services, but only up to a very small dollar amounts. There is no such statutory exemption for other municipal officers, including clerks, police officers and firefighters.
30. Can a municipality refuse to annex land?
ANSWER: Yes. Under Illinois law, possibly with some extremely rare exceptions, governmental bodies have the complete ability to determine whether or not to annex additional land to a municipality. In the absence of some obligation accepted in a financial grant, the municipality also has the complete freedom as to whether it will provide utility services to land outside of its municipal boundaries.
31. Is a municipality permitted to zone religious institutions within the community?
ANSWER: Yes, but only under certain special rules. Municipalities have always had the power to include churches as structures regulated in a zoning ordinance. In a series of cases the courts have held, however, that a municipality has a much narrower range of discretion in its decision whether to grant or not to grant an application by a church for initial construction, remodeling or expansion. In addition to these cases, the Legislature has recently passed a law which holds municipalities to an extremely high standard in attempting to zone or regulate not only churches, but any person's activities which can be considered religious in nature.
32. Can a non-home rule unit enter into a three-year contract with several other municipalities and a private company to jointly pay for plan review and building inspections?
ANSWER: Yes. Ordinarily, a non-home rule unit, without specific statutory authority, does not have the authority to enter into multi-year agreements. Where, however, more than one governmental body is involved, the provisions of the Illinois Constitution and statutes allow such intergovernmental agreements to extend to matters which are not prohibited by statute or ordinance. Municipalities near urban areas have made great use of intergovernmental agreements. This would be an excellent device in other areas of the State where municipalities can enter into such agreements with townships, school districts, park districts or counties.
33. Do all elected officials have legislative immunity against lawsuits charging libel or slander?
ANSWER: No. Mayors, Village Presidents, Aldermen and Trustees, when addressing legislative matters in the context of a Board or Council meeting, possess near absolute legislative immunity. Mayors and Village Presidents also have broad executive immunity powers when the statements they make are directly related to their functions as the Chief Executive. Where Legislators, however, commit libel or slander, in campaign speeches or publications, press conferences or even during certain informal parts of governmental meetings, they may lose this immunity. The municipal Clerk does not possess either executive or legislative immunity. The Clerk and other municipal officials are generally entitled to qualified immunity if their actions relate specifically to their duties and there is no clear law which previously established the inappropriateness of the statements made.
34. Do elected officials have any immunity as they consider decisions whether or not to issue licenses or permits?
ANSWER: Yes. Under State law, neither the municipality nor its legislators or administrators are subject to damages for either issuing or failing to issue a license or permit. In State court, the citizen who feels he or she was wrong is limited to suing in order to require the permit to be issued. In some instances, where a failure to issue a permit or a license can be shown to violate established Federal law, lawsuits can be filed either in State or Federal Courts and, injunctive relief, damages and the payment of plaintiff's attorneys fees can be awarded. In addition, in Federal Court, there is always the possibility of a punitive damage judgment against an individual public official. Such damages must generally be paid by that individual him or herself.
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