AND THE FIGHT GOES ON. . .

Once again, the time for the Annual Conference of the Illinois Municipal League has arrived. This year marks the 74th occasion that municipal officials from throughout Illinois have gathered to discuss their common problems, look forward to the future and to take a brief hiatus from the day-to-day activities of governing in Illinois. For many years a summary of legislation and litigation affecting municipalities has been compiled from the previous year. Often times these materials are looked at as occurring in a kind of vacuum of the previous year. We all have a tendency to look at the most recent developments, decisions and legislation to find our course for the future. However, as Alphonse Karr said in 1849, "The more things change, the more they stay the same." Although the complexity of interrelationships in the law, both statutory and case law, continue to grow and develop, the problems and concerns bear a striking resemblance to those faced by municipal officials of years passed. A look back at the Illinois Municipal Review, published at or near Conference time, shows how little the basic concerns have changed in the context of today's litigation and legislation.

Fifty Years Ago

In 1937, Thomas A. Mathews wrote in the Review "the policy of regulating local salaries by general enactment by the legislature is certainly contrary to the existing laws relating to municipalities; and compliance with these laws would entirely wreck the administration of many cities. On this ground these laws are subject to serious attack . . . they exemplify again the fundamental wrong in legislative tinkering with municipal affairs." Mr. Mathews' writing occurred in discussing the first adoption of a minimum wage law for policemen and firemen by the General Assembly. Fifty years later, the legislature continues to "tinker" with not only the salaries to be paid by municipalities but the terms and conditions of employment for police officers and fire fighters in Illinois. This year's edition of the Legislative Report cites five bills enacted and one vetoed in which the ability of a municipality to control its police and fire employees is effected. This year, the legislature has restricted the administration of these employees in the area of residency requirements (HB 429, PA 85-0496), disciplinary procedures (HB 423, PA 85-0495), personnel investigations (HB 1060, PA 85-0676) and funding for law enforcement officers (SB 769, PA 85-0330). One bill which was amendatorily vetoed (SB 382) provides changes in the ability of a board of fire and police commissioners to suspend employees without pay. Eleven reported decisions dealing with police and fire activities produced mixed results. For example, in Lewis v. Hays (152 Ill. App. 3d 1020) the ability of a municipality to dismiss a probationary police officer without cause was restricted where the municipality had enacted rules and regulations providing greater protection. On the other hand, Punton v. City of Seattle (805 F. 2d 1378) prevented a police officer from seeking additional relief under federal civil rights statutes after he had been reinstated with back pay after a determination had been made that he had been improperly discharged.

Although the function of government in operating a police and fire department has been compounded by issues of due process, collective bargaining, retaliatory discharge and civil rights, the difficulty faced by municipal officials still emanates from a basic governmental function: providing public safety protection to the

October 1987 / Illinois Municipal Review / Page 13

citizens of the community at a reasonable cost in fairness to the public and its employees.

Forty Years Ago

In the October, 1947 edition of the Review, the legislative report contained this entry:

"Also amended... are the following specific acts in the Cities and Villages Act... Section 7 and 19 of an act authorizing cities and villages who have received federal monies for the repair of streets, sewage systems and water systems."

Forty years later, the difficult task of paying for the cost of repairs and improvements to sewage and water systems goes on. In the last twelve months, dozens of municipalities throughout Illinois have undertaken a difficult task of planning improvements to sewage treatment plants to comply with the standards of the Illinois Environmental Protection Act and the Clean Water Act. Instead of these improvements being financed directly by the federal funds, the federal government as a source of revenue has been replaced with programs such as Build Illinois and the issuance of revenue bonds for this purpose. In the most recent legislative session. House Bill 308 (PA 85-0288) amended the Environmental Protection Act and Build Illinois Bond Act to authorize grants to municipalities for sewer and water projects and to authorize the issuance of Build Illinois Bonds for these projects. Although this may improve the ability of a municipality to finance a project without an undue burden on the ratepayers, House Bill 345 (PA 85-0358) has empowered the Pollution Control Board to consider economic benefits that may have accrued to a municipality through an unlawful operation of its sewage treatment plant. Presumably, this act will allow the Pollution Control Board to increase penalties where the violator has benefited economically from the violation.

Thirty Years Ago

In October 1957, in the column "answers to questions" in the Review, Mr. Mathews addressed two inquiries that remain difficult issues for municipalities.

"House Bill 277 which was passed at the most recent session of the legislature in effect makes the municipality liable under certain circumstances for wrongful acts of policemen. This changes the law which previously was to the effect that the municipality was not liable at all for any acts by a policeman in the performance of his duties."

In 1987, the difficult concept of liability for acts of police officers continues to haunt municipal officials. In the past year the cases of Luber v. City of Highland (151 Ill. App. 3d 758) and Hernandez v. Village of Cicero (502 N.E.2d 1226) have continued to define and refine the areas of tort immunity. Although the general rule continues to be that a municipality is not liable for wrongful acts of police officers, certain exceptions to the rule are creeping into the case law that may, over time, slowly erode the general concept of immunity.

A second comment of Mr. Mathews in October of 1957 was:

"The question who has a right to give orders to the

Page 14 / Illinois Municipal Review / October 1987

police department would depend somewhat on your ordinances, and should be referred to your city attorney. Of course, the chief of police and mayor as chief executive of the city by virtue of their offices have control over the police department."

In a somewhat twisted fashion, this question still exists today.

With the advent of collective bargaining and the establishment of the Illinois State Labor Relations Board (ISLRB), the question has become "which officers of the police department are supervisory employees exempt from collective bargaining and which are not?" In the course of the last year, the ISLRB has rendered fourteen decisions on the question of inclusion of supervisory officers in a collective bargaining unit. Of those fourteen, thirteen of the decisions went against municipalities in Illinois. Only one city, Carbondale, was able to demonstrate that its ranking officers were truly "supervisory" in nature and not subject to collective bargaining. Of the adverse rulings, three have been appealed to the Appellate Courts for further consideration.

Twenty Years Ago

In the October, 1967 issue of the Review and the predecessor to the Comments column entitled "Municipal Problems", then general counsel Frank Pfeifer wrote:

"Section 11-5-1 of the Illinois Municipal Code provides, in part, as follows:

'The corporate authorities may prohibit the sale or exhibition of obscene or immoral publications, prints, pictures, or illustrations.'

This grant of power would clearly be sufficient and ample to take care of this bothersome problem except for the First Amendment to the Constitution of the United States which guarantees freedom of speech and freedom of the press. The constitutional provision has caused real and substantial limitations upon the power of municipalities to curb allegedly obscene literature."

The column continued by discussing a May, 1967 United States Supreme Court case, Redrup v. New York, 18 L. Ed. 2d 515 and discussed the entire area of the law as "ever more perplexing."

In 1987, the "ever more perplexing" area of obscenity was still unresolved. In Pope v. Illinois (107 S. Ct. 1918) the court once again ruled on an obscenity issue relating to the "community standards" upon which obscenity is to be judged. In this most recent clarification of the body of constitutional law surrounding obscenity, the court ruled that "community standards" should not be used to decide whether certain material should be "rescued" from being labeled obscene because it has socially redeeming values. Rather, in determining whether allegedly obscene materials lack serious literary, artistic, political or scientific value, the decision should be made on the basis of a "reasonable person" test and not on a "community standards" test.

October 1987 / Illinois Municipal Review / Page 15

Ten Years Ago

The 1977 edition of the Legislative Report cited two bills of the 80th General Assembly that amended provisions of the municipal code relating to annexation. Of those two, one required a municipality to obtain the permission of the state before annexing state-owned property. Ten years later, a legislative enactment which is less than two years old, has come under fire and been amended by the legislature in an attempt to blunt its provisions.

During the 1986 session of the General Assembly, an "automatic annexation" bill was adopted. Annexations under this statute are commonly referred to as "hole in the donut" annexations. During the most recent session of the legislature, one bill (SB 66, PA 85-0009) has added an exemption from the automatic annexations when the area to be annexed permits the sale of alcohol and the annexing municipality does not. The bill has been designed to provide a one time opportunity for disconnection of property from a municipality when it meets the criteria of the bill and establishes a permanent exemption for territory of similar character.

In addition, at least two lawsuits have been filed as a result of this statute seeking diametrically opposite results. A Springfield taxpayer who was automatically annexed and subsequently disconnected by action of the city council is seeking to be reannexed to the municipality. Conversely, an industry in Champaign is seeking to have the entire statute declared invalid and is resisting attempts to have an automatic annexation of its property take effect.

Police, sewage and water treatment, labor relations, obscenity and territorial jurisdiction are issues that have confronted municipal officials for many years. Certainly, this brief list is not all inclusive of the issues that continue to recycle themselves in the arena of the legislature and courts. Even though, it may be that it is only the volume of legislative enactments and court decisions, and not the number of substantive comments, that has increased. •

Page 16 / Illinois Municipal Review / October 1987