PERSONNEL; DRUG TESTING;
AGE AND THE AGED; VEHICLE REGULATION

By THOMAS W. KELTY, Chief Counsel
Illinois Municipal League

In last month's article I discussed several items that may be pertinent to many municipalities throughout the state which represented a kind of "grab bag" of varying subjects. This month the focus of these "Comments" are on recent personnel developments and certain legislation of particular interest.

EMPLOYEE DRUG TESTING
Taylor v. O'Grady
(To be reported at 669 F. Supp. 1422),
56 U.S. L.W. 2230

Judge Susan Getzendanner has struck down a compulsory urine testing program of the Cook County Department of Corrections (DOC) which is violative of the Fourth Amendment to the United States Constitution.

In an opinion dated September 22, 1987, Getzendanner held that the testing did not promote the government's interest in detecting on-the-job impairment because the tests employed by the DOC did not reveal when the employee ingested the drug or whether his or her senses were impaired when the samples were given.

The court was not persuaded by the three statements of governmental interest that the Cook County DOC sought to protect by imposing the program. These interests were: (1) in preventing correctional officers from smuggling contraband into the prison; (2) in having an unimpaired work force; and (3) in maintaining the public's perception of the integrity of correctional officers as law-abiding law enforcement officials.

According to the opinion, the testimony indicated that only three chronic abusers of illegal drugs were likely to be working at the prison at any one time, and it found that testimony by county officials did not show that drug abuse among DOC employees was in fact any more prevalent. In balancing the employee's privacy interest against the county's asserted interest, the court ruled that the county failed to show that mandatory drug testing was a "reasonable" search under the Fourth Amendment. It says that the evidence did not show that the DOC employee drug problems were so pervasive that they could not be controlled by less intrusive means such as the improved supervision of employees or testing on the basis of reasonable suspicion of drug use.

HUMAN RIGHTS—AGE DISCRIMINATION
Senate Bill 256 (Public Act 85-748)

This Public Act has amended the Illinois Human Rights Act by deleting four words and adding two. However, the potential impact to municipal and other governmental employers is much more substantial than the scope of the amendment would indicate.

Along with the addition of two other sections to the Human Rights Act, this Act amends the definition of "age." Previously the statutory definition read as follows:

February 1988 / Illinois Municipal Review / Page 13

"'Age' means the chronological age of a person who is forty but not yet seventy years old."

"'Age' means the chronological age of a person who is at least forty years old."

This amendment brings the Illinois Human Rights Act into agreement with the Age Discrimination and Employment Act and similar amendments that were made by the Age Discrimination and Employment Amendments of 1986 (Public Law 99-592) by the United States Congress.

The effective impact of these amendments is to remove the upper limit of seventy years of age thereby changing the coverage of the Act from those persons between age forty and seventy to any person above age forty irrespective of the upper age.

No longer will mandatory retirement provisions which cause a required retirement at age seventy be permissible by municipalities or other employers. Three exceptions to this general rule continue to exist subsequent to this amendment. The first exception is contained in language which has been added to Chapter 68, paragraph 2-104. Former subsection (F) entitled "Apprenticeship Programs" has been amended to avoid application of the amendments until the expiration of a collective bargaining agreement containing contrary provisions with respect to apprenticeship or January 1, 1990, whichever occurs first. The second exception relates to the Bona Fide Occupational Qualifications (BOQ) that are necessary to perform the employee's job. For example, if a position requires that an employee possess certain physical skills in the performance of duties and the employee is unable to perform the duties as a result of physical deterioration brought on by the aging process, then the employee could be removed from the position. For discussion of Bona Fide Occupational Qualifications see Dothard v. Rawlinson (1977), 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d786. The final exception is contained in paragraph 2.104 (E) (2) of Chapter 68. This paragraph authorizes the "(e)ffecting of compulsory retirement of any employee who has attained sixty-five years of age but not seventy years of age ..." under specified conditions. The conditions are: (1) the employee must have been in a "bona fide executive or high policy making position" for two years preceding retirement; and (2) the employee must be entitled to "an immediate nonforfeitable annual retirement benefit" that has a value of at least $27,000. The method for determining the value of certain types of plans other than typical pension plans is prescribed in regulations promulgated by the Department of Human Rights. Municipalities which had previously used a mandatory retirement age of seventy should consult with their municipal attorneys to determine the exact impact of this Act on their retirement scheme.

NURSING HOMES
House Bill 2852 (Public Act 85-980)

The legislature has chosen to amend Article XI, Division 22 of the Municipal Code (Ill. Rev. Stat., 1985, as amended, ch. 24, par. 11-22-1), by giving the corporate authorities of a municipality the power to operate nursing homes.

This paragraph had previously granted the power only to operate hospitals or medical dispensaries on a not-for-profit basis to a municipality. The amendment extends that authority to include nursing homes. In addition, the legislature granted to a municipality operating a nursing home the power "to borrow money, execute a promissory note or notes, execute a mortgage or trust deed to secure payment of such notes or deeds, or to execute such other security instrument or document as needed, and pledge real and personal nursing home property as security for any such promissory note, mortgage or trust deed; and issue revenue or general obligation bonds."

With the ever-increasing age of the population in Illinois and throughout the United States, this power will become more important in the future as municipalities seek to provide adequate nursing home care for the elderly citizens of their community.

INSPECTION OF PERSONNEL RECORDS
Spinelli v. Immanuel Luthern Evangelical
Congregation, Inc.
(118 Ill. 2d 389,113 Ill. Dec. 915, 515 N.E.2d 1222,
43 Ed. Law Reporter 287)

In this case (decided November 16, 1987), the Illinois Supreme Court held that "An Act to permit employees to review personnel records ..." (Ill. Rev. Stat., 1985, as amended, ch. 48, pars. 2001-2012) was unconstitutionally vague.

The Act was designed and enacted by the legislature to provide employees with a statutory right to inspect their personnel records and to obtain copies of certain information. Included within the Act were seven excep-

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tions which prevented certain types of information from being available for review by the employee. Spinelli filed this action after Immanuel failed to renew her employment contract and similarly failed to allow her to examine certain portions of her file. The portions that she was not allowed to review allegedly fell within one of the exceptions which provides that an employee may not inspect "letters of reference for that employee."

The McHenry County Circuit Court entered a judgment in favor of Spinelli and the school appealed to the Appellate Court. At the appellate level the statute was found to be held unconstitutionally vague and the Illinois Attorney General was permitted to intervene and appeal.

Upon appeal to the Supreme Court, it was held that the statute was unconstitutionally vague. In its opinion, the court found that:

"(W)e do not believe that an employer of ordinary intelligence can determine with reasonable certainty which personnel documents are, or are not, subject to disclosure. We therefore agree with the Appellate Court that the Act is vague and uncertain and, therefore, is unconstitutional in that it violates the due process rights of employers."

The court continued by disposing of certain other issues that were raised in an appeal which was consolidated with Spinelli for the purposes of decision (Kamrath v. Board of Education of School District 150, Peoria County).

It is certainly probable that the legislature will attempt to amend the statute to overcome the objections of the court set forth in this opinion leading to a finding that the Act is unconstitutional. However, until that time, the Act is invalid and cannot be relied upon by employees seeking to review their personal personnel records.

INOPERABLE MOTOR VEHICLES
Senate Bill 77 (Public Act 85-163)

This Act expands the scope of municipal powers in an area that is troublesome for many communities around the State of Illinois. Inoperable motor vehicles located on private property are oft times an eyesore and in some cases can create a hazard to public health or safety.

Previously, a municipality had the power pursuant to paragraph 11-40-3 of Chapter 24, Ill. Rev. Stat., 1985, as amended, to, by ordinance, "declare all inoperable motor vehicles, whether on public or private property and in view of the general public, to be a nuisance and authorize fines to be levied for the failure of any person to obey a notice received from the municipality which states that such person is to dispose of any inoperable motor vehicles under his control." The amendment grants the power to the municipality to amend its ordinance or to include in a new ordinance the authorization for a law enforcement agency to remove a vehicle after seven days following the issuance of a notice that an "inoperable" motor vehicle must be removed.

Under the old law, the municipality could issue a notice and seek a fine against any person who failed to obey the notice. However, the statutory power did not enable the municipality to rectify the problem. Effectively, the municipality was stuck in a position where it could declare the nuisance and fine for failure to abate the nuisance but had no power to resolve the problem. Now, under this Act, the municipality can take action after a period of seven days to eliminate the vehicle and thereby abate the nuisance.

The Act contains one other amendment that will operate to defeat potential arguments of a person who is charged under this paragraph. The paragraph previously exempted historic vehicles over twenty-five years of age. Potentially, a person charged under this paragraph could argue that the motor vehicle (whether operable or not) was over twenty-five years of age and therefore exempted from the provisions of the paragraph. The Act amends the exemption to provide that only operable historic vehicles are exempt. Certainly these two amendments to the statute will enable some municipalities to deal with the troublesome situation that junk cars have caused in the past.

Once again, space limitations prevent me from reaching the bottom of the stack. Next month, I will conclude this series of articles containing snippets of important information for municipalities with a discussion of a case invalidating the Preference Act, municipal omnibus voting and other items of interest. •

February 1988 / Illinois Municipal Review / Page 15