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COMMENTS
THOMAS W. KELTY, Chief Counsel, WHERE DO WE GO FROM HERE Each year the occasion of the IML Annual Conference presents a logical end and beginning to municipal affairs in Illinois. Generally, at the time that the Conference occurs, the Legislature has completed the bulk of its work for the current year, both the Illinois and United States Supreme Courts are in recess and inferior State and Federal courts seem to be at a low level of activity. This coincidence of the Conference and these events presents an opportunity to look back over the previous year in an attempt to ascertain what has happened in the area of municipal affairs and to look forward to speculate on where the course of municipal law may go in the ensuing year. In addition, 1989 represents the close of the decade. It seems that various commentators in business, the law, and human affairs try to speculate on the course that their respective disciplines will take during the subsequent decade. Therefore, it seems particularly appropriate for municipal officials that some trends in municipal law from the 1980s be ascertained in order to provide a cursory view of the course that municipal law may take in the 1990s. A review of legislation and litigation that has surfaced during the current decade discloses the vast number of issues that were nonexistent prior to the beginning of the decade or existed in a different form. To chronicle the development of each of these areas would require volumes and detailed legal analysis which would not be particularly helpful to municipal officials. However, two areas have surfaced and evolved during the 1980s which most probably will continue to evolve and develop during the 1990s. None of these areas has its genesis during the 1980s, however, significant developments have occurred during the current decade that make them likely candidates for continued expansion through the 1990s. The areas of labor relations and property takings have each undergone significant transformations during the 1980s. A variety of actors have been involved in the evolution of these areas to their current state and it is apparent that these areas will continue to undergo transformation as the final decade of the 20th Century unfolds. LABOR RELATIONS The relationship between public employers and their employees was forever altered by the effective date of the Illinois Public Labor Relations Act on July 1, 1984. Whether this alteration of the relationship is detrimental or beneficial to the long-term welfare of public employers and public employees is still subject to discussion. Up to the current time, it appears that the course of court decisions involving public labor relations issues has favored the employees and their collective bargaining representatives. Since the adoption of the Act, challenges to both the Act and the activities of employers and employees have taken place in the Illinois courts. One of the earliest challenges to the Act was brought by the Illinois Municipal League in the case of Illinois Municipal League v. Illinois State Labor Relations Board (140 Ill.App.3d 592, 488 N.E.2d 1040, 94 Ill.Dec. 793). In that case, the League challenged the constitutionality of the Act but was preemptively stricken from litigating the merits of the cause on technical grounds. No other municipal case has attacked the overall validity of the Act as applied to municipalities. Only one decision. County of Kane v. Carlson, 140 Ill.App.3d 814, 489 N.E.2d 467, 95 Ill.Dec. 246, has challenged the constitutionality of the Act. However, this challenge occurred on a separation of powers theory between the legislative judicial branches of State government. Subsequent to these initial challenges to the Act, the litigation battleground moved to two areas. First, challenges to employee organizations asserting that they were "labor organizations" within the meaning of the Act were challenged by municipalities in an attempt to exclude certain types of organizations from being certified as bargaining entities for public employees. Second, the inclusion of certain supervisory personnel of September 1989 / Illinois Municipal Review / Page 19 police and fire departments was challenged in an attempt to retain those supervisors as a part of management as opposed to membership in the labor organization. In both areas, Illinois municipalities have not faired well. With respect to certification of labor organizations, the Village of Oak Park and the cities of Chillicothe and Peoria have each been involved in reported cases which recognized loosely organized groups of employees as "labor organizations" for the purposes of the Act. In each of these cases, Appellate Courts have relied on the historical relationship between the organization and the municipality in determining whether a "labor organization", within the meaning of the Act, exists. In fact, the Third District Appellate Court went so far as to find an employee organization which had no membership requirements or formal structure to be such an organization. In Chillicothe v. State Labor Relations Board, 165 Ill.App. 217, 518 N.E.2d 734, 116 Ill.Dec. 112, the Court found that a group of employees which had conducted discussions with the City regarding annual budgetary appropriations for payment of wages and benefits to employees is a "labor organization." Thus developed the concept of "historical recognition." The results of litigation with respect to supervisory inclusion of police and fire officers as members of a labor organization has been nearly as bleak. However, this area of labor relations law shows signs of changing to a more balanced approach than was previously employed by the State Labor Relations Board and Illinois Appellate Courts. Labor organizations consistently sought to include in their membership certain officers of police and fire departments above the rank of patrol person or fire fighter. Municipalities have resisted this effort to include these individuals in labor organizations citing the need for an efficient management command structure that was controlled by the municipality independent of the collective bargaining process. Early cases in this area adopted a strict reading of the definition of "supervisor" contained in the Act. This narrow reading resulted in a number of decisions placing certain rank officers of fire and police departments in labor organizations. However, the more recent trend has been to adopt a more balanced approach. In 1986, State Labor Relations Board member Claire Manning wrote a stinging dissent in an action before the State Labor Relations Board, City of Alsip, 2 PERI Paragraph 2038 (ISLRB 1986). This dissent contended that the test for supervisory inclusion was being improperly applied by the Board by placing too much weight on the amount of time spent in particular activities by the supervisors rather than analyzing the character of their duties. This position was adopted by Illinois Appellate Courts in 1988 in two cases. In the City of Freeport v. Illinois State Labor Relations Board, 169 Ill.App.3d 151, 523 N.E.2d 214, 119 Ill.Dec. 746, and City of Peru v. Illinois Page 20 / Illinois Municipal Review / September 1989 State Labor Relations Board, 167 Ill.App.3d 284, 521 N.E.2d 108, 118 Ill.Dec. 40, Appellate Courts found in favor of municipalities on the supervisory inclusion issue. More recently, in Village of Rantoul v. Fraternal Order of Police, S-RC-89-50 (ISLRB 1989), the supervisory inclusion issue ended in a draw. In Rantoul, police lieutenants were placed outside of the labor organization as part of management and police sergeants were included within the labor organization. This finding before the ISLRB represents a recognition of Board member Manning's dissent in Alsip and the position taken by Illinois Appellate Courts in its most recent opinions. (Later, however, the employees voted against union recognition). Another area pertaining to labor relations outside of the scope of the State Labor Relations Board and the Public Employees Collective Bargaining Act is the area of affirmative action. Recently, I have discussed two cases in this column pertaining to the affirmative action rights of employees that were decided during the most current term of the Supreme Court. These affirmative action decisions (Croson v. Richmond and Martin v. Wilks) represent an alteration in the course of affirmative action laws enunciated by the Supreme Court. Like the most recent decisions of the ISLRB, these Supreme Court decisions appear to adopt a more balanced approach in the consideration of labor and employee related questions by recognizing the interests of all parties to the litigation. The trends disclosed by public employee labor law in the 1980s are mixed. It appears that the decade is concluding with a more balanced approach by the courts to public employee labor questions. However, it will be necessary for municipalities to continue to vigorously pursue representation, supervisory inclusion, affirmative action and other labor relation questions before regulatory bodies and the courts to ensure that this balanced approach continues. PROPERTY-TAKING ISSUES The Fifth Amendment to the United States Constitution contains a brief but powerful control on all units of government from the Federal government to the smallest unit of government in the United States. The Amendment provides, in part, "nor shall private property be taken for public use, without just compensation." This decade has seen the United States Supreme Court announce two opinions which represent a fundamental alteration in the application of this amendment to states and local units of government. In 1988, the Supreme Court decided the cases of First English Evangelical Lutheran Church v. City of Los Angeles, 483 U.S. 825,107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) and Nollan v. California Costal Commission, 483 U.S. 425, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). These cases fundamentally alter the interpretation of the Fifth Amendment and by so doing place a potentially greater burden on units of government throughout the United September 1989 / Illinois Municipal Review / Page 21 States. In First English, the United States Supreme Court clearly and unequivocally held that compensation must be paid by the government for "regulatory" takings. In that case, the Court held that once a regulatory taking of property is found, the Fifth Amendment requires compensation even if the "taking" is temporary. A repeal or other nullification of the regulatory taking is insufficient to permit the government from avoiding the compensation requirement. The potential effect to municipalities was recognized by the Supreme Court when it wrote in the opinion that its decision would "undoubtedly lessen to some extent the freedom and flexibility of land-use planners and governing bodies of municipal corporations when enacting land use regulations," but asserted that those consequences "necessarily flow from any decision upholding a claim of constitutional right." To compound the difficulty in this area, the Court followed this opinion with Nollan v. California Costal Commission. In Nollan, the Court ruled that a land use regulation constitutes a taking when it conditions a use upon some concession of property rights that does not further or is unrelated to the government police power purpose advanced as justification for the use prohibition for which the condition is substituted. The Nollans had decided to replace a beach front residence owned by them with a new residential structure of larger size. The California Costal Commission granted a permit for construction of the new residence but required that the Nollans grant an "access easement" across their lot in exchange for the permit. In their law suit, the Nollans argued that the easement condition was a taking by the Costal Commission requiring compensation. The United States Supreme Court agreed with the position of the Nollans. In its opinion, the Court establishes a test which reviews the connection between the public purpose of the regulation and the means used for advancing that goal. Applying the test to the Nollans, the Court held that requiring property owners to provide a public beach access easement as a condition to receiving a development permit lacked a sufficient connection to the alleged public purposes of protecting the public's ability to see the beach, preventing beach congestion and helping the public to overcome psychological barriers to using the beach. Both of these cases illustrate a simple point. The United States Supreme Court is now inclined to strict construe the just compensation clause of the Fifth Amendment resulting in stricter regulation of municipal land use control. The application of these decisions to Illinois municipalities could result in the invalidation of some practices previously employed to obtain concessions from developers and in the use regulations adopted by Illinois municipalities. Since the promulgation of these opinions, no Illinois court has had occasion to apply them to existing Illinois law. However, undoubtedly such challenge will come. This fundamental change in the interpretation of the Fifth Amendment could signal a trend for the 1990s which requires much more exacting standards to be applied in land use control. As stated at the outset, no brief article can adequately discuss all of the areas that have affected the course of municipal governance. However, these two areas are indicative of the continuing evolution of municipal law. As the beginning of a new municipal year and decade unfolds, these areas should remind all municipal officials that municipal law is a constant changing and evolving environment. To meet the challenges presented by this evolution, municipal officials must continue to be dedicated, thoughtful and vigilant. •
Page 22 / Illinois Municipal Review / September 1989 |
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