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HomeMy WebLinkAboutCOW Agenda Packet 03/09/2004 COMMITTEE OF THE WHOLE AGENDA Meeting Location: Mt. Prospect Community Center 1000 West Central Road Meeting Date and Time: Tuesday, March 9, 2004 7:00 p.m. I. CALL TO ORDER. ROLL CALL Mayor Gerald L. Farley Trustee Timothy Corcoran Trustee Michaele Skowron Trustee Paul Hoefert Trustee Irvana Wilks Trustee Richard Lohrstorfer Trustee Michael Zadel II. ACCEPTANCE OF MINUTES O.FFE.I;JV,RARY24, 2004 - Staff requests deferral CITIZENS TO BE HEARD III. IV. REVISED CURFEW ORDINANCE A recent Seventh Circuit Court of Appeals decision declared an Indiana curfew law to be unconstitutional on its face, and ordered that it not be enforced. Since Seventh Circuit decisions are binding on Illinois jurisdictions both the Illinois Curfew.Act and loc(iiordinances like ours, must be reviewed and amended to eliminate any defects. The attached draft ordinance attempts to cure defects with our current local code. Also attached is a memorandum explaining the Court's opinion. The Village Attorney will be present to answer questions and facilitate discussion. V. HEARING OFFICER/PUBLIC SAFETY OFFICER EMPLOYEE DISABILITY ACT In 1997, the Illinois Legislature passed a law providing that any police officer or firefighter who suffered a "catastrophic injury" while performing certain duties is entitled to have the employer provide free medical coverage for life. In 2003 the Illinois Supreme Court, in its infinite wisdom, declared that any injury which resulted in a line of duty pension was by definition "catastrophic." This Supreme Court case raised the possibility that every public safety employee who went out on a line of duty disability pension would be entitled to medical coverage for life. This could be a very expensive proposition. However, the statute states that only catastrophic injuries which occur while engaged in very specific activities are covered by the Act. The "qualifying NOTE: ANY INDIVIDUAL WHO WOULD LIKE TO A TTEND THIS MEETING BUT BECAUSE OF A DISABILITY NEEDS SOME ACCOMMODA TI()N TO PABTícípjfTÊ~.S¡:¡oui¡j'c(JNTAcTtHEVILLAGE MANAGER'S OFFICE AT 100 SOUTH EMERSON, MóiiNiÞkôsPECT, ILLINOis 60056, 847/392-6000, EXTENSION 5327, TDD #847/392-6064. activities" are (1) response to fresh pursuit; (2) response to an emergency; (3) injury by another's unlawful act; and (4) investigation of a criminal act. The Village Attorney was asked to explore ways to assure that the results of this case do not cause any more expense to the Village that are absolutely necessary. -r:he attached draft ordinance is an attempt to address the problem. It provides that the Village Manager will conduct a hearing to determine whether the catastrophic injury occurred during one of the above stated qualifying activities. Any challenge to the Manager's decision would have to be by Administrative Review in the Circuit Court where the Manager's decision is entitled to a presumption of validity. The Village Attorney will be present to answer questions and facilitate discussion. VI. CREATION OF A CHARITABLE VILLAGE FOUNDATION Mayor Farley raised this item as a 2004 Committee of the Whole discussion topic. Donations currently made to the Village do not enjoy tax-deductible treatment under Internal Revenue Service regulations. In order to establish such favorable tax treatment, and thereby encourage residents and businesses to support civic and community initiatives, a separate, wholly non-profit corporation would need to be organized to handle, account for and distribute said contributions. The recently discontinued (for budget reasons) Winter Festival Parade is an example of a civic initiative that could be supported in whole or in part by such a foundation. The purpose of this evening's discussion is to gain an initial indication of support for such a concept and discuss the basic mechanics of creating and operating such a foundation. The Village Attorney will be present to answer questions and facilitate discussion (no back-up material). VII. DISCUSSION OF MAYOR PRO TEM PROTOCOL This topic was discussed at the January 13, 2004 Committee of the Whole meeting. The attached, reworked draft reflects the direction given to staff at the January 13, 2004 meeting. On August 19,2003, the Mayor and Board of Trustees passed Ordinance 5364 amending the Village Code with regard to the appointment of a "Mayor Pro Tem." As of this date, a Mayor Pro Tem has not been designated using the new protocol. There has been a desire expressed by Board members to further discuss potential refinements to the new protocol. Included here is the Committee of the Whole Agenda verbiage from the original presentation of the topic on July 8, 2003: "The Village Code currently provides for the selection of a Mayor Pro Tem to serve in the official capacity of the Mayor in times of hislher absence or disability. The current protocol requires official action by the Village Board at one of its regular business meetings. Historically, the Mayor Pro Tem position has been established in the narrow circumstance of presiding over official meetings of the Village Board. Once the meeting has concluded, the status of Mayor Pro Tem is extinguished. In this day and age of extended travel capabilities, homeland securing issues and the potential suddenness with which the need for a Mayor Pro Tem may arise, staff would propose that the Village Board review the current protocol and consider an expanded and more definitive protocol to cover not only official Village meetings but also those periods where the current Mayor may be out of town and unavailable for extended periods of time. Attached is a recent survey of Northwest Municipal Conference communities and how they handle Mayor Pro Tem protocol. It appears that the protocol is somewhat unique to the culture of each community's philosophical viewpoint. In some cases, the Mayor has the ability to appoint a stand-in. In other cases, the Village Board must act on a case-by-case basis (as does Mount Prospect). In the case of Hoffman Estates, a semi-permanent Mayor Pro Tem is established from among Village Board members and serves a set term. The purpose of Tuesday evening's discussion is to engage in an initial philosophical discussion that will, hopefully, provide some direction to staff as how to proceed or not to proceed, as the case may be with drafting a new protocol. Appropriate staff will be on hand to answer questions and facilitate discussion. VIII. VILLAGE MANAGER'S REPORT IX. ANY OTHER BUSINESS X. ADJOURNMENT CLOSED SESSION PERSONNEL 51LCS 120/2 (c) (2). "Collective negotiating matters between the public body and its employees or their representatives, or deliberations concerning salary schedules for one or more classes of employees." PROPERTY ACQUISITION 5 ILCS 120/2 (c) (5). "The purchase or lease of real property for the use of the public body." LITIGATION 5 ILCS 120/2 (c) (11). "Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting." LAW OFFICES RINDA Y. ALLISON TERRENCE M. BARNICLE JAMES P. BARTLEY THOMAS P. BAYER JENNIFER C. CHAVEZ GERARD E. DEMPSEY MICHAEL J. DUGGAN JAMES V. FEROLO SUZANNE M. FITCH E. KENNETH FRIKER ROBERT R. HALL, JR. KATHLEEN T. HENN EVERE'ITE M. HILL, JR. MICHAEL T. JURUSIK JACOB H. KARACA KLEIN, THORPE AND JENKINS, LTD. SUITE 1660 20 NORTH WACKER DRIVE CHICAGO, ILLINOIS 60606-2903 ORLAND PARK OFFICE 15010 S. RAVINIA AVE., SUITE 17 ORLAND PARK, IL 60462.3162 TELEPHONE (708) 349.3888 FACSIMILE 1708) 349.1506 PATRICK A. LUCANSKY LANCE C. MALINA MICHAEL A. MARRS THOMAS M. MELODY JANET N. PETSCHE DONALD E. RENNER, III SCOTT F. UHLER GEORGE A. WAGNER DENNIS G. WALSH JAMESG. WARGO BRUCE A. ZOLNA TELEPHONE (312) 984-6400 FACSIMILE (312) 984-6444 FACSIMILE (312 606-7077 OF COUNSEL JAMES A. RHODES RICHARD T. WIMMER WRITER'S DIRECT DIAL WRITER'S E.MAIL 312-984-6468 gawagner@ktinet.com February 24,2004 VIA FAX (847) 392-1070 AND U.S. MAIL Richard Eddington Chief of Pol ice Mount Prospect Police Department; 112 E. Northwest Highway Mount Prospect, Illinois 60056 Re: New Curfew Law Court Decision Í' D Ch' fEdd' '~). ~ V"-' ear Ie mgton: ~~ This letter is written to inform you of a recent Seventh Circuit Court of Appeals decision that declared an Indiana curfew law to be unconstitutional on its face, and ordered that it not be enforced. Hodgkins v. Peterson, 2004 WL 99028 (7th Cir. 2004). This decision will likely effect the enforcement of the Illinois Child Curfew Act, 720 ILCS 555/0.01 et seq., (the "Illinois Curfew Law"), as well as local curfew ordinances. Hodgkins involved a First Amendment claim that the Indiana state curfew law, among other things, was unconstitutional because it lacked exceptions for First Amendment activities. The law established certain times for curfew, made the offense a delinquent act and provided criminal liability for the parent. In addition, it established certain exceptions, but only wherea child was: 1) accompanied by the child's parent, guardian or custodian; or 2) accompanied by an adult specified by the child's parent, guardian or custodian; or 3) participating in, going to, or returning from: A) lawful employment; B) a school sanctioned activity; or C) a religious event. 1 The statute was amended while the appeal was pending. The amendment created express affirmative defenses to a curfew charge f~r individuals engaged in expressive activity protected by the First Amendment, including attendance at political events. The Court began by restating that minors have First Amendment protections, and acknowledging that minors have First Amendment rights. The Court held that the Indiana law could result in a minor violating the curfew law by being out too late at a political rally (which would be protected speech), and that the law was not narrowly tailored to advance the Indiana legislature's significant interests in protecting the safety ofminors and preventing crime. Further, the Court held that the Indiana legislature's preemptive effort to avoid the First Amendment 0 bj ection, by amending the law to include such exceptions as "affirmative defenses," failed because affinnative defenses are not' elements of the offense. Therefore, an officer is not compelled to determine if an affirmative defense applies before subjecting a minor to arrest or citation. In light of the Hodgkins decision, we have reviewed the Illinois Curfew Law and the Village's local curfew ordinance. The Illinois Curfew Law only recognizes exceptions where the child is "accompanied and supervised by a parent, legal guardian, or other responsible companion at least 18 years of age approved by a parent or legal guardian or unless engaged in a business or occupation which the laws ofthe State authorize a person less than 17 years of age to perform." The State law does not provide any exe;eptions for First Amendment activities, such as political or religious events, nor does it require an officer to inquire, prior to arrest, to insure that such exceptions do not apply. Therefore, it is our opinion that the State law would not survive a constitutional challenge after Hodgkins. The Village's curfew ordinance, which is attached in full, parallels the State law, except for the additional exception for persons in attendance at or traveling directly home from a school, place of worship or a not-for-profit community organization sponsored activity. This last exception arguably addresses the types of First Amendment rights that the Court in Hodgkins was concerned about, although the ordinance may still be subject to challenge for being too narrow. Accordingly, two issues arise as a result of the Hodgkins decision: 1) Can the State law or Village Code be amended to satisfy Hodgkins?; and 2) What should the Police Department do about curfew enforcement in the interim? Our opinions and recommendations are as follows: First, we believe that the Illinois Curfew Law and the Village's curfew ordinance can easily be amended to satisfy Hodgkins. The new curfew ordinance would add explicit exceptions from curfew enforcement for minors engaged in protected First Amendment activities, and make it equally clear that the lack of any exception is an element oftheoffense and part of the determination ofthe existence of probable cause for arrest purposes. Since the Village has no control over the amendment of the State law, we recommend that the Village act promptly to adopt a new ordinance in compliance with the requirements of Hodgkins. Please contact us if you would like us to prepare an amended curfew ordinance for the Village Board's consideration. Second, in the interim, we recommend that the Police Department not enforce the current Illinois Curfew Law or the current Village curfew ordinance. This includes arresting a child and turning the child over to a parent or legal guardian, as in a station adjustment, regardless of whether or not a citation is issued. However, we realize that there may be certain situations where curfew- type enforcement may be necessary for the health and safety of minors and/or the community. In such a case, we recommend that officers first consider other violations that may apply as an alternative reason for an arrest, which avoids the curfew issue. Additionally, a minor's agreement 2 to return home, or a parent or guardian's agreement in advance to allow the officer to transport the minor to the police station for pick-up, may be justified as consensual. Assuming that there is no other applicable charge and no apparent consent, but it is deemed necessary to enforce curfew due to unusual circumstances, we recommend that any enforcement be conducted in accordance with a policy that incorporates the requirements set forth in Hodgkins. Such a policy would include the following: 1. Policy It is the policy of the Police Department to insure the rights of minors, while enforcing the curfew laws. ' II. Procedure: A recent Seventh Circuit Court of Appeals decision has declared an Indiana curfew law to be unconstitutional on its face, and has ordered that it not be enforced. Hodgkins v. Peterson, 2004 WL 99028 (7th Cir. 2004). Since the Illinois Child Curfew Act, 720 ILCS 555/0.01 et seq., and Village's curfew ordinance, (Section 23.604 of the Village Code), may not be deemed to comply with the requirements set forth in that decision, arrests should not be made for curfew violations under either the State law or Village ordinance. Instead, enforcement of other applicable State laws and Village ordinance violations should be considered when an officer confronts a typical curfew violation. Additionally, the advance consent of the minor or of the parent or lawful guardian will allow an officer to insure that a minor, who would nonnally be in violation of curfew, is returned safely to hislher parent or legal guardian. There may be unusual circumstances that merit the enforcement of curfew where the above options are not present. In that case, the officer should seek approval from a supervisor to arrest and/or cite the minor for violation of curfew under State law or Village ordinance. In addition to a supervisor's approval, the officer must take reasonable steps to insure that the age and time limitations apply, as well as the following exceptions, regardless of whether or not such exceptions are included in the language of the State law or Village ordinance: In addition to the specific exceptions set forth in State law or the Village's curfew ordinance (Section 23.604 of the Village Code) the officer must consider the. following additional exceptions announced in Hodgkins: 1. Is the child, who is otherwise subject to the State law/Village curfew ordinance: a. in an emergency involving the protection of a person or property from an imminent threat of serious bodily injury or substantial damage; b. participating in, going to, or returning from: 1. an activity involving the exercise of the child's rights protected under the First Amendment to the United States Constitution or Article 1, Sections 3, 4, and 5 of the Constitution of the State of Illinois, or both, such as freedoms of religion and speech and the right of assembly, to include, but not be limited to: 3 1. a religious event, including, but not limited to, prayer and vigil services; or 2. a political event, including, but not limited to, observing or influencing a legislative session and/or attending political rallies. 11. an activity conducted by a nonprofit or governmental entity that provides recreation, education, training or other care under the supervision of one (1) or more adults. c. engaged in interstate or international travel from a location outside Illinois to another location outside Illinois with the permission of a parent or legal guardian. 1 Prior to aITesting or citing a child for a curfew violation, the officer must make reasonable inquiry to determine whether any of the exceptions contained in the Illinois Child Curfew Act, the Village's curfew ordinance or those set forth above apply. An officer shall issue a citation or make an arrest for curfew only if the officer has reasonable grounds to believe that the child has violated the State law/Village curfew ordinance and that no exceptions, as referenced above, apply. *** While this policy will not necessarily satisfy a judge's detennination that the State law or Village ordinance are valid, it will allow the Village to continue to protect minors and the community by enforcing curfew under unusual circumstances, subject to the safeguards enunciated in Hodgkins. Realizing the negative impact on the public safety and welfare if curfew is not enforced under unusual circumstances, and recognizing that a challenge to the Hodgkins decision may be undertaken, (although the Indiana Attorney General has indicated that an amendment to the State law, as opposed to an attempt to appeal the decision to the U.S. Supreme Court, is his recommended course of action) we believe that this policy will provide a strong basis for a defense of qualified immunity in the event of a civil rights lawsuit based upon enforcing curfew in accordance with this policy. I hope that this information is helpful. If you have any questions, please feel free to call. Very truly yours, KLEIN, ]:'HORPE AND JENKINS, LTD. qt. .~ Ge~~~~ cc: Michael J anonis, Village Manager Everette M. Hill, Jr., Village Attorney @PFDesktop\::ODMAlMHODMNCH2KDCOI ;iManage; 129516; 1 1 This exception was included in the amended Indiana law, which the Seventh Circuit reviewed in Hodgkins. It was apparently seen by the legislature as another fundamental right of a child. Therefore, we have included this exception. 4 23.602 the Use of Alcoholic Beverages by nder- age Persons", Section 13.133 .Op tion of a Motor Vehicle While in a State Impair- ment", Section 13.134 "Ope ratio of a Mo- tor Vehicle by Underage Perso s With an Alcoholic Beverage in or on e Vehicle; When the Underage Person is Impaired Due to Alcohol or has Alcoh in the Sys- tem or is Operating the Vehi e in Violation of a Restriction Pursuant to this Chapter., Section 23.109 "Firearm or Facsimile Weapons., Section 23.603 Possession and Purchase by Minors Pr íbited., Section 23.604 .Curfew", Sectio 23.606 "Firearms Regulation with Respe t to Schools and Minors., Section 23.60 .Vandalism", Sec- tion 23.608 "Loitering for the Purpose of Causing Street Gan Activity or Recruit- ment IS Prohibited", ection 23.609 "Loiter- ing for the Purpose f Illegally U~ing, Pos- sessing or Selling r Buying Cannabis or Controlled Substa ces is Prohibited", and Section 23.612 aintaining Public Nui- sance. of this C de or any portion of the illinoIs Substan s Abuse Act, Illinois Can- nabis Control ct or the Illinois Criminal Code shalf in dition to any other penalties be required perform not less than fifty (50) hours of community service, and if not a student at he school the person shall be prohibited om entering the school for a pened of 0 (2) years. In addition, if the offense curred within two hundred feet (200') of park the person shall be prohibit- ed from entering the park for a period of two (2) ears. The enhanced penalties set forth i this Section shall be mandatory, excep that if the offense occurs within a resid nce located in the safe zone, then the enh ced penalties may be imposed in the dis etlon of the court. (Ord. 4752, 9-5 1995; Ord. 4795, 5-7-1996) 23.604 23.603: POSSESSION AND PUR BY MINORS PROHIBIT A. Possession By Minors P. ohibited: It shall be unlawful for an~ erson under eighteen (18) years of ge to possess any tobacco produ within the Vil- lage. B. Purchase By inors Prohibited: It shall be unla I for any person under eighteen (1 years of age to pur- chase tob co products, to misrepre- sent the' identity or age, or to use false altered identification for the purp e of purchasing tobacco prod- uc . (Ord. 4752, 9-5-1995; Ord. 4914, -1998) 23.604: CURFEW: Notwithstanding any- thing contained to the contrary in this Code, the following shall apply with respect to curfew: A. It is unlawful for a person less than seventeen (17) years of age to be present at any public assembly or in any public building, park, sidewalk, street, or highway or other public place between: 1. Eleven o'clock (11 :00) P.M. on Sunday, Monday, Tuesday, Wednes- day and Thursday, and six o'clock (6:00) A.M. on the following day; 2. Eleven fifty nine o'clock (11 :59) P.M. Friday through six o'clock (6:00) A.M. Saturday; and 3. Eleven fifty nine o'clock (11 :59) P.M. on Saturday through six o'clock (6:00) A.M. on Sunday Vzllage of Mount Prospect 23.604 unless accompanied and supervised by a parent. B. In addition. the curlews set forth in subsection A of this Section shall not apply if the person is either: 1) en- gaged in a business or occupation which the laws of this State authorize the person to perlorm. or 2) in atten- dance at or traveling directly home from a schoof, place of worship or a not-far-profit community organization sponsored activity. c. It IS unlawful for any parent. legal guardian or other person to knowingly permIt a person in his/her custody or control to violate this Section. (Ord. 4752.9-5-1995) ~ TRt:ASCY: A. shall be unlawful for any person r the age of eighteen (18) who 1. Is e oiled in a public. private or parochia school within the corporate limits of ttì Village: or 2. Who resl S within the Village but !S enrolled in ch a school outside of Mount Prospec to absent himself or herself from a ndance at school during such perio when school is in session. without pa ntal permission or valid cause. B. A valid cause for absenc rom school shall include illness. death on the im- mediate family. other family ergen- cy or otAer causes beyond the ontrol of the person absenting himse or herself from school. provided that parental permiSSion for absence due 23.606 to such a cause is obtained, in writing, from the parent and is submitted to t e proper school authorities within t nty four (24) hours after the ab- se ceo c. A P ice officer may stop and detain a pers n whom the officer reasonably susp cts to be violating this Section a reaso able time for the purpose of verifyi g the person's identity, age. school enrollment and authority to be absent from school. The police officer shall i mediately inform the person of the rea on for the detention and that he or s e wiJl be released upon verifi- cation f authorization to be absent from sc 001. The person shall not be remove from the scene of the investi- gatory etention unless he or she refuses provide the officer with the necessa information. (Ord. 4752, 9-5-1995) 23.606: FIR ARMS REGGLATION WIT RESPECT TO SCHOOLS AND MINORS: A. Firearms In hool Prohibited: It shall be unlawful fo any person other than a law enforce ent officer to be in possession of a y firearm on the pre- mises of any p lic, private or paro- chial school. Th sole exception to this is if an adult i in possession of a firearm for the pu ose of a program or demonstration th t has been specif- ically approved by t e school authori- ties. B. Vicarious Liability: A person who provides to or permits ossession of any firearm of any kind to a person under the age of twenty 0 e (21) shall be liable to any individu who has Villal?e of .\fount Prospect ORDINANCE NO. DRAFT AN ORDINANCE AMENDING CHAPTER 23, SECTION 23.604 OF THE MOUNT PROSPECT VILLAGE CODE IN REGARD TO CURFEW BE IT ORDAINED by the President and Board of Trustees of the Village of Mount Prospect, Cook County, Illinois, as follows: SECTION 1: Section 23.604 entitled "Curfew" of Chapter 23 entitled "Offenses and Miscellaneous Regulations" of the Mount Prospect Village Code is hereby amended by deleting Section 23.604 in its entirety and inserting a new Section 23.604 entitled "Curfew" to be and read as follows: "23.604 CURFEW: Notwithstanding anything contained to the contrary in this Code, the following shall apply with respect to curfew: (a) It is unlawful for a person less than seventeen (17) years of age (the "child") to be present at any public assembly or in any public building, park, sidewalk, street or highway or other public place between: 1. 11 :00 P.M. on Sunday, Monday, Tuesday, Wednesday and Thursday, and 6:00 A.M. on the following day; 2. 11 :59 P.M. on Friday through 6:00 A.M. on Saturday; and 3. 11 :59 P.M. on Saturday through 6:00 A.M. on Sunday. (b) The curfew set forth in subsection (a) does not apply to a child who is: 1. accompanied by the child's parent, guardian or custodian; 2. accompanied by a person at least twenty-one (21) years of age approved by the child's parent, guardian or custodian; 3. engaged in a business or occupation which the laws of this State authorize a person less than 17 years of age to perform; 4. participating in, going to, or returning from: iManage 129547 1 i. an emergency involving the protection of a person or property from an imminent threat of serious bodily injury or substantial damage; ii. an activity involving the exercise of the child's rights protected under the First Amendment to the United States Constitution or Article 1, Sections 3, 4, and 5 of the Constitution of the State of Illinois, or both, such as freedoms of religion and speech and the right of assembly, to include, but not be limited to: (1) a religious event, including, but not limited to, prayer and vigil services; or (2) a political event, including, but not limited to, observing or influencing a legislative session and attending a political rally or event. lll. an activity çonducted by a nonprofit or governmental entity that provides reèreation, education, training, or other care under the supervision of one (1) or more adults; or 5. engaged in interstate or international travel from a location outside Illinois to another location outside Illinois with the permission of a parent or legal guardian. (c) Prior to arresting or citing a child for curfew under this Section, the Police Officer must make reasonable inquiry to determine whether any of the exceptions contained in subsection (b) apply, in addition to the age and time requirements set forth in subsection (a) of this Section. A Police Officer shall issue a citation or make an arrest for curfew only if the officer has reasonable grounds to believe that the child has violated this Section and that no exceptions apply. (d) It is unlawful for any parent, legal guardian or other person to knowingly permit a person in his/her custody or control to violate this Section. SECTION 2: That this Ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form in the manner provided by law. ADOPTED this - dayof follows: ,2004, pursuant to a roll call vote as AYES: NAYS: iManage 129547 1 2 ABSENT: APPROVED by me this - day of ,2004. Gerald L. Farley, Mayor ATTEST: Velma W. Lowe, Village Clerk ,;: Published by me in pamphlet form this - day of ,2004. Velma W. Lowe, Village Clerk iManage 1295471 3 LAW OFFICES KLEIN, THORPE AND JENKINS, LTD. RINDA Y. ALLISON TERRENCE M. BARNICLE JAMES P. BARTLEY THOMAS P. BAYER JENNIFER C. CHAVEZ GERARD E. DEMPSEY MICHAELJ. DUGGAN JAMES V. FEROLO E. KENNETH FRIKER ROBERT R. HALL, JR. KATHLEEN T. HENN EVERETTE M. HILL, JR. MICHAEL T. JURUSIK JACOB H. KARACA TELEPHONE (312) 984-6400 FACSIMILE (312) 984-6444 FACSIMILE (312) 606-7077 PATRICK A. LUCANSKY LANCE C. MALINA MICHAELA. MARRS THOMAS M. MELODY JANET N. PETSCHE DONALD E. RENNER, III SCOTT F. UHLER GEORGEA. WAGNER DENNIS G. WALSH JAMES G. WARGO BRUCE A. ZOLNA SUITE 1660 20 NORTH WACKER DRIVE CHICAGO, ILLINOIS 60606-2903 ORLAND PARK OFFICE 15010 S. RAVINIA AVE., SUITE 17 ORLAND PARK, IL 60462-3162 TELEPHONE (708) 349-3888 FACSIMILE (708) 349-1506 OF COUNSEL JAMES A. RHODES RICHARD T. WIMMER MEMORANDUM TO: Mike Janonis, Village Manager Village of Mount Prospect FROM: Everette M. Hill, Jr. DATE: March 2, 2004 RE: Hearing Officer/Public Safety Officer Employee Disability Act In 1997, the Illinois Legislature passed a law providing that any police officer or firefighter who suffered a "catastrophic injury" while performing certain duties is entitled to have the employer provide free medical coverage for life. In 2003 the Illinois Supreme Court, in its infinite wisdom, declared that any injury which resulted in a line of duty pension was by definition "catastrophic." This Supreme Court case raised the possibility that every public safety employee who went out on a line of duty disability pension would be entitled to medical coverage for life. This could be a very expensive proposition. However, the statute states that only catastrophic injuries which occur while engaged in very specific activities are covered by the Act. The "qualifying activities" are (1) response to fresh pursuit; (2) response to an emergency; (3) injury by another's unlawful act; and (4) investigation of a criminal act. You have asked that we explore ways to assure that the results of this case do not cause any more expense to the Village that are absolutely necessary. The attached is an attempt to address the problem. It provides that the Village Manager will conduct a hearing to determine whether the catastrophic injury occurred during one of the above stated qualifying activities. Any challenge to the Manager's decision would have to be by Administrative Review in the Circuit Court where the Manager's decision is entitled to a presumption of validity. ¡Manage 129958 1 DRAFT ( ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 4, ARTICLE I' OF THE VILLAGE CODE TO AUTHORIZE THE VILLAGE MANAGER TO ACT AS A HEARING OFFICER TO FULFILL THE VILLAGE'S OBLIGATIONS UNDER THE PUBLIC SAFETY EMPLOYEE BENEFIT ACT (820 ILCS 320/1 ET SEQ.) BE IT ORDAINED by the President and Board of Trustees of the Village of Mount Prospect, County of Cook, State of Illinois, in accordance with its Home Rule Powers as set forth in Article VII Section 6 ofthe Illinois Constitution (1?10): SECTION 1 - FINDINGS: A. In 1997, the Illinois Legislature enacted Public Act 90-535, entitled The Public Safety Employee Benefit Act (the "Act"), which Act provides for certain benefits to Public Safety Officers, who suffer catastrophic injuries while engaged in one of the activities specified under the Act (hereinafter the "qualifying activities"), such as, the officer's responding to fresh pursuit or the officer or firefighter's response to what is reasonably believed to be an emergency. B. On March 20, 2003, the Illinois Supreme Court in a case, entitled Krohe v. City of Bloomington, 204 I11.2d 392, determined that "catastrophic injuries" under the Act shall include all injuries which result in a line of duty disability pension. c. Fire and Police Pension Boards, as a part ofthe hearing process, determine whether or not a pension applicant's injury occurred in the line of duty. However, those Pension Boards do not determine whether or not a duty-related disability also occurred while the applicant was involved in one ofthe qualifying activities set forth in the Act. D. In order to qualify for benefits under the Act, a determination must also be made that the iManage 129528 1 applicant was also disabled while engaged in anyone ofthe qualified activities, as specified under the Act. E. It is incumbent upon the Village to create an administrative process, which can and does provide a final detennination as to whether an applicant for benefits under the Act is qualified to receive them. F. It is in the best interest of the public health, safety and welfare that the Village to create an administrative process that fulfills the purpose of the Act. SECTION 2: Chapter 4, Article I, of the Village Code entitled "Village Manager" is hereby amended by inserting a new Section 4-105, which shall read as follows: 4-105 Hearing Officer for the Purpose of the Public Employee Benefits Act (820 ILCS 320/1 et seq. The Village Manager shall act as a hearing officer under the Public Safety Employee Benefits Act (820 ILCS 320/1 et seq.). The Manager shall, as hearing officer, conduct hearings and make detenninations as to whether or not any employee ofthe Village, who is subject to the Act, is entitled to the benefits provided by that Act. The decision of the Manager shall be a final administrative detennination of the Village and may be appealed to the Circuit Court under the Administrative Review Act. And renumbering the existing 4.15 "Savings Clause" as Section 4.106. SECTION 3: This Ordinance shall take effect from and after its passage and approval in the manner provided by law. The Village Clerk is hereby directed and ordered to publish this ordinance in pamphlet fonn. PASSED by the President and Board of Trustees of the Village of Mount Prospect, Cook County, Illinois, this day of ,2004. iManage 129528 1 AYES: NAYS: ABSENT: APPROVED by me this day of ,2004. Gerald L. Farley, Village President ATTEST: Velma W. Lowe, Village Clerk C:\Documents and Settings\DStrahLDOMAIN\Local Settings\Temporary Internet Files\OLK181\MP Ord - hearing under Public Safety Employee Benefit Act.DOC iManage 129528 1 DRAFT ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 1 THE VILLAGE CODE OF MOUNT PROSPECT BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: SECTION 1: Section 1.104 entitled "President Pro T em" of Chapter 1 of the Mount Prospect Village Code shall be deleted in its entirety and a new Section 1.104, entitled "Designated President Pro Tem" shall be added to Chapter 1 of the Mount Prospect Village Code which shall be and read as follows: Sec. 1.104. Designated President Pro Tern. A. Policy Statement. Good government demands, in the absence or disability of the Village President, that another E3lected official be continuously and readily available to fulfill the duties of the Office of Village President, especially in cases of emergency. The person selected to act in the stead of the VillaQe President should be an experienced and committed trustee who has an excellent record of attendance at VillaQe Board meetinQs. This person should also have a demonstrated ability to conduct and facilitate meetinQs and to make decisions in emergency situations. B. Creation of Office: Powers and Duties. There shall be in the Village an office known as Designated President Pro Tem. One Trustee shall be elected to such office and shall be authorized to perform the functions and duties the Village President is empowered to perform, but only under the following circumstances: 1. The Village President is absent from the Village and, for the purpose or implementing the authority of the Designated President Pro Tem, has notified the Village Manager's office of such absence; or 2. The Village Manager has been notified that the Village President is under a temporary disability which prevents the President from performing his or her duties; or 3. Immediate action is required of the Village President and good faith attempts by the office of the Village Manager to locate him iManage 127528 1 or her have been unsuccessful within the time in which the action is required. c. Qualifications. 1. No person shall be appointed to the office of the Designated President Pro Tem unless he or she is a duly elected or appointed trustee of the Village of Mount Prospect. 2. Any person who has filed a nominatinq petition for the office of Villaqe President shall be ineliqible to occupy the office of Desiqnated President Pro Tem. If a Desiqnated President Pro Tem files nominatinq petitions for the Office of Villaqe President. the office Desiqnated President Pro T em shall immediately and automatically become vacant and shall be filled for the remainder of the term by followinq the procedures set forth in paraqraph D "Selection." 3. A person who has not completed at least 365 days in office, as a Trustee. shall not be eliqible for nomination as Desiqnated President Pro Tem unless all of those trustees who are qualified have declined nomination for the office. D. Selection. selected as follows: The Desiqnated President Pro Tem shall be 1. The Villaqe President or any Trustee. actinq in open session. may nominate without comment. a trustee for the office of Desiqnated President Pro Tem; provided that in all instances the President shall have the riqht to make the first nomination. No Trustee may nominate or second the nomination of himself or herself. 2. Upon receivinq a second. the nominated Trustee shall become a candidate for this office. 3. Nominations shall be closed on a motion and a second. and the majority vote of Trustees present at the meetinq. 4. Discussion and consideration of the candidates and their qualifications may be discussed in open or closed session as provided by the Illinois Open Meetinqs Act. but the final vote must be taken in open version. 5. Upon the close of discussion. the Villaqe Clerk shall call the vote on each nominated candidate in the order in which the nominations were made and seconded. Abstentions shall be counted as a "No" vote. iManage 127528 1 Ballotinq shall continue until one of the candidates receives four affirmative votes of the President and Trustees votinq jointly. That person shall become Desiqnated President Pro Tern. No additional oath or bond shall be required. E. Term of Office. The initial term of office of the Designated Pro Tern shall commence on the day of appointment and terminate May 31 of 2004 or until a successor has been selected. Thereafter, the Designated President Pro Tern shall be elected at the first reqular meetinq in June, take office on July 1st and serve until May 31st of the followinq year or until a successor has been selected. The Designated President Pro Tern may be removed at any time by the affirmative vote offour trustees. If such removal occurs, a successor shall be expeditiously selected for the remainder of the term in accordance with Paraqraph D "Selection". F. Acting Village President, Vacancy. If a vacancy occurs in the office of Village President, the Designated President Pro Tern, may, in the sole discretion of the trustees, serve as Acting Village President until such time as a successor to fill the vacancy has been duly elected and has qualified; or the trustees may select a new Acting Village President at any time during the vacancy. G. Absence or Disability of Designated President Pro Tern. If anyone of the circumstances described in (1), (2) or (3) of Subsection B of Section 1.104 is found to exist as to both the Village President and the Designated President Pro Tern, the Board of Trustees shall elect one of its members to act as President Pro Tern, who during the absence or disability of the President and the Designated President Pro Tern shall, temporarily perform the duties of the President. SECTION 2: That this Ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form in the manner provided by law. AYES: NAYS: ABSENT: PASSED and APPROVED this - day of ,2004. ¡Manage 127528 1 ATTEST: Gerald L. Farley, Village President Velma Lowe, Village Clerk C:IMyFilesIMpIORDSISec1.104DesignatedProTemNewOrd.wpd ¡Manage 127528 1 21. Consideration of licensing all landlords and patterning an enforcement program similar to the Village of Schaumburg's landlord program. 22. Discussion of residential tear down re'gulations. Discussion of trends and the potential impact on the neighborhood community and consider regulations to maintain community character. 23. Discussion of requiring single-family homes to have garages as part of any new construction or renovation. 24. Consideration of a dedicated gang, crime, drug addiction and suppression unit of the Police Department of Officers dedicated specifically for drug enforcement activities. 25. Sanitary sewer services repair discus~ion. This discussion would be related to potential assistance to residents for replacement and repair of service line between the sewer main and the dwelling. Staff stated they will take these topics and assign manpower resources for research and investigation as required to bring the topics forward within general timeframes as suggested by the requestors. However, there may bE? some variation in timing depending on available resources and availability of Trustees. v. MAYOR PRO TEM DISCUSSION Mayor Farley introduced the topic by providing some general background and stating that this topic has been under discussion for a period of time. He stated since the last discussion, Trustees Wilks and Corcoran have put together suggested elements to the selection process of Mayor Pro Tem. He invited each Trustee to provide an overview of their suggestions for discussion among the Board members. Trustee Wilks provided a detailed discussion of her suggestion for selection of Mayor Pro Tem. The suggested selection process includes several nomination rounds with a final round if a consensus cannot be reached in any of the first two roUnds. Another component of the process is all discussion and voting is in open session. She also stated that the Mayor is the initiator of the nomination for consideration. Trustee Corcoran provided an overview of his selection process whereby the focus was on the qualifications of the individual to be selected. He also included minimum service requirements and a specific term in the case of the sitting Pro Tem running for higher office. He also felt the discussion regarding the candidates available for consideration should take place in closed session. General comments from Village Board members included the following items: There was extensive discussion regarding both proposals in addition to clarification of when it would be appropriate for the person running for Village Board seat and its impact on the Mayor Pro Tern position. There was also a discussion regarding the use of closed session for discussion of Trustees for ultimate consideration in open session. 3 Village Attorney Hill stated that the Board may use the closed session to discuss the selection but all action votes must take place in open session. General comments from Village Board members included the following items: There was a discussion regarding the mechanism for placing names in nomination. There was also a discussion regarding potential escape clause where there were a majority of Trustees that were either running or new members that did not meet the minimum criteria for selection consideration. It was also mentioned there would be a need to coordinate the selection of Mayor Pro Tem and the possible selection of a permanent Acting Mayor to fill out the remaining term. There was extensive discussion regarding the person making the nominations whether it is the Mayor or Trustees. There was also discussion about the possibility of a nominated individual not obtaining a second for consideration in open discussion. Attorney Hill stated as long as there is no change to how the Acting Mayor is selected for completion of existing term there is no State Statute provision impacting this process. He also stated that random selection is just to consider the actual order. It cannot be used for voting purposes or nomination purposes. All votes must be called with no secret ballots. Consensus of the Village Board was to direct staff and Village Attorney to formulate revised Ordinance provisions to include open nomination process and the use of Closed Session for discussion of potential candidates. Also includeä prbvision for the term beginning and termination at the point of Petition filing. Also there should be an exclusion for elected officials without appropriate tenure with options to alter eligible Trustees for circumstances where the minimum qualifications excludes a majority of those to be considered. Staff would prepare an additional draft for Board discussion in the near future. VI. VILLAGE MANAGER'S REPORT None. VII. ANY OTHER BUSINESS None. VIII. ADJOURNMENT There being no further business, the meeting adjourned at 8:47 p.m. Respectfully submitted, DSlrcc ~4/;.J5dJ DAVID ~HL Assistant Village Manager 4 Director Glen RAndier Water/Sewer Superintendent Roderick T. O'Donovan Deputy Director . Sean P. Dorsey Streets/Buildings Superintendent Paul C. Bures Village Engineer Jeffrey A. Wulbecker Forestry/Grounds Superintendent Sandra M. Clark Solid Waste Coordinator M. Lisa Angell Vehicle/Equipment Superintendent James E. Guenther MCUNT PRCSPECT PUBLIC WCRKS DEPARTMENT 1700 W. CENTRAL ROAD, MOUNT PROSPECT, ILLINOIS 60056-2229 PHONE 847/870-5640 F'AX 847/253-9377 TDD 847/392-1235 NOTICE THE MARCH B, 2004 MEETING OF' THE SAF'ETY COMMISSION HAS BEEN CANCELLED. THE NEXT REGULAR MEETING IS SCHEDULED F'OR MONDAY, APRIL 12, 2004 AT 7:00 P.M. AN AGENDA OR CANCELLATION NOTICE WILL BE SENT PRICR TO THIS MEETING. DATED THIS 3FtO OAY OF' MARCH, 2004. MINUTES VILLAGE OF MOUNT PROSPECT COFFEE WITH COUNCIL SATURDAY, FEBRUARY 14, 2004 9:00 a.m. Village Hall 2nd Floor Conference Room The Coffee with Council Meeting convened at 9:00 a.m. Present Trustee Michaele W. Skowron Trustee Irvana K. Wilks Village Manager Michael Janonis Chief of Police Richard Eddington Residents In Attendance Carol Tortorello Margaret Lannen Ray Rubio Peter Skolnicki David Schein Jim Uszler 223 South Elmhurst Avenue 999 N. Elmhurst Avenue 412 North Elmhurst Avenue 634 Shabonee Trail 512 Na-Wa-Ta Trail 9 S. Elmhurst Avenue Peter Skolnicki, 634 Shabonee Trail, approached the Board regarding overnight parking. He purchased his town home approximately two years ago. At the time, he had access to one additional parking space; however, that rental arrangement has been terminated. Consequently, Mr. Skolnicki is asking the Village Board to relax its overnight parking ban so as to accommodate the parking of one of his two vehicles on the street. The Board members, along with the Village Manager, expressed their reservation about changing the overnight parking ordinance. However, they did suggest to Mr. Skolnicki that he could also appear at the Citizens' Comments Session of any Village Board meeting to express his concerns and his desire for a change in the ordinance. Additionally, several options were proposed regarding contacting other town homeowners or the surrounding businesses. Mr. Janonis stated that he or Bill Cooney would contact Mr. Skolnicki with contaçtinforrnation on two þlj§ine§§<?§ th(itw§[e in relatively convenient walking distance from his home. Carol Tortorello, 223 S. Elmhurst Avenue, brought two issues she wanted to bring to the Board's attention. The first was the Public Hearing on train horn quiet zones. Village Manager Mike Janonis stated that he would be attending the hearing on the horn issue. Further, several safety requirements would be virtually impossible for the village to comply with, especially at the downtown crossings due to insufficient space. The crossing on Euclid could accommodate the Federal No Crossover Barrier as part of a four-quadrant gate system. Carol Tortorello's second issue was affordable housing. She inquired as to whether or not Mount Prospect meets the federal criteria. The federal criteria is 10% of affordable housing in a jurisdiction. Village Manager Mike Janonis advised that currently Mount Prospect has 16% housing that is identified as affordable. Consequently, Mount Prospect is already in compliance. Margaret Lannen, 999 Elmhurst. Ms. Lanne¡n isJbe¡Mênager of Randhurst Shopping Center. She provided a construction update. The construction is on time and under budget. The management firm Margaret Lannen represents is currently in negotiations for several of the out lots. Due to the sensitivity of those negotiations, she was unable to provide any further details at this time. Once the contracts are executed, she will be able to discuss more freely the tenants and their businesses. Ray Rubio, 412 N. Elmhurst, visited the Board with a concern about therumqrs tbéltR(inçlburst was going to go condominium. This was addressed by the Village Manager Mike Janonis stating that the impact of the loss of sales tax would preclude this option from being considered. The rumor has been widespread over the last two years, and especially in the last two months. David Schein, 512 NaWaTa, called two topics to the Board's attention. The first was a publication by F.E.M.A. regarding tornado resistance construction and the need to include "safe rooms" in new construction where fed~ral funds were used. Dave Shein's second issue was a proposal for an ordinance to license cats. He provided a Burt Constable article¡ from th~ Thl,JJ~gay, February 15, 2004, Daily Herald that addresses irresponsible cat ownership. Jim Uszler of the Mount Prospect Chamber of Commerce addressed the Board on several topics. First he commended the Board and the, Special Events Commission for another successful Celestial Celebration. Nex:t, work on the Block Party continues. The Fairlanes musical group has been contracted pending the finalization of the Block Party date. Finally, the International Festival to be held on September 25th. The location will be the RecPlex. This event is being planned in conjunction with the Mount Prospect Park District. The meeting was adjourned at 11 :05 a.m. 7fJ:1)tt~ IJ , -I;;:::::- Richard Eddington ~ Chief of Police RE:dr 2