Paul L. Stephanides
Steven M. Elrod
Even before the entire state of Illinois was placed under Gov. J.B. Pritzker’s stay-at-home order last week, local governments began to invoke their own emergency powers to stem the spread of COVID-19 in their communities.
Just west of Chicago, the village of Oak Park became the first municipality in the state to declare a shelter-at-home order on March 19, an action made possible by invoking a state of emergency.
Steven M. Elrod, a partner at Elrod Friedman LLP who represents more than a dozen suburban municipalities, explained that city governments have the ability under state law to declare a state of emergency within their incorporated areas.
“It’s been in the Illinois code for quite a while — it’s just rarely utilized,” he said.
By declaring a state of emergency, village boards or city councils can grant emergency powers to their mayor, who can streamline government processes in the event of a natural disaster or pandemic.
Several of Elrod’s clients, including Deerfield, Highland Park, Winnetka, Lake Bluff, Lincolnwood, Des Plaines and Glencoe, have already declared states of emergency.
Among the increased powers legally available to town leaders under states of emergency are increased purchasing power without board approval, the ability to execute intergovernmental agreements with another local governments (such as school boards or park districts) and the ability to set curfews or quarantine locations. Additionally, mayors can invoke authority under union collective bargaining rules to make emergency alterations to union contracts.
Municipal lawyers at firms and in-house law departments might recommend such action because Pritzker’s statewide executive orders don’t negate local emergency authority.
Elrod stressed the importance of the purchasing and appropriation powers granted in an emergency as critical to procuring essential supplies and services and executing contracts at a time when conducting public meetings has become difficult.
Pritzker suspended portions of the Open Meetings Act earlier this month, broadening governing agencies’ ability to conduct meetings remotely by phone or online. In normal circumstances, board members could call into a meetings by phone or video chat as long as the board had achieved a quorum with physically present members. The emergency rules allow for entire meetings to be conducted electronically with no two members in the same physical location. While it’s a good social-distancing practice, it raises concerns about how to allow public participation.
Given the statewide stay-at-home order, mayors under a state of emergency can cancel government meetings and other public events and gatherings.
While last week’s order in Oak Park now has added backing by the state, Village Attorney Paul L. Stephanides said shelter-in-place orders are not something local authorities plan to strictly enforce.
“You aren’t going to be stopped by the police and asked where you’re going if they see you leaving the house,” Stephanides said. “If there is any enforcement, it will likely be through verbal communication.”
While the village’s shelter-in-place is mostly meant to act as a deterrent from unnecessarily going outdoors (although going out for a walk or brief exercise is explicitly permitted), local authorities can enforce the rules with businesses or ask groups to disperse.
Local governments under a state of emergency can also mandate certain businesses close for safety reasons, or implement changes to certain local ordinances to assist businesses that are able to remain open.
This maneuver has been implemented to allow for some restaurants to conduct curbside pickups or, in some municipalities, beer and wine licenses to be extended to include takeout ordering — something that’s typically prohibited.
Local state of emergency declarations usually only last for one week unless extended to a later date.
Elrod said his clients have mostly opted to extend their declarations until the end of their next board meetings.
Oak Park’s six-trustee board originally voted to extend its shelter-in-place order until April 3, though with Pritzker’s order in effect until April 7, it’s likely that other municipalities seeking to enact emergency powers would extend their declarations until that same point.
All emergency orders, including the state’s stay-at-home directive, are subject to change as the pandemic situation continues to develop nationwide. Members of the public should check for updates on government websites, public health authorities and local news outlets.