The COVID-19 pandemic has impacted our world in a variety of ways we could have never imagined. Opinions on the danger of the virus and how to deal with it also vary greatly. Perhaps the primary issue in the United States, and other countries, is how to balance public health and safety against the economic strain of mandated business shutdowns or restrictions. While the health, safety, and welfare of their constituents remains the top priority of most elected officials, pressure from the business community to help ensure its survivability has intensified during the recent coronavirus resurgence.
Caught in the middle of this balancing act are local leaders of municipalities across this country left to run their cities, towns, and villages within the confines of federal and state executive orders and guidelines. Leaving the issue of partisan politics aside, the power and authority of local mayors to implement, enforce, modify, or defy such orders is subject to many practical and legal concerns.
In Illinois, the general powers of local mayors during emergencies like the COVID-19 pandemic are spelled out in Sections 3.1-35 and 11-1-6 of the Illinois Municipal Code and include the following:
- to release any person imprisoned for violation of a municipal ordinance;
- to examine and inspect the books, records, and papers of any agent, employee, or officer of the municipality;
- to call out the militia to aid in suppressing riots and other disorderly conduct or to aid in carrying into effect any law or ordinance. This authority is subject to the Governor’s authority acting as commander-in-chief of the militia; and, most importantly,
- to enact an ordinance granting the mayor the “extraordinary authority and power” to exercise, by executive order, the “powers of the corporate authorities reasonably necessary to respond to an emergency.” The mayor may only exercise such powers after they sign a declaration of a state of emergency. The local ordinance must establish the nature and extent of the extraordinary authority and the standards by which the mayor determines an emergency exists.
Section 11 of the Illinois Emergency Management Agency Act (“EMA Act”) also authorizes mayors to declare a local disaster, which activates the community’s emergency operations plan and authorizes furnishing of aid and assistance under that plan. The local disaster declaration may not be issued or renewed for a period longer than seven days except with the consent of the corporate authorities. An ordinance enacted pursuant to Section 11-1-6, may grant the mayor significant powers to issue a wide spectrum of executive orders. In the context of the coronavirus pandemic, those executive orders may include the cancellation of public meetings, gatherings and other municipal events and services, the procurement of necessary supplies and services, the closure of certain businesses, and/or the imposition of curfews.
Of course, the exercise of any such power by local mayors raises the question of municipal liability for COVID-19 related claims. As such, the local leader’s decision-making process must consider questions like whether their municipalities may be subject to liability if someone claims to have contracted COVID-19 at a municipal facility or while participating in a municipal program. In light of executive orders closing local restaurants and other businesses, local leaders must also consider potential municipal liability for either intentional or passive failure to enforce compliance with these orders.
From a liability perspective, there are several defenses available to municipalities in the Illinois Tort Immunity Act which may be relevant to COVID-19 situations including the following:
- Sec. 2-103. A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law;
- Sec. 2-105. A local public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its own, to determine whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety;
- Sec. 2-201. Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused;
- Sec. 2-202. A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct;
- Sec. 2-203. If a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for any injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable;
- Sec. 2-205. A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law;
- Sec. 2-209. A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law; and
- Sec. 2-213. Notwithstanding any other provision of law, a public employee is not liable to pay punitive or exemplary damages in actions brought against the employee based on an injury allegedly arising out of an act or omission occurring within the scope of employment of such an employee serving in a position involving the determination of policy or the exercise of discretion when the injury is the result of an act or omission occurring in the performance of any legislative, quasi-legislative or quasi-judicial function, even though abused.
After months of loosened restrictions designed to open up Illinois, Governor J.B. Pritzker recently announced enhanced mitigations that once again prohibit indoor dining in restaurants throughout most of the state prompting restaurant owners and operators to appeal to local mayors for relief.
Assuming the constitutionality of such executive orders, local mayors are now considering their options to respond collectively and/or individually.
The immediate question for local mayors in this regard is whether they will have their police departments take any enforcement action against restaurants that chose to defy the Governor’s Order and remain open for indoor dining. As with the Governor’s long-standing face covering and limited gathering executive orders, COVID-19 related edicts have been treated by the Illinois General Assembly as public health rather than law enforcement issues. As such, there remain no explicit criminal provisions applicable to violations of the Orders.
The primary issue for local mayors to consider is whether their police departments have the obligation to enforce the executive order. As with enforcement of the face covering and gathering rules, there is no ramification if a local police officer exercises his/her discretion to not enforce. Similarly, it is the local health official that has the explicit authority to institute a prosecution. As such, local police do not have the authority, or obligation, to institute a prosecution.
If you have questions regarding COVID-19 related municipal authority or liability, contact Tom Hayes at thayes@mckenna-law.com