Even before the Cook County Board of Commissioners voted in October to require paid sick leave and a higher minimum wage for county employees, some pondered whether the board had the legal authority to do so.
Cook County Board President Toni Preckwinkle
Commissioners Timothy Schneider (R-15) and Sean Morrison (R-17) each requested opinions from then-Cook County State’s Attorney Anita Alvarez’s office about the legality of the board’s mandates. Both men are Republicans whose districts include large swaths of suburban communities on Cook County’s northwest and southwest borders and who have said they worry the ordinances – similar to such ordinances recently enacted in the city of Chicago – could have deleterious impacts on the economic environments of the communities they represent, far from the Loop.
And when Alvarez’s responses arrived in July, they confirmed the commissioners’ suspicions: The county board’s legislative reach had likely exceeded its constitutional grasp, according to Alvarez.
Despite Alvarez's opinion, Cook County Board President Toni Preckwinkle believes the county acted within its jurisdiction, said Frank Shuftan, Preckwinkle’s press secretary and director of communications. Shuftan said the county plans to now wait to see if any municipalities choose to contest the ordinances.
“This is America. Anyone can file a lawsuit about anything,” Shuftan said. “If there is litigation filed, we’ll let it play out. We feel sound in our position.”
But that is exactly the problem, Schneider said.
“The county will impose these things and wait for somebody to file suit. And many times they don’t because they don’t have the pockets to do it,” he said, noting a lawsuit imposed by a municipality could cost hundreds of thousands of dollars.
“We (Cook County Board members) do things that I think are overreach, and we do things that I think aren't good for western Cook County.”
In a letter written to Schneider regarding the board’s living wage ordinance, Alvarez pointed to a 1988 Illinois Supreme Court Case, Bernardi v. City of Highland Park, in which the court noted Article 7, Section 6(a) of the Illinois constitution curbs the authority of home rule units, limiting them in areas in which the state has a more vital interest in regulating.
Alvarez found “local legislation that purports to regulate local labor conditions does not pertain to a home rule unit’s ‘government and affairs’ for purposes of Section 6(a), and we believe that if challenged a court would likely find that the ordinance exceeds the County’s home rule authority.”
Similarly, in a letter to Morrison, Alvarez stated, “Our legal conclusion is that Cook County lacks the home rule authority to enact a paid leave mandate for employers whether countywide or within unincorporated Cook County.”
After two terms in office, Alvarez was defeated in this year's Democratic primary by current Cook County State's Attorney Kim Foxx, who replaced Alvarez earlier this month.
Adam Lasker, an associate attorney with Ancel Glink, an Illinois firm that specializes in municipal law, said there is a reason the Illinois constitution permits an ordinance set by a municipality to supersede a conflicting ordinance passed by the county.
“Counties are not designed to govern local issues that apply to municipalities,” Lasker said. “Counties are designed to be the government for the areas that are not incorporated and to provide services on a countywide basis, such as conducting elections, [acting as the] recorder of deeds [and supplying] birth certificates and court records.”
“That’s why the constitution has this Section C - because counties are not really supposed to be micromanaging villages.”
However, from a political standpoint, he believes the county’s decision to enact the ordinances wasn’t exactly overreach.
“It’s within their authority to do it; it’s within the authority of the municipalities to opt out. Everybody gets to have their own opinion,” he said.
“Overreach, to me, means improper. Some legislative decisions I would call overreach, but this is a law that reasonable minds could agree with or disagree with.
“Disagreeing with it doesn’t necessarily mean they went too far.”
Still, Lasker said he would defer to the State’s Attorney’s opinion regarding the county’s legal authority in these particular cases.