Editor's note: This is Part 3 of a three-part series examining this topic. Part 1 can be read here; Part 2 is available here.
In a firm but amiable pushback to measures recently passed by Cook County Board commissioners, Barrington officials recently passed an ordinance to opt out of the county’s newest laws, using delicate wording from the Illinois constitution to back their decision.
On Nov. 14, village trustees unanimously approved an amendment to the village code that stipulated village businesses must comply with federal and state laws, but did not have to adhere to any additional obligations regarding paid sick leave or minimum hourly wages imposed by ordinance by the Cook County Board.
Cook County Board Commissioner Sean Morrison
In October, the county board overwhelmingly supported ordinances gradually increasing the minimum wage to $13 an hour and mandating paid sick leave, up to five days a year, for non-tipped employees. Both ordinances are set to take effect July 1, 2017. Only Republican commissioners, including Tim Schneider, who represents Barrington, among other communities in his district in the county’s suburban northwest corner, voted against the measures.
Barrington, utilizing Illinois state constitution provisions allowing municipal ordinances to supplant conflicting county ordinances, quickly drew up its own ordinance in response to the county action. Village President Karen Darch noted the village is split between two counties, Cook and Lake, and disparities between the two parts of town could be detrimental to economic development in the village.
“[We needed] to have an ordinance that gives certainty to employers on both sides of Lake Cook Road, [so that] the rules are the same on each side of the street,” Darch said. “This is an issue for us. It’s important for our business community to have some certainty … you don’t want people to have that factor in their heads if they’re looking at properties downtown.”
Providing a level playing field across the county was an argument used by Democratic proponents of the ordinances, which were brought forward after the city of Chicago passed nearly identical measures.
But with municipalities able - and willing - to opt out, that logic has seemingly backfired.
“It actually does nothing to provide uniformity; it opens up a Pandora’s box of patchwork mandates that employers must follow,” said Michael Reever, vice president of government relations for the Chicagoland Chamber of Commerce, which opposed the county’s ordinances.
Even as the county matches Chicago’s paid sick leave and minimum wage requirements, individual communities like Barrington can enact their own mandates, leaving the county with varying policies from municipality to municipality.
Frank Shuftan, spokesman for Cook County Board President Toni Preckwinkle, said the county government understands the concerns of municipalities like Barrington, but stands by the county board’s decision.
“A lot of the commissioners that voted for minimum wage also have segments of the suburbs in their districts,” Shuftan said. “In terms of the issue for Barrington, being in two counties, I think the strong preference would be this be done statewide. But we’re not at the point. The state doesn’t even have a budget; there’s huge dysfunction in Springfield. The county board decided we wouldn’t wait.
“Doing something is better than doing nothing.”
Home-rule isn’t final rule
Some have believed that only home-rule communities have the authority to enact an ordinance to preempt one passed by the county. If that was the case, Barrington, a non-home-rule community, would not have the authority to sidestep the county’s paid sick leave and higher minimum wage ordinances.
But the wording of the Illinois constitution, Article 7, Section 6(c), provides “if a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction.”
“That’s speaking about a home-rule county ordinance, but the implication of that provision is not limited to home-rule municipalities,” said Jim Bateman, Barrington village attorney. “It applies to any municipality.”
Bateman also noted that he received a copy of a letter addressed to Republican Commissioner Timothy Schneider from the Cook County State’s Attorney’s office, in which the office said “it is critical to note that a municipality whose ordinance conflicts with Cook County’s ordinance does not have to be a home rule unit of government for its ordinance to prevail under Section 6(c).”
The letter had been drafted on behalf of former Cook County State’s Attorney Anita Alvarez. She was defeated in the March Democratic Party primary by Kim Foxx, who was then formally elected Nov. 8 and was sworn in as the county’s new top attorney Dec. 1.
“When the chief legal officer of the county in question is also giving the county board the same opinion, we do feel confident our conclusion is in line with the Cook County State’s Attorney’s opinion,” Bateman said.
Barrington, which also voted against a 2014 referendum to make the village a home-rule community, may be one of the first to pass such new legislation, but the village is hardly the only one to consider it.
Schneider said most of the communities he represents are contemplating regulations to avoid complying with the county’s mandates, noting Hanover Park likely would pass an ordinance and others were working on it.
Hoffman Estates Mayor Bill McLeod said there was “no urgency” regarding the matter, but the village board likely would begin conversations soon to determine what steps, if any, the board would take.
Schaumburg, a home-rule community, actively monitored the county’s ordinances requiring the minimum wage increase and paid sick leave for some time before they were enacted, said Allison Albrecht, communications manager for the village, and the village is aware of its ability to opt out. But there are no current plans to take action, she said.
The village will, however, continue to consult with the Schaumburg Business Association and regional business and tourism promotional organization Meet Chicago Northwest, to determine if further action is necessary.
Other municipalities have decided to tend to immediate business first - such as passing annual budgets - and worry about the ordinances next year as the July implementation date gets closer.
Impending litigation?
Perhaps anticipating legal action by his constituency, Schneider’s colleague and fellow Republican, county Commissioner Sean Morrison, also sought an advisory opinion from the Cook County State’s Attorney as to the length and expense of a protracted lawsuit, should the paid sick leave ordinance pass and be challenged in court.
The State’s Attorney responded in July by saying it was impossible to calculate such possibilities, but did note that “cases challenging Cook County’s home-rule authority have taken two or more years to be decided in the Circuit Court and one or more years to be decided in the Appellate Court.”
Attorney Adam Lasker of Ancel Glink, an Illinois firm specializing in municipal law, doesn’t believe many, if any, municipalities will sue the county board on the constitutionality of its ordinances.
While it would be a question of law, one that would not require witness testimony, it still “would be a $100,000, $200,000 piece of litigation to go through the Illinois Supreme Court,” Lasker said.
And taxpayers would foot the bill for such legislation.
Lasker also highly doubts the county will sue a municipality for not following its ordinance.
Until the issue is brought to court, however, the true power and meaning of Section 6(c) is “up in the air,” he said.
Meanwhile, the county board will watch to see what municipalities choose to do, Shuftan said.
“I think communities need to do what they feel is in their best interests,” he said.
But Shuftan said the county’s leadership still believes Cook County was right to enact the ordinances, to try to equalize wage opportunities for workers in Chicago and the county’s suburban communities.
“If you’re going to keep your wage at a certain level, and right down the street in a different town at a similar establishment, [someone] is making more, where do you think the workers are going to go?” he said. “It’s one of the things that we’ll have to see play out.”