The high fives celebrating the passage of Cook County’s Paid Sick Leave ordinance were barely over when a kerfuffle erupted about its passage and enforceability. During the 14 months prior to the October 5 ordinance vote, the Cook County State’s Attorney’s office issued three opinion letters expressing its view that the county did not have authority to enact such an ordinance,
Apparently a board of commissioners policy prohibits the State’s Attorney from sharing such letters with anyone other than the commissioner who had requested the opinion. In one letter, the State’s Attorney’s office said that it could not even disclose whether any other commissioner had asked for a legal opinion about the ordinance. As a result, according to one report, at least some commissioners did not learn of the opinions until very close to the vote. Obviously, the State’s Attorney’s opinion did not deter the commissioners since they approved the ordinance.
In the first letter, dated August 7, 2015, the State’s Attorney told the co-sponsor of the bill that “the County does not possess the home rule authority to enact the Ordinance.” (Emphasis added). The letter added that where there is a conflict between a county and municipality ordinance, the municipal ordinance prevails. The State’s Attorney reiterated these opinions in two letters in July 2016. According to reports, at least one municipality is drafting a resolution to negate the county’s PSL ordinance within its borders and other municipalities are considering a similar response.
In the fourth and final letter, dated October 5, 2016, the day the ordinance was passed, the State’s Attorney responded to a co-sponsor’s inquiry as to whether the county had any arguments to defend the ordinance’s legality. The State’s Attorney responded that the county could argue that the ordinance was an exercise of the county’s ability to regulate public health or that the county had the authority to enact labor regulations that exceed the minimum standards set by state law.
German statesman Otto von Bismarck is often credited with saying that laws are like sausages, it is better not to see them made, or words to that effect. If he were around today, he might point to the Cook County’s PSL ordinance to support his assertion.