A commentary by McHenry County Board member Michael Walkup:
Michael Walkup
A storm is brewing over the vote not to allow County Board Member John Hammerand to participate at last Tuesday’s County Board meeting via speakerphone.
Here is what the Board Rules say about remote attendance:
“REMOTE ATTENDANCE POLICY”
Pursuant to the Illinois Open Meetings Act, where a quorum of the McHenry County Board or of a standing committee is otherwise present, a member of the board or said committee may attend the meeting via telephone or video conference provided that the member is prevented from attending due to :
(i) an ADA recognized disability or illness;
(ii) employment purposes or business of the County Board; or
(iii) a family or other emergency, and provided that the technology exists at the meeting location to allow for such telephone or video conferencing.
A member wishing to attend remotely must notify the Chairman and the County Administration at least 48 hours before the meeting if the condition preventing their attendance is pre-existing or anticipated.
At the beginning of the meeting where a member wishes to attend remotely, a motion must be made by a member of the board or committee to allow the absent member to attend remotely and stating the reason why said member will be attending remotely.
Such motion must then be seconded and approved by a majority of the members present.
A member attending remotely pursuant to this policy may engage in discussion and may cast a vote on the matters of the day.”
Here is the problem:
The Rules mention an “ADA recognized disability” as the only basis for allowing remote attendance due to illness.
What is an “ADA recognized disability”?
Well, for one, it has to be a chronic condition, usually lasting at least six months.
That means that temporary illnesses or injuries would not count.
John Hammerand
While Mr. Hammerand’s condition would appear to be chronic in nature, the types of illnesses which the Board has allowed to permit remote attendance in the past have not been.
Possibly those could come in under “a family or other emergency” but that is not specified.
The second problem is that determining what is an “ADA recognized disability” is a very complex process and not something that any County Board member who is not an expert in ADA law would be able to ascertain.
To further explain this we need to look at bit at the ADA and it’s history.
The Americans with Disabilities Act was originally passed in 1990. It contained multiple provisions relating to employment, public accommodation, access to government facilities, and the like.
Under the original version of the ADA a person had to first prove that they were a member of the class which was protected under the ADA. This is where problems arose.
Employers and others who did not want to have to search for accommodations decided to try to head off these requests at the pass and challenged whether or not the people making the requests fell under the ADA just because they had some physical or mental impairments.
The original wording provided that a person first had to be a “qualified individual with a disability”.
This was further defined as meaning that the person had to have some type of chronic (not temporary) impairment or combination of impairments which “substantially limits a major life function”. Various non exclusive examples of “major life functions” were included, one of which was “breathing”.
This language resulted in 20 years of litigation culminating in two U. S. Supreme Court decisions which basically said that the ADA was only intended to cover people with very serious and obvious disabilities which was expected to be a relatively small number, and not everyone who had, for example, back surgery, and now couldn’t do heavy lifting.
In 2008, the Congress took another look at the ADA and the Supreme Court decisions and embarked on a process to get the ADA back to what was considered to be it’s original intent.
Eventually an agreed bill process was employed where representatives of both the disability communities and business interests agreed on changes to the Act. The new Act, now called the ADA As Amended, was passed and became effective in 2009.
Under the new Act, Congress expressly overruled the two Supreme Court decisions and reiterated that the ADA was intended to be broadly interpreted in as inclusive a manner as possible, and that very few cases should revolve around whether or not someone was a “qualified individual with a disability”.
Instead the focus was to be on whether or not the requested accommodations would pose an ‘undue hardship’ to implement.
The number of examples in the list of ‘major life functions’ was expanded, and it was stated that you were to look at what the person’s condition was at it worst, without corrective measures having been taken.
In the case of asthma, for example, you would look at when the individual had episodes of asthma and not at what they were like in between episodes. You would also not be allowed to engage in an additional step of determining if the accommodation were really needed. All the individual now has to do is to show that they have a
- chronic condition, which
- at it’s worst and without corrective measures,
- substantially interferes with the major life function of breathing.
Once that is done, you go to what accommodation is needed and whether or not providing that would be unduly burdensome.
This, however, runs counter to the Board Rules, which call upon 23 politicians, who may have political reasons for their votes, and who usually have no background in the ADA, to make the determination that the Member requesting the accommodation is a “qualified individual with a disability”.
One can easily foresee the situation where an absent member’s vote may be necessary to break a tie, particularly in a 7 member committee, and now you have half of the members who believe that member will be voting the opposite of themselves, simply preventing that occurrence by voting down the request for the accommodation.
Now you have a tie vote on the Motion, which means that the Motion fails, the member doesn’t vote, and there is no vote out of that committee.
One might fairly ask: What issues are expected to be coming up on the committees on which Mr. Hammerand is a member in the coming months?
The Management Services Committee will be taking up this issue on Monday morning at the meeting commencing at 8:30. Public comment is allowed at the start of the meeting.