Legal Question On Flood Assistance Obscures Deeper Issues For Bloomington Leaders
Bloomington leaders will soon decide whether the city should provide financial assistance to flood victims. Until now, much of the debate has focused on whether it’s even legal to do that.
But that can-or-can’t discussion oversimplifies the issue, according to WGLT interviews with public policy experts and city officials. There are many reasons for and against the idea that are partially divorced from whether a direct aid program would someday stand up to a legal challenge.
These practical and philosophical questions are being asked, in part, because while Bloomington’s flooding was bad, it wasn’t bad enough to qualify for a federal disaster declaration. Facing climate change and mounting infrastructure needs, federal and state governments are generally seen “as being less reliable than they’ve ever been to provide assistance in these kinds of situations,” said Justin Marlowe, a research professor at The University of Chicago’s Harris Public Policy.
“You could certainly understand why there’d be a groundswell at the local level to try to intervene in a way that local governments haven’t typically intervened,” Marlowe said. “At this moment, local governments generally aren’t in a good position to that. But it does beg the bigger question about whether this is something local governments ought to be thinking about doing, and whether they ought to have the tools and resources and systems to be able to play that role.”
The direct assistance idea was first proposed by council member Mollie Ward, whose west-side Ward 7 sustained some of the worst damage in the June 25-26 flooding.
“One of my frustrations is we’ve been so focused on the ‘is it legal?’ question, that I don’t know we’ve actually put forward many ideas about what it would look like specifically,” Ward said.
Defining ‘public purpose’
Last month the council voted narrowly to ask city staff to study the idea and identify potential funding sources. Around that time, City Manager Tim Gleason and others raised concerns about whether it would be legal, citing constitutional language that requires public money to be used only for “public purpose.” Gleason raised the possibility that someone opposed to the idea, or who was denied assistance, could sue the city. Mayor Mboka Mwilambwe has echoed those concerns.
“The idea of directly funding victims … I’m not sure the city can do that,” Gleason said Aug. 24.
City administration’s position appears to have softened in recent weeks. During a meeting Sept. 13, city attorney Jeff Jurgens did not say it would illegal.
Instead, he said if council members approved such a program, they would need to “identify and define the public purpose” of doing so. It was a clear case, Jurgens said, for the city to fund an extra bulk waste pickup after a flood because of the public health and sanitation issues involved. But is the same true for restoring someone’s basement?
“If we did this, if that was the marching orders I got from this council, to set up this program, and it was challenged, and we went into court, basically we would hang our hat on 90 or 100-year-old case law and that’s what we’d use to defend ourselves,” Gleason said. “We may not be successful, given the examples we would cite are so old.”
City councils like Bloomington’s are vested with “very broad discretion to determine what’s in the public interest,” said Thomas Skuzinski, an associate professor of public administration and expert in local government law at Northern Illinois University.
“Because of that, courts tend to be highly deferential to their determinations about what’s in the public interest. But it’s not unlimited,” Skuzinski said.
Potential public benefits of a direct assistance program would be tax base stability, economic vitality, and neighborhood strength, he said.
“But you need some kind of process or oversight in place to ensure those public benefits are actually being pursued, and that the assistance isn’t just going to be seen as a gift, if it were litigated,” said Skuzinski.
Supporters of the idea say there are ways to craft an aid program that could withstand legal scrutiny. Other supporters say the legal concerns are being used as an excuse to avoid doing it.
It’s unclear how many people would even benefit from direct assistance. The city’s insurer denied over 500 claims from flood victims. Only about half of the 70 homeowner applications have been approved for a Small Business Administration low-interest loan program.
Coretta Jackson’s SBA loan application and city claim were both denied. She says that’s left her with little recourse for repairing the damage to her home on West Monroe Street. Her basement filled with over 3 feet of water and sewage.
Jackson agrees that it is important for city leaders to fix its under-the-street infrastructure (notably separating its sewers) to reduce sewage backups in the future. But Jackson said that’s no excuse to look past those who’ve already been harmed.
“(They’re) trying to use legalities to avoid helping residents. That’s the bottom line. People need help,” Jackson said. “And there’s no way that it’s illegal to develop a grant program.”
How would it work?
Bloomington would not be alone in venturing into direct assistance. Some cities are experimenting with universal basic income payments. Evanston made history this year by announcing reparations for its Black residents, with the first phase in the form of housing grants.
Jeff Crabill, a Bloomington City Council member representing part of the city’s east side, said he wonders whether the city’s existing pot of assistance money from the Illinois Housing Development Authority (IHDA) might be a starting point for a flooding relief program.
“Just because there isn’t necessarily case law that directly supports what we’re proposing to do, there’s also nothing saying it’s improper,” said Crabill, who is also an attorney. “There’s a way we can tailor this to meet that doctrine and provide meaningful help to our residents.”
There are also practical considerations that make direct assistance challenging, said Marlowe.
Disaster relief is typically done by federal and state governments, leaving cities inexperienced at doing so. Cities have regulatory relationships with businesses, Marlowe said, but not necessarily individual residents. And property taxpayers are not the same as residents, he noted.
“There’s no system, there’s no architecture in place, to be able to write checks to people,” he said.
“We do this kind of thing all the time,” said Mollie Ward, the council member from Ward 7. “We’ve been doing it for years if not decades. I think there’s plenty of basis to argue that promoting stable homeownership and promoting stable, livable neighborhoods, that these are every bit as valid a public purpose as historic preservation.”
Gleason, the city manager, has more recently shifted toward another reason—beyond the legal question—for not simply cutting checks to flood victims.
“I think it is a bad precedent for us to start something like that,” Gleason said last week on WJBC.
Precedent-setting concerns are huge for municipal leaders, Marlowe said. Local governments like Bloomington’s have massive infrastructure needs, he said. The city has around 85 miles of combined sewers concentrated within its older neighborhoods. Some blame them for the sewage backups.
“If you, as a city, go on record and say, ‘Our system may not have failed but we’re going to provide assistance anyway,’ now what you’ve done is opened up a whole bunch of liability for all of your infrastructure that’s in rough shape,” Marlowe said.
Shifting legal standard
Bloomington city leaders should be thinking “long-term about potential future liability for damage from storms, and how the legal standard might be shifting for what is reasonable as far as infrastructure is concerned,” said Skuzinski, the NIU professor.
“If extreme weather becomes more common, and infrastructure continues to age and deteriorate, at some point there will be a successful claim that a municipality violated its legal standard of care, or that it should compensate a homeowner for a flood-related taking of property,” he said. “No municipality—I would say Bloomington is included in that—wants to be part of a case that sets those kinds of precedents.”
That may already be starting. Between 12 and 15 residents have retained Bloomington lawyer William Mahrt for a potential lawsuit against the city for sewage backups in their homes.
Mahrt said he hopes to negotiate and try to reach a settlement with the city first, before filing an actual lawsuit. If they do file, it likely wouldn’t happen until early 2022, Mahrt said.
“The city is absolutely able to settle claims. And if the city says they’re meritorious claims that could be brought for damages, then it could provide any amount of money as a settlement of those claims, Mahrt said. “There’s no Act of God that produces sewage.”
Mayor Mboka Mwilambwe recently acknowledged the dual threat of litigation—if the city offers direct aid and it’s challenged, or if it doesn’t and gets sued by Mahrt’s clients.
“There’s risk everywhere. There’s risk in everything that you do or don’t do. But in terms of residents suing the city for what they think we didn’t do, I feel pretty confident about the work that we’ve done over the years, the plans we’ve put together, and how they’ve been executed. The city has done that faithfully,” said Mwilambwe. “I do believe that we are on firm ground.”