Wednesday, November 26, 2014

Illinois Supreme Court Dismisses Challenge to Red Light Camera Ordinance

Last year, an appellate court upheld the dismissal of a challenge to the City of Chicago's red light camera ordinance.  Keating v. City of Chicago, 2013 IL App (1st) 112559-U.   The case made its way to the Illinois Supreme Court, which last week dismissed the appeal because 2 of the Justices recused themselves, and the remaining Justices were divided so it was impossible to obtain the concurrence of 4 Justices required to render a decision.  Keating v. City of Chicago, 2014 IL 116054.  

The plaintiffs claimed that the  City lacked authority to enact the ordinance and that the ordinance was unconstitutional because it was enacted pursuant to a statute that violated the constitution as special legislation.  The City had filed a motion to dismiss, arguing that the plaintiffs did not have standing to challenge the ordinance and that the ordinance was validly enacted.  Both the trial court and the appellate court dismissed the case.  The appellate court held that Chicago's red light camera ordinance was validly enacted based on its home rule powers.  The court also held that the statutory authorization was not special legislation, although it applied only to eight counties specially identified in the statute. 

The opinion does not explain why Justice Burke and Justice Karmeier recused themselves.

Post Authored by Julie Tappendorf

Tuesday, November 25, 2014

Illinois Pension Reform Law Unconstitutional

Unless you have been living under a rock, you are familiar with Illinois' public employee pension "crisis" and the legislature's attempts to fix that crisis through reform legislation.  Pursuant to Public Act 98-0599, the Illinois General Assembly approved a variety of amendments to the Illinois Pension Code including the following: (1) change to the automatic annual increase provision; (2) a caps on pensionable salaries; (3) an increase in the retirement age; and (4) alteration of the method for calculating interest. among others.  

A number of lawsuits were filed challenging the Act.  Many of these lawsuits were consolidated before Judge Belz of the Sangamon County circuit court.  Last week, Judge Belz issued an opinion striking down the Act as unconstitutional.  Specifically, the Judge held that the "Act without question diminishes and impairs the benefits of membership in State retirement systems" in violation of the Illinois Pension Clause's protection against the diminishment and impairment of pension benefits, which are "absolute and without exception."  

Because the Act contained a clause declaring the various sections "mutually dependent and insverable from one another," the Judge declared the Act unconstitutional in its entirety. 

The legislature will have to go back to the drawing board on this one, but this decision might provide some guidance at least in what pension reform measures will not pass constitutional muster.

Post Authored by Julie Tappendorf

Monday, November 24, 2014

Upcoming Seminar on Local Government Law

The Illinois Institute for Continuing Legal Education (IICLE) will be presenting its annual Local Government Law Institute on Friday, December 5th, in Chicago. The conference includes six substantive legal sessions, a "lunch & learn roundtable" program at lunch, as well as a post-program cocktail reception.  This is a "don't miss" program for local government lawyers. 

You can register here.

December 5, 2014
UBS Tower & Conference Center, One N. Wacker, 2nd Floor, Chicago
9:00 a.m. - 6:00 p.m.

This program provides 6.75 CLE credits, 2.0 of which are professional responsibility (ethics) credits.

Here is a summary of the sessions:


The Fox in the Henhouse: Fraud in Government
(1.0 Professional Responsibility Hours, pending approval)
Discuss best practices for uncovering and preventing fraud in government, using lessons from City of Dixon & SWANCC.
John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue, Chicago

Trouble in the Workplace
Learn more about the different paths to employee discipline, including BFPC/Civil Service and Grievance/Arbitration and how to deal with employee complaints.
Steven B. Adams, Tressler, LLP, Chicago
James V. Ferolo, Klein, Thorpe and Jenkins, Ltd., Chicago
Lance C. Malina, Klein, Thorpe and Jenkins, Ltd., Chicago

The Zoning Game
Using a hypothetical case study and role-playing, explore legal, due process, and ethical issues that come up in a zoning case, from application to final disposition.
Steven M. Elrod, Holland & Knight, LLP, Chicago
Julie A. Tappendorf, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

Lunch & Learn Roundtables
Discussion Leaders at Each Table

From American Hustle to the Hunger Games: Best Practices for Conducting Public Meetings
A panel of battle-hardened attorneys will share their war stories and tackle the toughest, weirdest questions from the audience and from each other.
Moderators:
Peter M. Friedman, Holland & Knight, LLP, Chicago
Michael F. Zimmermann, Tressler, LLP, Chicago

Early & Often: A Look at Local Government Consolidated Elections
How do you deal with the politics and procedures of ballot challenges? How and to what extent can a municipality legally weigh in on referendum propositions? Get answers to these questions, plus the latest on hearings and ethical issues with local elections.
Hon. Mathias W. Delort, Presiding Judge, First Division of the Illinois Appellate Court, First District, Chicago

A View From the Bench
(1.0 Professional Responsibility Hours, pending approval)
An engaging panel of judges who frequently hear municipal law matters will engage with you in an interactive, moderated session.
Moderator: Katherine S. Janega, Former Village Attorney, Winnetka
Hon. Mathias W. Delort, Presiding Judge, First Division of the Illinois Appellate Court, First District, Chicago
Hon. Thomas M. Donnelly, Associate Judge, Circuit Court of Cook County, First Municipal District, Chicago
Hon. Iain D. Johnston, Magistrate Judge, Northern District of Illinois, Rockford

Wrap Up Cocktail Reception


Report on Website Posting Compliance

The Illinois Press Association recently released a report on local government compliance with the Open Meetings Act. The IPA collaborated with the Citizen Advocacy Center (CAC) on the study, which looks at government compliance with the OMA's website posting requirements.  You can read the report on the IPA's website here.  The stated purpose of their collaboration is to "illustrate the need for meaningful enforcement provisions within Illinois' Open Meetings Act website posting provisions."

You may recall that we have reported in the past about the OMA's website posting requirements in a post called 10 Website Posting Requirements.  The IPA/CAC report focuses on the first few requirements in our blog post relating to the posting of notices, agendas, and minutes.  The OMA requires public bodies (including municipalities, schools, parks, libraries, townships, counties, and other government entities) to post notices, agendas, and minutes if the public body (1) has a website and (2) that website is maintained by the full-time staff of the public body.  

In researching their report, the IPA and CAC conducted a random sampling of 20 counties, 298 townships, 176 school districts, and 262 municipalities to see whether they complied.  They determined that 51% of the public bodies surveyed had a website.  Of those public bodies (with at least one full-time employee), they determined that 77% complied with notice posting requirements, 64% with agenda posting requirements, and 54% with meeting minute posting requirements. The report concludes that compliance with website posting requirements of the sample public bodies was "poor," and that the OMA does not contain sufficient remedial measures for lack of compliance.

The problem with the study? The IPA and CAC interpreted the OMA to mean that if a public body had a full-time employee (any employee, whether or not that employee was actually staffed to maintain the website), that meant that the employee had a continuing responsibility to keep the website updated.  They assumed that if a public body had any full-time employee, they triggered the OMA website posting requirements.  But that is not what the OMA says.

Instead, the website posting requirement for meeting notices states as follows:
[A] public body that has a website that the full-time staff of the public body maintains shall post notice on its website of all meetings of the governing body of the public body.
Contrary to the IPA and CAC's interpretation, the language does not apply to every public body with at least one full-time employee.  To the contrary, the language specifically states that the public body must have a full-time employee who maintains the website for the law to apply.  Public bodies with websites often use interns, part-time staff or officials, or retain outside consultants to maintain and update their websites - in those cases, the OMA website posting requirement simply does not apply, regardless of how many full-time staff members the public body employs.    

The report does acknowledge that they have taken a very liberal interpretation of the OMA and that their interpretation has not been approved by a court or the Public Access Counselor, the two entities charged with enforcement of the OMA.  In determining which of the sampled public bodies had full-time employees, they filed FOIA requests asking for a list of all current full-time employees and their titles. Oddly, the FOIA request did not ask whether any of those employees actually maintained the website - a simple follow-up question that would have followed the language of the statute.  Instead, the IPA/CAC assumed for purposes of analyzing the public body's websites for compliance that every public body with at least one full-time employee triggered compliance with the OMA.  But, that is not what the OMA says.

The report does acknowledge that there may be another interpretation of the OMA - that the website posting requirement only applies to a public body that (1) has a website, and (2) that employs at least one full-time staff member whose duties include maintaining the website. Inexplicably, the IPA and CAC rejected that interpretation for purposes of their analysis and conclusions.

Because the report is based on an unsupported and arguably flawed interpretation of the website posting requirements, it does not provide a true report of public body compliance with the OMA.  Not one court case or PAC opinion supports the IPA/CAC interpretation that all public bodies with full-time employees are obligated to comply with the website posting requirements.  The OMA provides that only those public bodies that have a website that is maintained by the full-time staff are covered by these requirements.  As a result, the IPA and CAC report does not appear to provide much in the way of meaningful data or conclusions on website posting compliance.

Post Authored by Julie Tappendorf

Friday, November 21, 2014

Religious Discrimination Case Against University Dismissed

A Jewish religious organization (Chabad-Lubavitch) was barred from contracting with the University and its contractors after an investigation discovered that the organization was allowing underage students to drink at various functions at the Tannenbaum Chabad House. The religious organization sued the University, claiming that the disaffiliation violated the organization's civil rights by discriminating against the organization on the basis of religion - specifically, the group argued that the University's actions were motivated by hostility to the Chabad sect.  The district court dismissed the case, finding no discrimination in the University's actions.

On appeal, the 7th Circuit Court of Appeals also ruled against the religious group.  First, the court determined that religious discrimination is not covered by sections 1981 and 1982 of the Civil Rights Act.  Second, the court found no evidence that the University was hostile against the Chabad sect, or Judaism in general.  Instead, the University took action against the group because of its irresponsible attitude towards excessive underage drinking at the Chabad house.  Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (7th Cir. Nov. 6, 2014).

Post Authored by Julie Tappendorf

Thursday, November 20, 2014

Employees Not Protected for Social Media Insubordination


We've posted in the past about "employees behaving badly" on social media.  Many of these cases end up at the National Labor Review Board.  Although the NLRB doesn't have jurisdiction over local governments, Illinois public sector labor boards do look at NLRB precedent in applying the Illinois Labor Relations Act and the Illinois Educational Labor Relations Act, so it's worth being familiar with these NLRB decisions.  

In a recent ruling, the NLRB said "enough is enough" to two seasonal employees of a not-for-profit youth organization in San Francisco.  The NLRB upheld an administrative law judge’s dismissal of a complaint against the Richmond District Neighborhood Center when is failed to rehire two seasonal employees. The employees had previously met with their supervisor to share comments and criticisms about the organization. Later, two of the employees, Moore and Callaghan, exchanged critical comments about the Center on Facebook, including the following:
Moore: I’m goin’ to be a activity leader I’m not doing the t.c. let them figure it out and they start loosin' kids I ain’t help'n HAHA.
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f**k it up. I would hate to be the person taking your old job. 
Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho shawn gone its still hella stuck up ppl there that don’t appreciate nothing. 
Callaghan: You right. They don’t appreciate sh*t. That’s why this year all I wanna do is sh*t on my own. Have parties all year and not get the office people involved. Just do it nd pretend thay are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help. 
Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids. 
Upon reviewing the Facebook exchange, the Center decided not to rehire these employees. The employees filed a charge with the NLRB claiming that they were not rehired as a result of their protected activity in criticizing their employer. The ALJ found in favor of the employer and determined that the employees’ grossly insubordinate behavior was outside of the protection of the Act. The NLRB agreed with the ALJ  that the employees had engaged in concerted action, but that they had forfeited any legal protection under the NLRA when they made comments indicating that they intended to be uncooperative or insubordinate to their employer.

The NLRB agreed with the ALJ that it is well established that employees (whether unionized or not) have a right to engage in concerted activity for their mutual aid or protection, and employees  “may take action to spotlight their complaint and obtain a remedy.” When Callaghan and Moore joined with other employees to describe their complaints to a supervisor, they were engaged in protected concerted activity, the ALJ found. The NLRB agreed with the ALJ though, that notwithstanding the employee’s right to air their complaints, these employees went too far when their comments evidenced a plan to disrupt operations of the Center and to engage in insubordination. The Center was able to show that it would suffer if the employees were rehired because it would jeopardize grants and other funding of the organization. Ultimately, the NLRB agreed with the ALJ’s finding that the concerted activity was not protected.

This ruling draws a "line in the sand" for employees. They can be critical of their employer, but they can’t have protection if their comments reflect insubordinate activity, especially if that would jeopardize operations of the employer. 

Read more about this ruling on The Workplace Report here.

Wednesday, November 19, 2014

Court Rules Against PAC

You may remember that earlier this year, we posted about PAC opinion 14-001, where the PAC found a school district in violation of the Open Meetings Act for failing to adequately discuss the significance of approving a separation agreement prior to the school board voting on it.  The district appealed to the circuit court, which found ruled against the PAC, finding that its opinion was not consistent with the OMA in Board of Education of Springfield v. Attorney General.

Both the trial court decision and the PAC opinion turned on the interpretation of Section 2 (e) of the OMA, which requires a public recitation of the nature of the matter being discussed prior to a vote on an agenda item.  In its opinion, the PAC  interpreted that section to require the school board to "provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to consider action taken. " Although the school board had, in fact, engaged in a discussion prior to voting on the agreement, the PAC found the board in violation of this section of the OMA for failing to explain to the public the significance of approving the separation agreement.

The court, however, disagreed with the PAC's interpretation, finding no support in Illinois law for "such an expansion of the requirements of Section 2 (e) of the Open Meetings Act." The court noted that not only did board members engage in discussion before voting, they had also posted a copy of the agreement five days before the meeting.

This is a good result for public bodies and it's the right one.  The PAC's expansive reading of the OMA to require an explanation of the significance of an agenda item prior to voting is simply not consistent with the OMA nor common practices of public bodies.  That interpretation also created uncertainty for public bodies in their use of consent agendas.

The PAC filed a notice of appeal to the appellate court on October 27, 2014, so this case is not over. We will keep you posted.

Post authored by Julie Tappendorf

Tuesday, November 18, 2014

City Not Obligated to Indemnify Attorneys' Fee Award

The 7th Circuit recently reversed the ruling of a trial court judge that awarded attorneys' fees in an excessive force case.  In Winston v. O'Brien (7th Cir. Nov. 7, 2014), a person detained at a Chicago police station alleged that he was tasered repeatedly and punched while in handcuffs.  He sued two Chicago police officers for using excessive force, and the jury awarded him $1.00 in compensatory damages and $7,500 in punitive damages against one of the officers.  The district court ordered the City to pay Winston's attorney’s fees of $187,467.00, along with an additional $90,777.00, associated with the legal work involved in trying to collect the fees. 

Winston then filed a petition seeking to make the City responsible to pay the attorneys' fee award, arguing that the City was required to pay for fees under state law (745 ILCS 10/9-102):

A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney’s fees and costs) for which it or an employee, while acting within the scope of his employment is liable in the manner provided in this Article.  (Emphasis added) 

On appeal, the City argued that the district court lacked authority to hold the City responsible for the attorneys' fee award against the officer.  The 7th Circuit Court of Appeals ruled in favor of the City, finding that state law does not mandate indemnification of attorneys' fees - instead, the language of section 9-102 states that municipalities "may pay any associated attorney's fees and costs."  The court also rejected Winston's argument that a union agreement mandated indemnification of the attorneys' fee award against the officer.  As a result, the court concluded that the district court erred in ordering the City to pay the officer's attorneys fee award.  

Sometimes, in cases of this nature, where a good settlement of all claims can be reached, the punitive damage claim is dropped, but the amount paid reflects the presence of the punitive damage claim.  The Winston case tells us that Illinois governmental bodies are not authorized to pay either punitive damages or plaintiff’s attorney’s fees incurred in producing punitive damage judgments.  Governments have complete discretion as to whether attorney’s fees or costs will be paid in civil rights cases where a plaintiff is awarded significant compensatory damages.  When a very small amount of compensatory damages are awarded in a case that does not establish some important principle of federal constitutional law, the courts will generally resist awarding any significant amount of fees.  Governments choosing not to pay attorneys fees need to consider the morale factor, since the plaintiff can personally pursue the assets of the public employee defendant whose actions caused the civil rights judgment.  One final wrinkle to this rule is that, in some instances, either conventional insurance policies or scope of coverage of governmental self-insurance pools may more clearly obligated themselves above the level of the Illinois statutes to pay awarded attorney’s fees

Post Authored by Stewart Diamond, Ancel Glink


Monday, November 17, 2014

Electoral Board Disqualified for Interest in Term Limits Referendum

Ken Zurek and others collected more than 700 signatures to place a term limit referendum on the ballot in the Village of Franklin Park.  A petition was filed to object to the proposed referendum, alleging that the ballot question was ambiguous.  Under the Election Code, the Franklin Park electoral board would hear and decide the objections.  The electoral board consists of the village president, senior trustee, and clerk.  Although Zurek objected to the make-up of the board, arguing that they should be disqualified because of their interest in the question, the board rejected that argument and denied Zurek's objection to the referendum question.

Zurek appealed to the circuit court, arguing that the members of the electoral board should have been replaced with public members, arguing that all three members have an interest in referendum question since the issue of term limits would affect them.  The electoral board responded that state statute did not provide for disqualification of electoral board members unless they were candidates for office with relation to the objection.  The circuit court agreed and upheld the electoral board's decision.  

On appeal, however, the appellate court held that the village president, senior trustee, and clerk should have been disqualified from serving on the electoral board. Zurek v. Franklin Park Officers Electoral Board, 2014 IL App (1st) 142618.  The court analyzed the disqualification language in state statute.  Although the petition before the electoral board was not that of an opposing candidate, the court nevertheless that the term limits referendum was "in relation to" their candidacy.  As a result, the court held that the members should have been replaced with public members.

It's interesting to note that the court issued its ruling on November 4, 2014, the election day at which this referendum would have been on the ballot had it not been stricken by the electoral board.  The court rejected the mootness argument, however, holding that the objection could still be heard post-election (by a newly constituted electoral board made up of public members).  If the referendum survives, it would be placed on the ballot at the next election.  

Post Authored by Julie Tappendorf, Ancel Glink

Friday, November 14, 2014

Webinar: Land Use and the Fair Housing Act

Don't miss this upcoming webinar hosted by the Planning & Law Division of the American Planning Association:

Webcast— Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk

November 25, 2014
2:00 – 3:30 PM EST

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk on Tuesday, November 25th from 2:00 to 3:30 PM EST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. 

Presented by Don Elliot of Clarion Associates and Brian Connolly of Otten, Johnson, Robinson, Neff & Ragonetti, this webcast explores the connection between local land use regulation and the federal Fair Housing Act. 


Thursday, November 13, 2014

Utility Tap-On Fee Bill Veto Update

Previously, we reported on a bill proposed by the legislature that would restrict the amount that municipalities are authorized to charge for utility connections.  You can review those posts here and here.  After the governor vetoed the bill, the Illinois Municipal League (IML) began working with the legislature to modify the bill.  The IML sent out a message about the status of that negotiation today, summarized below:

SB 3507 (Senator McCarter/Representative Kay) severely restricts the amount municipalities and townships may charge for connecting property to water and/or sewer services.  Specifically, the charge may only be up to 2 months of the estimated annual cost of the charge for supplying the water or sewer service. 

At the request of the IML, the Governor issued an amendatory veto to SB 3507 last August.  This amendatory veto removed municipalities from the bill and left townships as the only units of government affected by the cap.  In the amendatory veto message, the Governor recognized that forcing municipalities to lower tap-on fees would lead to an increase in rates for all users of the system.

Over the past several months, the IML assembled a working group that sought to craft compromise language with Senator McCarter. The goal was to prevent local governments from “abusing” their authority to charge tap-on fees while still preserving local control for those municipalities with “fair and reasonable” tap-on fees.  Although there was agreement on certain points, a full agreement could not be reached. 

With Veto session just days away, it is important to inform your legislators of your position on the bill.  The IML has received no indication about how Senator McCarter will proceed at this time.  If there is a motion to accept the amendatory veto for Senate Bill 3507, the IML will be supportive of this motion.  If there is a motion to override the amendatory veto for Senate Bill 3507, the IML will stand in opposition to that motion. 

Please continue to check the IML website for any updates on this issue.

Supreme Court Addresses "Knock and Talk" Exception to 4th Amendment

Earlier this week, the U.S. Supreme Court weighed in on the “knock and talk” police procedure that provides an exception to the Fourth Amendment right to privacy.  Specifically, the Court determined that there is no established rule in place that restricts police to approach only the front door of a private home when investigating a possible crime.  The case is Carroll v. Carmon (Nov. 10, 2014), which reached the Supreme Court by way of the 3rd Circuit Court of Appeals. 

Two Pennsylvania state troopers had gone to the Carman’s home after receiving a tip that a man, who allegedly had stolen a car and two loaded handguns, was at that home. The officers parked their car at the side of the house, and noticed that there was a back door, opening onto a rear porch.  Officer Carroll would say later that he thought that “looked like a customary entryway,” so the two officers approached that door.  With Mrs. Carman’s permission, the two officers searched the house, but did not find the suspect. The troopers then left, and the Carmans sued, claiming a violation of their privacy because the police approached the back door, instead of the front door.  The 3rd Circuit ruled in their favor, finding that the so-called “knock and talk” exception to the Fourth Amendment privacy guarantee “requires that police officers begin their encounter at the front door, where they have an implied invitation to go.”

The U.S. Supreme Court disagreed that the officers’ conduct violated the Carman’s privacy.  The Court stated that there is no “front door” rule that would preclude officers from approaching the back door for a “knock and talk.”   The case was then remanded to the 3rd Circuit to determine whether the officer was immune from a civil rights lawsuit.

Post Authored by Julie Tappendorf