Friday, October 2, 2015

Plan a Day with Ancel Glink!

The American Planning Association(APA) Illinois State Conference is being held October 7 – 9 at the Marriott Hotel and Conference Center in Normal, Illinois.  Ancel Glink attorneys David Silverman, Dan Bolin, and Greg Jones are presenting sessions discussing current legal and legislative issues impacting the planning, economic development, and real estate fields.  Catch up with your Ancel Glink attorneys at one of their sessions or stop by Ancel Glink’s booth in the exhibition hall to chat.

We’ll see you in Normal!

For more information, click HERE.

Thursday, October 1, 2015

Home Addresses of Public Officials Exempt From FOIA

Recently, the interpretation of the "private information" exemption of the Illinois Freedom of Information Act has come into question in the context of FOIA requests filed with a number of Illinois public bodies requesting the home addresses of members of a public body.  FOIA exempts from release records or information that fall within the definition of "private information":
(c-5) "Private information" means unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person.
The law seems pretty clear - the definition expressly references "home address" as exempt information. Thus, it certainly seems that the home addresses of public officials would be exempt from release. Earlier this year, an appellate court agreed with that interpretation in the unreported decision of Ward v. Weisbaum, 2015 IL App (3d) 130852-U

In that case, Mr. Ward filed a FOIA request with the secretary of state requesting the home addresses of certain county officials, including the recorder of deeds, deputy recorder of deeds, and a notary public. The state denied the request, citing the "private information" exemption, and Ward sued, arguing that the home addresses were not exempt. 

The appellate court ruled in favor of the state, and dismissed the case.  The court noted that the definition of "private information" specifically references home addresses, and therefore the public officials' home addresses were not subject to release under FOIA.  The court also noted that there was no provision of law that required disclosure of the home addresses.  As a result, the state did not violate FOIA in denying the FOIA request for the officials' home addresses.

Post Authored by Julie Tappendorf

Wednesday, September 30, 2015

Seventh Circuit Tackles Weed Ordinances

Discount Inn, a business owner in Chicago, sued the City after it was cited under the City's weed and fence ordinances. Discount claimed that the two ordinances were unconstitutional on two grounds. 

First, Discount alleged that the ordinances were unconstitutional as they imposed "excessive fines" in violation of the 8th Amendment. The appellate court rejected this argument, finding that the maximum fine ($1,200) was far from an astronomical fine that would be excessive in the sense of the 8th Amendment, and that Chicago has a valid interest in weed control that justifies an ordinance forbidding all weeds.

Second, Discount claimed that the weed ordinance is vague and forbids "expressive activity" protected by the First Amendment.  Discount argued that certain native plants might be mistaken for "weeds" based on the definition of weed as "vegetation that is not managed or maintained by the person who owns or controls the property on which all such vegetation is located and which, on average, exceeds ten inches in height." The court acknowledged that the ordinance might be overly broad in scope - as an example, the court noted that trees could fall under the definition of weed as they are not usually managed or maintained and are generally over ten inches in height.

However, the court did not accept Discount's argument that the free speech clause protects it from the weed ordinance, stating as follows:
But the plaintiff's claim that the free-speech clause insulates all weeds from public control is ridiculous...Its weeds have no expressive dimension. the plaintiff just doesn't want to be bothered with having to have them clipped.
The court expressed its concerns about extending "work of art" to weeds, stating that such an interpretation could lead to the following:
Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven's Fifth Symphony 24 hours a day through outdoor loudspeakers, all in the name of the First Amendment.
Although the court rejected Discount's claims, it did express concerns about enforcement of the City's weed ordinance and the difficulty in defining what is a "weed" and what is a native plant. As a result, municipalities may want to revisit their weed ordinances to make sure the definition is clear enough for property owners to understand and make sure are in compliance. The court provided an example of what it thinks a weed is:  "a wild plant growing where it isn't wanted."

So, in short, the court upheld the City's weed ordinance.  Discount Inn, Inc. v. City of Chicago (7th Cir. September 28, 2015).

The court also provided some pictures of "native plants" for our viewing pleasure:

Post Authored by Julie Tappendorf

Tuesday, September 29, 2015

Automatic Suspension for Refusal to Take Drug Test Unconstitutional

Section 11-501.6 of the Illinois Vehicle Code provides that a driver who is arrested for a traffic violation related to a fatality or other serious personal injury automatically consents to having his or her blood, breath, or urine tested for the presence of alcohol or drugs. According to the statute, refusal to submit to the testing results in an automatic suspension of the person’s driver’s license. 625 ILCS 5/11-501.6. On September 24, 2015, the Illinois Supreme Court held that his statute was unconstitutional “as applied," upholding a previous circuit court decision. McElwain v. Office of the Ill. Sec. of State, 2015 IL 117170 (Sept. 24, 2015). 

The plaintiff was involved in a traffic accident, in which he collided with a motorcycle. The driver of the motorcycle received substantial injuries, and the passenger died as a result of the injuries she sustained. On the day of the accident, plaintiff was not issued any tickets or asked to take any chemical tests.  However, during their investigation of the accident, the police discovered cannabis paraphernalia in plaintiff’s car.

Two days after the accident, plaintiff was asked to come to the police station, where he was questioned and admitted he smoked marijuana two weeks prior to the accident. The police issued plaintiff a traffic citation and asked him to submit to a drug test, but he refused. Because he refused to take the drug test, the Secretary of State suspended plaintiff’s driver’s license for three years pursuant to Section 11-501.6. After an administrative law judge denied plaintiff’s request to invalidate his license suspension, he filed a lawsuit claiming violations of his due process and fourth amendment rights.

The court first determined that the law did not limit the time in which the drug test must be performed. Second, the court found the law was applied to the plaintiff in an unconstitutional manner, because the police requested the drug test two days after the accident, rather than shortly after the accident. That, the court held, “is obviously much less probative of the question whether the person was driving while impaired, and carries the risk of serious prejudice by possibly indicating impairment at a time other than at the time of the accident.” The court did not, however, draw a bright line as to how soon after the accident the testing must be requested, stating that this was a task best left to the legislature.  

Post Authored by Elizabeth Barton, Ancel Glink

Monday, September 28, 2015

Update on Panhandling Ordinance Case

We posted a few weeks ago about a Springfield panhandling ordinance that was challenged, and partially struck down as unconstitutional.  The court in that case cited to the recent U.S. Supreme Court decision in Reed v. Gilbert that held that a town's sign regulations were unconstitutional as improper content-based regulations of speech. In the Springfield case, the 7th Circuit determined that the city's panhandling ordinance suffered from the same deficiencies as Gilbert's sign ordinance - i.e., that the municipal ordinances regulated speech based on its content - in the case of panhandling, the content or message was a request for money.

The City of Springfield recently went back to the "drawing board" and revised its ordinance to adopt a new regulation on aggressive panhandling.  That regulation would require panhandlers to stay at least 5 foot away from the people they are soliciting money from. The City Council's position is that the court did not invalidate the City's authority to regulate "aggressive panhandling."  

The City had previously asked the 7th Circuit to reconsider its decision, and hear the case "en banc" (i.e., by all of the 7th Circuit judges).  That request was denied, but the City has reported it will appeal to the U.S. Supreme Court.

UPDATE:  A lawsuit has already been filed to challenge the constitutionality of the revised panhandling ordinance. We will keep you posted on this challenge.

Post Authored by Julie Tappendorf

Friday, September 25, 2015

Court Stands by its Interpretation of Catastrophic Injury Under PSEBA

Under the Public Safety Employee Benefits Act (PSEBA), when a public safety officer suffers a catastrophic injury or is killed in the line of duty, the officer's employer is required to pay the entire health insurance premium for the injured employee, spouse, and dependent children. There is significant debate as to what constitutes a "catastrophic injury" under PSEBA. 

In 2003, in Krohe v. City of Bloomington, the Illinois Supreme Court held that "catastrophic injury" was synonymous with an injury resulting in a lien-of-duty disability under the Pension Code.  That issue was raised again in Vernon Hills v. Heelan, 2015 IL 118170, decided yesterday. 

Heelan was awarded a line-of-duty disability pension related to an injury he suffered when he slipped on ice responding to an emergency call. He subsequently filed for PSEBA benefits, but the Village denied the benefits and filed a complaint seeking a declaratory judgment as to whether it was responsible for paying the health insurance premiums. Although the Village acknowledged the holding in Krohe, it argued that the facts and circumstances of Heelan's injury were distinguishable. Both the circuit court and appellate court applied Krohe to Heelan's injury, and held that the Village was required to pay PSEBA benefits. 

The Illinois Supreme Court agreed, holding that a catastrophic injury under PSEBA is synonymous to a line-of-duty disability under the Pension Code.  As a result, once Heelan was awarded a line-of-duty disability pension, he was entitled to PSEBA benefits. The Court declined to depart from its decision in Krohe, and supported its decision by noting that the legislature could have, but has not, amended PSEBA after Krohe.

Post Authored by Julie Tappendorf

Thursday, September 24, 2015

City Prevails in School Bleacher Case

In what can only be reported as good news for municipalities in Illinois, the Illinois Supreme Court issued its opinion today in the high school bleachers case, ruling in favor of the city.  Gurba v. Community High School District.

Regular blog readers will recall that we have written about this case a number of times.  A local high school had installed bleachers at the high school without going through the zoning process. The high school argued that it was not subject to local zoning. Both the city and neighboring property owners challenged the school's position in court, and a circuit court and appellate court ruled in favor of the city. The case was appealed to the Illinois Supreme Court.

The opinion is pretty short, so it's worth a read.  The Court acknowledges that the case turns on the issue of whether a school district is subject to local zoning and land use regulations.  The Court first notes that municipalities have express statutory authority to regulate all land uses within their territory, subject only to "express statutory exclusions.  The court identified a few of these exclusions, including restrictions on the ability of municipalities to regulate political signs and ham radio antennas.  However, the Court noted that there is no statutory provision restricting the authority of a municipality to regulate zoning or storm water management on school property.  As a result, the Court held that under the plain terms of the Municipal Code, school property is subject to municipal zoning laws. The Court also noted that the City had broad home rule authority to zone and regulate land uses.  

The Court rejected the school district's argument that zoning and land use regulations interfere with the district's statutory authority over public education, as well as its attempt to extend the statutory exemption from local building regulations to zoning and land use regulation.

The Court's conclusion was quite simply put:
As a home rule municipality, the City has the power to regulate land use within its jurisdiction through zoning. There is no statute which exempts school district property from the exercise of the City’s zoning laws. Accordingly, we hold that the bleacher construction project undertaken by the Board and the District is subject to the City’s zoning and storm water ordinances.
Post Authored by Julie Tappendorf

Wednesday, September 23, 2015

A Motion to Enter Closed Session for "Personnel" is Not Sufficient

The 7th binding opinion from the PAC office deals with the Open Meetings Act and is the subject of today's blog post.  In PAC Op. 15-007, the PAC found a finance committee of a county board in violation of the OMA relating to a closed session.

The PAC's review of this matter was initiated by a local reporter, who claimed that the finance committee improperly went into closed session at its meeting.  First, the reporter argued that the committee did not state the reason why it was going into closed session. Second, the reporter claimed that the topics discussed in closed session were not appropriate subjects.  The committee responded that it discussed two matters in closed session: (1) a county employee hiring freeze and (2) the termination of an employee position. 

The PAC requested the minutes and recording from the closed session, but the committee could not provide a copy of the verbatim recording because it responded that the recorder was not functioning properly.  In its opinion, the PAC first determined that the committee failed to comply with Section 2a that requires the public body to identify the applicable exemption before going into closed session. The minutes noted that the body made the following motion to go into closed session:
Member Friedrich moved and Member Pitman seconded to enter into executive session to discuss personnel. The motion passed unanimously.
According to the PAC, "a mere reference to 'personnel' does not adequately identify any exception that authorizes a public body to close part of a meeting."  Because the committee failed to adequately disclose what personnel issue it would be discussing (i.e., appointment, employment, compensation, discipline, performance, or dismissal), it violated 2a of the OMA.

Second, the PAC determined that only a portion of the committee's closed session discussion of elimination of a county employee position was a proper discussion - that portion that focused on the evaluation of a specific employee - but that any part of the discussion that related to budgetary reasons to eliminate the position was required to be conducted in open session.

Finally, the PAC rejected the committee's argument that the hiring freeze discussion was appropriate under the "collective negotiating matters" exemption because the county was not currently in any negotiations with union representatives. Instead, the county was discussing a county-wide hiring freeze that is not authorized in closed session.

The lesson to gain from this opinion is that a mere reference to "personnel" as a reason to go into closed session will not cut it with the PAC.  There must be more detail in the motion. For example, if the public body wants to go into closed session to talk about a disciplinary issue with a specific employee, the motion should reference "discipline or performance of a specific employee" rather than simply "personnel."  

Post Authored by Julie Tappendorf

Tuesday, September 22, 2015

FOIA Amended to Address Severance Agreements

Last week, the Illinois General Assembly enacted P.A. 99-0478 amending the Illinois Freedom of Information Act to specifically address severance agreements. Section 2.20 of FOIA previously provided that settlement agreements are public records subject to release under FOIA (except that exempt information within the agreement can be redacted). That section has been amended to treat severance agreements the same as settlement agreements.  The Act also modified the definitions section of FOIA to include a definition of severance agreements as follows: "a mutual agreement between any public body and its employee for the employee's resignation in exchange for payment by the public body."

The law does not take effect until June 1, 2016. However, based on recent decisions by the PAC office, the PAC may already be interpreting "settlement agreement" to include severance agreements.

Post Authored by Julie Tappendorf

Friday, September 18, 2015

Challenge to TIF Rejected by Court

Rarely do the courts issue opinions relating to the Illinois TIF law - maybe because the law itself is so complicated or rarely challenged.  This week, however, an appellate court addressed a challenge that the City of Bloomington failed to comply with provisions of Tax Increment Allocation Redevelopment Act. Specifically, the Devyn Corporation (an owner of property located within the TIF district) filed a lawsuit claiming that the City failed to comply with certain accounting and recordkeeping functions of the TIF law, and that the TIF should be terminated because the redevelopment plan had not been implemented by the estimated date of completion.  Finally, the plaintiff argued that the City violated both the Act and the redevelopment plan by levying and collecting taxes after the estimated date of completion.

The court rejected the plaintiff's argument, ruling in favor of the city on all counts.  First, the court said that plaintiff had other available remedies for his requests for documents, including FOIA. The court also held that the estimated date for completion was just that - an estimate - and did not operate to terminate the TIF or render the City's levy of taxes unlawful.  Devyn Corp. v. City of Bloomington, 2015 IL App (4th) 140819.

Post Authored by Julie Tappendorf

Thursday, September 17, 2015

New Partial Exemption From Overtime Comes to the Aid of Illinois Public Employees

Over the years, the 12 hour shift in police departments has grown in popularity. For officers, working a twelve hour shift translates into an increase in days off throughout the year. For the department, staffing two instead of three shifts a day often results in reduced overtime costs. It’s always made sense that dispatchers should work the same schedule. The only problem is that a 12 hour shift schedule results in employees working under 40 hours in some weeks and over 40 hours in other weeks. Unlike the specific partial exemption under the Fair Labor Standards Act that applies to police and firefighters, dispatchers and other public employees who do not meet the definition for that partial exemption are entitled to time and one-half pay for hours worked over 40 in a week, regardless of whether the employee’s hours were under 40 the week before.

Public safety departments were forced to either keep the dispatchers on a different, eight-hour schedule, than sworn employees, or pay overtime resulting from the 12-hour shifts.

Effective January 1, 2016, an amendment to the Illinois Minimum Wage Law will give many public employers some relief to this dilemma. The amendment creates a new partial exemption as follows:
Any employee who is a member of a bargaining unit recognized by the Illinois Labor Relations Board and whose union has contractually agreed to an alternate shift schedule as allowed by subsection (b) of Section 7 of the Fair Labor Standards Act of 1938. 820 ILCS 105/4a(2)(J).
The alternate shift schedules, as defined in Section 7(b) of the FLSA are as follows:
(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees…which provides that no employee shall be employed more than one thousand and forty hours during any period of twenty-six consecutive weeks; or 
(2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees… which provides that during a specified period of fifty-two consecutive weeks the employee shall be employed not more than two thousand two hundred and forty hours and shall be guaranteed not less than one thousand eight hundred and forty-hours (or not less than forty-six weeks at the normal number of hours worked per week, but not less than thirty hours per week) and not more than two thousand and eighty hours of employment for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum workweek applicable to such employee under subsection (a) of this section or two thousand and eighty in such period at rates not less than one and one-half times the regular rate at which he is employed.
Although the problem with alternative shift schedules most commonly arises in police and fire departments because they require 24 hour operation, this new legislation will allow public employers greater flexibility to create schedules that work for all of their unionized staff.

Post Originally Authored by Margaret Kostopolus, Ancel Glink

Wednesday, September 16, 2015

City's Mobile Home Park Rent Control Ordinance Survives Challenge

Rancho de Calistoga is a mobile home park in Calistoga, California that was developed in 1970.  In 1984, the City enacted an ordinance that allowed mobile home park tenants to challenge rent increases. That ordinance was amended several times over the years. In 2007, the City adopted a rent stabilization ordinance that restricts any annual rent increase to the CPI or 6% of the base rent. It also establishes an administrative appeal process for park owners to seek a higher rent increase. 

In 2010, Rancho proposed to increase park rent from $471.39 to $625 per month. Through its administrative appeal process, the City rejected the request, but allowed a rent increase to $537.59 per month. Shortly after that ruling, Rancho sued the City, claiming that the application of the rent stabilization ordinance to Rancho violated the Takings Clause and its due process and equal protection rights. 

The case made its way to the Ninth Circuit Court of Appeals, which dismissed all of Ranch's claims in Rancho de Calistoga v. City of Calistoga.

First, the court dismissed Rancho's regulatory takings claims, finding that the ordinance did not rise to the level of a constitutional taking where Rancho could not establish it had an investment-backed expectation to be free from rent control (or any regulation).

Second, the court rejected Rancho's self-styled "private as-applied takings" claim, finding that it was really a thinly veiled facial challenge to the rent control ordinance which was time-barred.

Third, the court dismissed Rancho's due process claims finding that the claim was covered by the Takings Clause, which had already been addressed. 

Finally, the court dismissed Rancho's equal protection claim because the City had a rational basis for adopting and applying the rent control ordinance, and the City's conduct was neither politically motivated or otherwise arbitrary.

Post Authored by Julie Tappendorf