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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, November 20, 2017

Local Governments Must Formally Adopt Sexual Harassment Policies

Last week, the Governor signed into law P.A. 100-0554. The new law requires local governments to take formal action to adopt sexual harassment policies. Within 60 days of the effective date of the new law, each unit of local government must adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. 

The policy must include, at a minimum, the following provisions:

1. A prohibition on sexual harassment.
2. The procedure for reporting an allegation of sexual harassment.
3. A prohibition on retaliation for reporting an allegation of sexual harassment.
4. The consequences for violating the sexual harassment policy and for knowingly making a false report.

While most units of local government probably already have a sexual harassment policy in place, it is important that government entities review existing policies for compliance with the new statutory requirements and take formal action to adopt or ratify the sexual harassment policy by resolution or ordinance. According to the General Assembly's website, the law's effective date is November 16, 2017, meaning that local governments have until January 15, 2018 to adopt an ordinance or resolution approving a policy that complies with the new law.

The new law also contains a number of other regulations relating to sexual harassment, including training requirements for state officials and lobbyists, as well as other regulations. The language pertaining to the new policy requirements for local governments language is set out below:
No later than 60 days after the effective date of this amendatory Act of the 100th General Assembly, each governmental unit shall adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. The policy shall include, at a minimum: (i) a prohibition on sexual harassment; (ii) details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights; (iii) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under this Act, the Whistleblower Act, and the Illinois Human Rights Act; and (iv) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

Post Authored by Julie Tappendorf

Monday, November 13, 2017

Reminder to Adopt Annual Schedule of Meetings

A quick reminder to public bodies in Illinois - every public body that is subject to the Illinois Open Meetings Act must give public notice of its annual schedule of regular meetings at the beginning of each calendar or fiscal year. Most public bodies tend to adopt the annual schedule of regular meetings for the following year in December, which is just one month away (can you believe it?!). The annual schedule must include the times and places of all regular meetings. 5 ILCS 120/2.03.

Section 2.03 applies to "each body subject to this Act." That means that subsidiary bodies, including committees of the board or council and other advisory boards and commissions, are subject to this requirement. The PAC office of the Illinois Attorney General has taken the position that if a public body does not adopt an annual schedule of regular meetings, then every meeting of that particular public body is considered a "special meeting," so the public body must follow the requirements for special meetings under the OMA.  

Post Authored by Julie Tappendorf 

Friday, November 10, 2017

Court Upholds Chicago's Public Nudity Ordinance

The Seventh Circuit Court of Appeals recently ruled against a woman who sued the City of Chicago after she was cited for public nudity when she participated in GoTopless Day 2014. Tagami v. City of Chicago, (7th Cir. Nov. 8, 2017). 

Ms. Tagami participated in the 2014 event by walking around the streets of Chicago topless. She was cited for violating a Chicago ordinance that prohibits public nudity. She subsequently filed a lawsuit against Chicago, claiming that the ordinance was unconstitutional because it violated her free speech rights under the First Amendment and unlawfully discriminates against her on the basis of her gender. The district court had dismissed her lawsuit, and she appealed to the Seventh Circuit.

First, the Seventh Circuit found that Chicago's ordinance prohibits conduct, not speech. The court acknowledged that some conduct may be protected as "expressive" speech if the conduct conveys its own message without additional speech. Being in a state of nudity, the court held, is not an inherently expressive condition. Even if the conduct was expressive speech, the court determined that the Chicago public nudity ordinance would survive strict scrutiny because its purpose (to promote moral norms and public order) were both self-evident and important.

Second, although the court found that the ordinance does treat men and women differently, the different classifications and treatment under the ordinance did not rise to the level of discrimination, given the inherent physical differences between men and women. 

Post Authored by Julie Tappendorf

Thursday, November 9, 2017

Audio Recordings of Open Meetings Not Exempt Under FOIA

It's been awhile, but the PAC office of the Illinois Attorney General just released its 12th binding opinion for 2017.  In PAC Op. 17-012, the PAC found a public body in violation of FOIA when it denied a request to release audio recordings of meetings of the public body.

A reporter requested, among other records, copies of audio recordings of all board meetings in 2017. The public body denied the request, claiming that the recordings fell under the preliminary records exemption of section 7(1)(f) of FOIA. The reporter appealed the denial of his request for the audio recordings to the PAC. 

The PAC first reviewed section 7(1)(f), finding that it applied only to records "that reflect the give and take of the deliberative process" and not to information that is "already public knowledge." The PAC rejected the public body's argument that the audio recordings were preliminary because they are used in the preparation of the official minutes of the meeting. In support of its opinion, the PAC cited a West Virginia case finding that recordings of meetings were not exempt under a West Virginia FOIA exemption that protects "[i]nternal memoranda or letters received or prepared by any public body." The PAC also noted that FOIA permits a public body to withhold audio recordings of closed sessions, but that the statute does not contain similar language for recordings of open sessions.

In short, the PAC's binding opinion finds that audio recordings of open meetings are not exempt under 7(1)(f) of FOIA. 

Post Authored by Julie Tappendorf

Wednesday, November 8, 2017

Bill Would Impact Municipal Accounting Methods

On November 7, 2017, the Illinois House Government Transparency Committee will hear testimony on HB 4104.  That bill was introduced to address confusion about acceptable bases for municipal accounting that resulted from letters the Office of the Illinois Comptroller sent to many municipalities in the spring. The Comptroller letters notified municipalities that they would be required to file audits on an accrual basis of accounting. Although cash basis of accounting is currently permitted under Illinois statute, the Comptroller took the position that the cash basis practice of many municipalities was prohibited, and municipalities that using cash basis for their audits would be fined. 

This bill would clarify that both methods of accounting, cash and accrual, are acceptable methods of filing audits that meet generally accepted accounting principles. The bill is on second reading and may be amended prior to being read on the House floor.  We will keep you posted on this bill.

Post Authored by Jessi DeWalt, Ancel Glink

Tuesday, November 7, 2017

Bill Would Expand Campaign Disclosure Laws to Cover Social Media

Political campaigns have increasingly used social media as a platform to deliver communications and messages about candidates for elected office to constituents. Perhaps recognizing the impact of these platforms, the Illinois General Assembly recently introduced a bill to amend campaign disclosure laws to expressly reference social media platforms. SB 2251

Section 9-9.5 of the Election Code currently requires political committees to disclose any expenditures the committees make on pamphlets, circular, handbill, Internet or telephone communication, radio, television and print advertisements directed at voters that mention a specific candidate running for office in an upcoming election. That section also requires that the political committee that pays for the ad identify itself in the communication. SB 2251 would amend that disclosure law to expand the disclosure requirements for expenditures on campaign advertisements on "any social media platform." 

The bill was just introduced in the Illinois senate last month. We will keep you posted on the bill as it moves forward.

Post Authored by Julie Tappendorf

Tuesday, October 31, 2017

City of Chicago Can Impose Real Estate Transfer Tax on Fannie Mae/Freddie Mac Transactions

The Seventh Circuit Court of Appeals just ruled that state and local taxing bodies can impose real estate transfer taxes on real estate transactions involving Fannie Mae and Freddie Mac. Federal National Mortgage Ass'n v. City of Chicago (7th Cir. Oct. 30, 2017)

The City of Chicago imposes a real estate transfer tax on the transfer of real property within the City. The obligation to pay the tax is on the buyer, not the seller. Chicago also imposes a "supplemental tax" that is paid by the seller unless the seller is exempt under state or federal law, and then it is imposed on the buyer. 

Buyers sued the City of Chicago after the real estate transfer tax was imposed on their purchase of property from Fannie Mae or Freddie Mac. They (and Fannie Mae and Freddie Mac) argued that they were not subject to the tax because Fannie Mae and Freddie Mac were exempt from taxation, so the real estate tax was preempted by federal exemption statutes. The district court agreed with the buyers, but the Seventh Circuit ruled against the buyers and Fannie Mae/Freddie Mac.

The Seventh Circuit rejected the buyers argument that the Supremacy Clause of the U.S. Constitution (providing that any state law that conflicts with federal law is not effective) applied and the real estate transfer tax was preempted by the federal tax exemption provisions. Although the federal statutes do exempt federal entities from local and state taxation, they do not exempt the parties who transact with exempt entities. In this case, the real estate property tax imposed by the City of Chicago was imposed on the buyers (private parties) and not on the sellers (federal agencies), so the federal tax exemption did not apply to the transaction. As a result, the Seventh Circuit held that the City of Chicago was not barred from collecting the real estate taxes from the buyers in these transactions.

Post Authored by Julie Tappendorf

Friday, October 27, 2017

IL Supreme Court Will Hear Two FOIA Appeals

In more FOIA news, the Illinois Supreme Court recently granted Petitions for Leave to Appeal (PLA) in two FOIA cases. The Court will hear Institute for Justice v. Ill. Dept. of Financial and Professional Regulation, and Perry v. Illinois Dept. of Financial and Professional RegulationBoth cases deal with disclosure of documents and the retroactive application of statutes.  

The issue in Institute for Justice is whether complaints regarding licensed cosmetologists and hair braiders are exempt retroactively under Section 4-24 of the Barber, Cosmetology, Esthetics, Hair Braiding and Nail Technology Act. The trial court found that no exemptions applied to the case, while the appellate court found that the Act applied retroactively to prevent disclosure of the complaints.  

The issue in Perry is whether the Civil Administrative Code of Illinois applies retroactively to prohibit disclosure of a complaint against plaintiff’s structural engineer’s license. The appellate court similarly found that the Code could be applied retroactively to prevent release of the records under FOIA.

We will monitor the status of these appeals - check the blog for updates! 

Post Authored by Erin Pell, Ancel Glink

Thursday, October 26, 2017

Court Protective Order "Trumps" FOIA in Recent Case

An Illinois appellate court recently addressed consolidated cases regarding the public disclosure and confidentiality of records from a grand jury investigation. These cases involved two separate FOIA requests to the City of Chicago for records pertaining to the investigation and special prosecution of an assault in 2004.  Both FOIA requests were denied by the City based on a protective order. 

The court ruled in favor of the City, finding that a court protective order "trumps" the disclosure requirements of FOIA. In re Appointment of a Special Prosecutor, 2017 IL App (1st) 161376 (October 20, 2017). The court determined that it was proper for the City to withhold documents because a court order commanded the City to do because as the protective order was issued based on the need for confidentiality.

The court did find, however, that the Special Prosecutor’s attorney fee invoices were releasable under FOIA, subject to redactions.   

Post Authored by Erin Pell, Ancel Glink

Wednesday, October 25, 2017

PAC Finds Law Firm Records Are Public Records Under FOIA

In a recent, non-binding request for review, the PAC found that  law firms that represent units of local government are performing a “governmental function” such that the law firm’s records are considered “public records” under FOIA.  2017 PAC 43089

A requester had filed a FOIA request with a school district, seeking all records mentioning and pertaining to an attorney and her law firm. The district responded, but withheld certain records held by its attorneys under Section 7(2) of FOIA, arguing that the records were not “public records.”  The PAC disagreed with the district, finding that the requested records are “public records” if they directly related to a government function that the law firm has contracted to perform for the district. Although the district argued that the law firm was not performing a governmental function, the PAC rejected that argument, finding that the law firm’s litigation services support the district’s education services.  As a result, the PAC ordered the school district to obtain any responsive records from the law firm and disclose them to the requester.

The PAC’s opinion does not address any exemptions that might apply to this request, such as attorney-client privilege. Presumably, the district can still assert those exemptions before turning over any responsive records as ordered by the PAC. 

Although this is merely an advisory opinion and binding on any other public bodies, it is a good reminder that public bodies should list all possible arguments and exemptions in their FOIA response letters, as well as their responses for requests for review to the PAC, because we never know when the PAC might try to make "new law" in one of its opinions. 

Post Authored by Erin Pell and Julie Tappendorf, Ancel Glink

Tuesday, October 24, 2017

Homeless Shelter Qualified as "Government Use" Under Zoning Code

Recently, a court considered a challenge to a change-in-use permit issued to a county housing authority and homeless shelter, finding that the shelter qualified as a "government use" under the zoning regulations and did not require a conditional use permit to operate. The Housing Authority of the County of Lake v. The Lake County Zoning Board of Appeals, et al. 

A housing authority took over ownership of property that had previously been used as a private assisted living facility.  The authority stopped operating the assisted-living facility, and the property stood vacant for several years.  After submitting a request for proposals for ways to use the vacant property, the housing authority entered into negotiations to lease the property to a not-for-profit organization called PADS. PADS sought to use the property as a transitional homeless shelter for chronically homeless adults.

The housing authority and PADS approached the county to determine what zoning approvals would be necessary for the operation of a homeless support program on the property. If the county classified PADS’ use as “assisted-living,” a conditional use permit was required.  However, if PADS’ use was classified as “government use,” no conditional use permit was necessary.  PADS submitted a change-in-use application to the county to change the use of the property from “vacant government” to “government use-no assembly space,” which would not require a conditional use permit. 

Shortly after the county planning director granted the change-in-use request, several residents appealed the director’s decision to the county’s zoning board of appeals (ZBA).  The county ZBA reversed the director’s decision, finding that the use of the property by PADS was not a “government use,” despite the fact that the housing authority owned the property. 

The court analyzed the county’s unified development ordinance, which classified “government use” as a “building or structure owned or leased by a unit of government and used by the unit of government in exercising its statutory authority.”  The residents argued that, since it was PADS that was using the property, and not the housing authority, the “government use” definition did not apply. 

The court disagreed with the residents' argument, citing the fact that the housing authority still owned the property.  The court also noted that the housing authority was authorized by state statute to contract with private entities to further its statutory goals of providing safe and sanitary housing for the disadvantaged. The court found that PADS’ use of the property to provide housing for homeless adults fit squarely within the housing authority’s statutory goals. 

Based on all of these findings, the court found that the “government use” classification was proper because the property was (1) owned by the housing authority, a unit of government; and (2) used by the housing authority in exercising its statutory authority to contract with private entities, like PADS, in order to further its statutory goals.  As a result, no conditional use permit was required.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, October 23, 2017

Suburbs That Mischaracterize Location of Sales Can Be Sued

A few years ago, the state legislature adopted a statute intended to prohibit municipalities from attempting to “manipulate” the location where retail sales occur for the purpose of diverting sales tax revenue to the municipality.  Section 8-11-21 of the Illinois Municipal Code prohibits municipalities from entering into sales tax rebate agreements with retailers that would result in the payment of sales tax to the municipality if, all other things being equal, the sale tax should have been distributed to another municipality based on the application of the tax allocation rules.

This statute recently came into play in City of Chicago, et al. v. City of Kankakee, et al., 2017 IL App (1st)153531. In that case, Chicago claimed that two suburban communities executed sales tax rebate agreements with out-of-state retailers to falsely characterize transactions as occurring in the suburbs, and  that because of that mischaracterization, these sales were not subject to the state’s “use tax.” The use tax is imposed on the sale of tangible personal property sold by out-of-state retailers that do not have a presence in Illinois where the item is used within Illinois. The use tax is collected by the state and then distributed to Chicago and others based on population and other factors. 

Why does it matter whether a retailer pays a use tax or sales tax?  The tax rate for both sales tax and use tax is 6.25%, so the amount of tax remitted by retailers who are required or allowed to pay each tax is the same.  However, the distribution of the tax receipts by the Illinois Department of Revenue is different for these two taxes.  For the sales tax, the State retains 5% and the remaining 1.25% is distributed to the local county and municipality where the sale occurs.  By contrast, for the use tax, the State retains 5% and the remaining 1.25% is distributed according to the following statutory calculation:  20% goes to Chicago, 10% to the RTA, 0.06% to the Madison County Mass Transit District, $3.15M to the Build Illinois Fund, and the remainder is distributed to more than 200 municipalities according to their proportionate share of the State’s population. 

Once you understand the distinction described above, it is easy to see that Chicago would receive 0.25% of the value of all retail sales from out-of-state retailers if the use tax applies. But, if the sale occurred in one of these two suburbs, Chicago would not share in any of the sales tax because that tax would go directly to the suburb. 

While the ultimate merits of the case have not been decided, the case is important because the appellate court held that Chicago, and the other municipal plaintiffs, could sue these two suburbs directly to seek payment of the share of the use tax to which it (or they) allegedly should have been entitled. We will certainly watch this case as it proceeds and keep you posted.

Post authored by Adam Simon, Ancel Glink