Friday, March 27, 2015

School Zoning Bill Passes Senate, Now Goes to House

Good news for municipalities - yesterday, the Illinois Senate unanimously passed Senate Bill 36, the bill that amends the Illinois School Code to expressly state that school districts are subject to local zoning ordinances.  The bill will now go to the House.  

You can read about the bill on our earlier blog posts here.  You may recall that the legislation was proposed in response to the lawsuit over the Crystal Lake High School's decision to expand their bleachers without following local zoning standards. The appellate court had ruled against the school district in that case, and the school's appeal is pending with the Illinois Supreme Court.

Post Authored by Julie Tappendorf

City Immune from Flooding Lawsuit

In 2006, the Chicago area was hit with a two-day heavy rainstorm that caused widespread flooding. A group of residents of Chicago Heights sued the City after their homes were damaged by flooding. They claim that the City was negligent in allowing the City's sewer system to overflow into their homes.  The City countered that it was immune from suit under the Tort Immunity Act.  The appellate court agreed, and ruled in favor of the City in an unpublished decision, Nichols v. Chicago Heights, 2015 IL App (1st) 122994-U.

The appellate court supported its decision on the basis that the City was protected by discretionary immunity under section 2-201 of the Tort Immunity Act.  For that section to apply, the City's act or omission (in this case, maintenance or operation of the City sewer system) must be both a "determination of policy" and an "exercise of discretion."  Where a municipality engages in a program of public improvement (rather than an implementation of the program), the act or omission is discretionary rather than ministerial.  In this case, the City was clearly acting in its discretionary function in planning its municipal-wide sewer system improvement program, and establishing priorities for constructing those improvements within the City's limited budget.  As a result, the City was immune from the plaintiffs' lawsuit.

Post Authored by Julie Tappendorf

Thursday, March 26, 2015

Parody Twitter Case Moves Forward Against City

From Strategically Social:  We've written before about the Twitter account that was set up to parody Peoria Mayor Jim Ardis last year.  The account name was @peoriamayor, and the Peoria Mayor's photograph was used as the account "avatar."  The account's biography read "I am honored to serve the citizens of our great city." The Twitter account was set up by Jon Daniel, a 29 year old resident of Peoria, who posted a series of tweets about the Mayor using drugs and associating with prostitutes.  When the City learned of the Twitter account, it contacted Twitter and the account was shut down shortly thereafter, according to news reports.  

Last summer, Mr. Daniel (with some help from the ACLU) filed a civil rights lawsuit against the City of Peoria, Mayor Ardis, and a number of other City officials claiming that the City and officials conspired to violate Mr. Daniel's constitutional rights.  The complaint alleges that the City violated his First Amendment rights, as well as his Fourth Amendment rights when police searched his home and seized his computer and other property as part of its investigation of potential criminal conduct in impersonating a public official (the States Attorney declined to prosecute Mr. Daniel). Mr. Daniel asks that the court enjoin the city from engaging in future conduct that suppresses his freedom of speech rights and requests an award of unspecified compensatory and punitive damages.

Recently, a federal judge denied the City's motion to dismiss the case, which means the case will proceed to discovery, and possibly a trial on the merits of Mr. Daniel's constitutional claims. If the case does go to trial, it would like be another year before the case is heard.

Post Authored by Julie Tappendorf

Wednesday, March 25, 2015

Vacancies in Office - Comparing U.S. Congress to Municipal Board Vacancies

Illinois residents (and really anyone who keeps up with political news), were probably not too surprised to see Representative Aaron Schock resign from office recently.  There was no sign that the questions about his expenditures while in office were going away any time soon, and he was facing a very public investigation.  What might be interesting to local government officials is the method used to fill his vacant seat.  The process is quite different than the one that applies to vacant municipal offices.

When a member of the U.S. House of Representatives resigns and the vacancy is more than 180 days before the next general election, the Illinois Election Code provides that the Illinois Governor has five days to schedule a special election to fill the vacancy, which election must occur within 115 days of that action.  10 ILCS 5/25-7.  What is interesting about this process is there is no provision for filling the temporary vacancy until the special election - the office simply remains vacant until that time.  

Compare this process to the process used to fill a vacancy in the office of U.S. Senate, which allows the Governor to make a temporary appointment to fill the vacancy until the next election at which representatives in Congress  are elected.  10 ILCS 5/25-8.  Many of you may recall the last time this process was used - when former Governor Blagojevich had the power to appoint the replacement to fill President Obama's former U.S. Senate seat.  

So, how is this different from the municipal vacancy process?  First, the process for filling a vacancy on a City Council or Village Board is quite complicated, and will depend on a number of factors, including the date of the vacancy in relation to the upcoming election schedule, the time left in the current term of office, and the reason for the vacancy.  Unlike the process for filling other vacancies, the process for municipal office vacancies is not set out in the Election Code, but is located in the Municipal Code.  65 ILCS 5/3.1-10-50.

Let's go through the steps for filling a vacancy in the office of village trustee.  A village trustee submits a letter of resignation to the board that is effective immediately.  The trustee has 25 months left in his 4 year term.  The resignation is submitted today, which is 2 1/2 weeks before the consolidated general election.  How is this vacancy filled?

There are two methods of filling a vacancy in the office of village trustee - either election or appointment by the village president with the advice and consent of the board.  The first process (election) applies if a vacancy occurs in an elective office with a 4 year term, with at least 28 months left on that term, and the vacancy occurs at least 130 days before the general municipal election next scheduled.  Here, the trustee has only 25 months left on his term and the election is in 2 1/2 weeks.  So, this process would not apply.

That means that the appointment process is the correct procedure.  The village president has 60 days to make an appointment to fill the vacancy, which appointment then goes to the village board for approval.  The board has 30 days to act on that appointment.  If that appointment fails, then the president can appoint a second person and bring that appointment to the board for approval.  If the second appointment fails, then the president can make a temporary appointment from one of the two appointees who failed to receive approval, without the approval of the board.

Post Authored by Julie Tappendorf

Tuesday, March 24, 2015

No Joke - April 1st Deadline to Post Elected Officials' Emails on Website

Last year, the Illinois General Assembly passed Public Act 98-0930, requiring all units of local government (municipalities, park districts, libraries, townships) and school districts to post an email address or some other mechanism on their website to allow members of the public to contact their elected officials.  The law was effective January 1st, but public bodies have 90 days to comply. That deadline (April 1st) is approaching, so we thought it would be worth a reminder post.

There are a few options for complying with the new law.  For example, a government could post one universal email address (such as villageboard@nameofmunicipality.com) where users can contact their elected officials. Alternatively, a government could post individual email addresses for each of the elected officials.  A third option could be use of a "contact us" form that allows users to select a particular elected official as the recipient of the email.

Whatever option you choose, make sure that the website information is easily available or searchable from the government's home page by use of a hyperlink.

Only 8 days left, so make sure you update your website by April 1st!  No April Fools joke here.

Here's a summary of the Q&A we posted a couple of months ago about the new law:


1.   What is the deadline for compliance?

Government bodies subject to the new law must comply within 90 days of the effective date, or by April 1, 2015

2.  Are townships subject to the new law?

Yes.  The new law specifically applies to school districts and "units of local government."  Units of local government are defined in state law to include "counties, municipalities, townships, special districts, and units designated as units of local government by law."  That would also include park districts, library districts, and other special districts and local government units. The law does exempt those units of government that serve a population of 1,000,000 or more, however.

3.  We don't have a website - does the law still apply to us?

The law only applies to units of local government and school districts that have a website.  There is no requirement that you establish a website if you don't already have one.

4.  We don't have a website, but we do have a government Facebook page - do we need to post the information on that site?

No, the new law excludes social media and networking sites from the definition of "Internet website."

5.  Our elected officials do not have official government email addresses - they all use gmail or some other personal email service. Do we have to post their personal email addresses on the website?

The law does not mandate that you post individual email addresses of elected officials (official or personal) - one of the alternative methods of complying with the law would be to set up a single, uniform email address where members of the public can contact the elected officials.  For example, you could set up an email address called electedofficials@district.com (or some other variation) and post a hyperlink to the email address or a link to that information on the home page of your website.

6.  We already have a "Contact Us" form on our home page - will that work?

That would be an alternative mechanism to comply with the law if (1) the "contact us" form allows the user to select the governing board (i.e., "village board" or "school board") as a recipient of the electronic communication and (2) a hyperlink to the information or the form is located on the home page of the website.

7.  We already include our elected officials' emails on the "village board" page of our website - do we need to do anything else to comply?

You would need to add a hyperlink on the home page of your website that directs users to the village board page where they can find the emails.

8.  We are home rule - are we exempt?

No, the law contains a home-rule preemption, meaning that home rule governments are subject to the law.

Post Authored by Julie Tappendorf

Monday, March 23, 2015

College Board Violated OMA by Discussing Budget in Closed Session

I was wondering when we might see another opinion from the PAC since it had been January since that office issued its last binding opinion.  On Friday of last week, the PAC issued its third binding opinion of 2015.  Anyone want to guess how the PAC ruled?   

In PAC Op. 15-003, a reporter filed a complaint with the PAC alleging that the Waubonsee Community College board of trustees violated the Open Meetings Act by discussing improper topics in closed session.  According to the complaint, a newspaper reporter was looking through a window into the room where the closed session was being held and saw slides being projected on a screen relating to the financial condition of the college.  The reporter filed the complaint, and the board asserted two OMA exemptions: (1) compensation of employees and (2) lease or purchase of property.

The PAC determined that although the board did discuss issues relating to the compensation of employees, it also discussed general budgetary matters that were not proper topics for closed session in violation of the OMA.  The PAC also determined that while the board did discuss the sale of property, it did not discuss the purchase of property. Consequently, the PAC found the board in violation of the OMA for discussing topics outside of the exemptions cited for going into closed session.  The PAC ordered the board to make available to the public a portion of the closed session minutes, a portion of the verbatim recording, and copies of the slides.

The PAC did not discuss the appropriateness of a reporter looking into a window into a closed session, or the potential for the reporter to gain access to information that was appropriate for closed session.

Post Authored by Julie Tappendorf

Friday, March 20, 2015

Upcoming Webcast on the Endangered Species Act

For you land use folks out there, later this month the Planning and Law Division of the APA is hosting a webcast on the Endangered Species Act.  The details are below:

Title:  Lessons from the Sage Grouse: Impacts of the Endangered Species Act on Local Land Use Planning" 

Date/Time:  Tuesday, March 31st from 3:30 to 5:00 PM EST. 

Registration:  $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. 

Description:  This webcast explores what an ESA listing may mean for local governments, how local or regional efforts can be incentivized to cooperate with state or federal policy, how to break down the ‘sue-settle’ model for the betterment of the species, and whether the ESA requires an overhaul and if that is possible. 

Speakers:  

  • Fred Jarman of the Building & Planning Department for Colorado’s Garfield County
  • John Harja of Utah’s Public Lands Policy Coordinating Office
  • Dr. Rob Roy Ramey of Wildlife Science International
  • Damien M. Schiff of Alston & Bird
  • Sorell E. Negro of Robinson & Cole will moderate the panel.

Post Authored by Julie Tappendorf

Thursday, March 19, 2015

Interesting Story on the PAC Backlog of FOIA Appeals

The Chicago Sun-Times recently reported on the status of FOIA appeals with the Attorney General's office of the Public Access Counselor.  In the story, the Sun-Times reports that the PAC has yet to respond to more than 2,800 appeals of FOIA requests.  According to the story, 1,200 of these unanswered appeals were filed more than 2 years ago.  That's a lot of unanswered appeals.  With this type of backlog, it's not clear how the PAC is going to keep up with the more than 250-350 new appeals that come in each month.  

On this blog, we have provided summaries of all of the PAC's binding opinions.  Loyal readers know that there aren't very many of them - this year, for example, the PAC has only issued 2 binding opinions, and only 62 opinions have been issued in the past 5 years.  Although the PAC's binding opinions can be found on the Attorney General's website, most of the PAC's decisions on FOIA complaints come in the form of advisory rather than binding opinions.  It isn't clear how many advisory opinions have been issued, though, since the PAC hasn't made that information easily available for the public to review. Advisory opinions are not available on the Attorney General's website, so they are not helpful in providing any guidance to public bodies or requesters.  

Given that the PAC is the agency tasked with making sure that public bodies operate in a more transparent manner and that public bodies respond to FOIA requests in a timely manner (5 days, in most cases), shouldn't that agency set a good example by (1) posting advisory opinions (or summaries of those opinions) on its website and (2) issuing timely opinions on appeals?  

Post Authored by Julie Tappendorf

Wednesday, March 18, 2015

Candidate Signature Requirements are Mandatory

A couple of months ago, we reported on an appellate court decision finding that the incumbent candidate for Mayor of East St. Louis could remain on the ballot even though he did not file nominating petitions with the minimum required number of signatures.  You can read about that case here.  The incumbent mayor had filed petitions with 171 signatures, 35 more than the minimum required.  However, 48 of those signatures were invalidated in an election challenge, leaving him with only 123 signatures, 13 short of the minimum required to run for office. Nevertheless, the electoral board found substantial compliance with the signature requirement. That decision was upheld by the trial and appellate courts.

The case was subsequently appealed to the Illinois Supreme Court, which issued its decision on Monday reversing these rulings, and ordering that the incumbent mayor's name be removed from the ballot.  Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL 118929.

The Illinois Supreme Court first reviewed the minimum signature requirement language of section 10-3 of the Election Code, finding it to be mandatory. The Court likened the minimum signature requirement for nominating petitions to the vote requirement to win an election, stating as follows:
When the law provides that a certain threshold is required in order to win an election, it is understood that if one fails to attain the threshold, one loses. Runners-up have no claim to office on a theory that they came close enough. So it has always been in American electoral process. So it remains.
The Supreme Court rejected Mayor Parks' argument that he should remain on the ballot because he demonstrated a "'minimal appeal to the voters," finding that the mathematical formula for determining the minimum signature requirements is "clear and certain in its application" and "excludes any possibility of impermissible political bias."  Although Illinois courts have recognized that substantial compliance can satisfy certain mandatory provisions of the Election Code, "close enough" cannot satisfy the minimal signature requirements. Anything less, the Court noted, could lead to subjective and variable rulings by local electoral boards and officials.

Because Mayor Parks failed to meet the threshold signature requirement to run for reelection, the Court ruled that the electoral board erred in denying the objection to his candidacy. As a result, Mayor Parks is not qualified to run for reelection.

Post Authored by Julie Tappendorf

Tuesday, March 17, 2015

Pre-Suit Notice Mandatory in Zoning Lawsuit

In Illinois, there are zoning statutes that apply in Chicago, and zoning statutes that apply everywhere else in the state.  In Scott v. Chicago, 2015 IL App (1st) 140570, the First District Appellate Court dealt with the former in a case interpreting the pre-suit notice requirement of Section 11-13-8 of the Illinois Municipal Code.  Section 11-13-8 of the Illinois Municipal Code states that in municipalities of 500,000 or more population (i.e., Chicago), a plaintiff seeking declaratory relief to invalidate a zoning decision must send written notice to all property owners within 250 feet of the property that is the subject of a zoning decision not more than 30 days before filing a lawsuit.

This case involved a challenge to the City's rezoning approval of property to allow the development of a 13-story mixed use building.  Neighboring property owners filed suit against the City and developer, asking the court to declare the rezoning invalid as an arbitrary and capricious decision in violation of the property owners' substantive due process rights. The City and developer filed a motion to dismiss the plaintiffs lawsuit based on the plaintiffs' failure to serve written notice to all property owners within 250 feet of the rezoned property, as required by Section 11-13-8. The trial court granted the motion to dismiss, and the plaintiffs appealed.

The appellate court reviewed the requirements of Section 11-13-8.  First, the court acknowledged that the pre-suit notice requirement only applies in Chicago.  Second, the court noted that the pre-suit notice requirement is mandatory.  Third, the court found that the plaintiffs failed to strictly comply with the pre-suit notice requirement because they did not serve notice on all property owners within 250 feet of the rezoned property. Finally, the court rejected the plaintiffs' argument that it "substantially complied" with the pre-suit notice requirement, stating that it was "not persuaded that the legislature condoned less than strict compliance with the notice statutes." Because the plaintiffs failed to serve 26 property owners, they did not comply with the mandatory notice requirements, warranting dismissal of their complaint.

Post Authored by Julie Tappendorf

Village Ordinances Banning Public Nudity and Alcohol Consumption Reviewed by 7th Circuit

In celebration of St. Patricks Day, we give you booze....well, we give you a booze-related case.

The Village of Dix, Illinois, is a "dry" community, where the sale of alcohol is banned.  In 2010, a nightclub called Foxxxy Ladyz opened up in Dix. The club featured nude dancing and allowed patrons to bring in their own alcoholic beverages (BYOB).  A few months after the nightclub opened, the Village passed 3 ordinances that affected Foxxxy Ladyz business.  The first ordinance banned open containers of alcohol in public places within the village (public places included any privately owned property open to the public). The second ordinance prohibited public nudity in the Village. The third ordinance prohibited the possession of liquor in public accommodations. All three ordinances stated they were aimed at preserving "social order, health, welfare, and safety of citizens."
  
A few months after the ordinances went into effect, the Dix Village Board notified Foxxxy Ladyz that its continued operations violated the ordinances.  The owner of Foxxxy Ladyz then filed suit in federal court, claiming that the public nudity ban violates the First Amendment and that the Village lacked authority to enact the alcohol bans.  

The district court dismissed the complaint, and the owner appealed to the Seventh Circuit Court of Appeals.  That court recently issued an opinion in Foxxxy Ladyz Adult World, Inc. v. Village of Dix (7th Cir., March 10, 2015).

First, the 7th Circuit agreed with the district court's dismissal of the plaintiff's challenge to the ordinances banning alcohol.  The Court determined that the Village had authority under the Illinois Liquor Control Act to regulate the consumption of alcohol in public.  Specifically, the Court held that a municipality that lawfully banned liquor licenses altogether has implicit authority to impose additional restrictions that advance its status as a dry community. That is what Dix did in enacting ordinances prohibiting public consumption of alcohol and open containers in public. The Court also rejected the plaintiff's argument that the alcohol ban violated its constitutional rights, finding no constitutional right to consume alcohol while watching  a nude show.

However, with respect to the nudity ban enacted by Dix, the 7th Circuit reversed the district court's dismissal of this claim.  The court applied the constitutional standards established by the U.S. Supreme Court for nude dancing and other public nudity regulations, finding that Dix did not support its ordinance with sufficient evidence that nude dancing generates adverse secondary effects to satisfy these constitutional standards.  Dix offered no data or studies to indicate that nude dancing or other publicly nudity would cause any significant harm that would outweigh the burden on protected freedom of expression rights.  As a result, the Court remanded the case back to the district court for further proceedings, and to allow Dix to produce support for its nudity ban.

Post Authored by Julie Tappendorf

Monday, March 16, 2015

New State Rules Approved for Local Records Retention

The Joint Committee on Administrative Rules (JCAR) recently approved changes to the administrative rules for the State Records Commission and the Local Records Commissions (Cook County and everyone else).  The changes are pretty significant, particularly with respect to records retention by local governments and agencies subject to the Local Records Commission rules. 

Government officials and employees who are responsible for records retention for their government agency or body should review the changes and determine how they will affect the local records retention policies, particularly as they relate to the digitization and management of electronic records.  
Some of the changes include:
  • new definitions, including the following:
    • born-digital records
    • digital surrogate
    • digitization process
    • electronic microimaging
    • administrative, fiscal, and legal values
    • metadata
    • transitory messages
  • modification from 60 days to 30 days to submit disposal certificate to commission before destroying or disposing of records
  • detailed instructions on converting records to digital format
  • standards for replacing analog records with digital surrogates
  • management of electronic records
  • recommended data formats for long term storage of various electronic records
  • guidelines for storing electronic records
You can review a copy of the new rules (changes depicted in underline/strikeout text) that apply to Cook County here.  The rules that apply to all other counties can be found here.

Post Authored by Julie Tappendorf