Wednesday, August 17, 2016

From the Workplace Report - First Amendment Protection for Police Officer

From Ancel Glink's sister labor & employment law blog, The Workplace Report With Ancel Glink 

Original post authored by Margaret Kostopulos

Although it seems backwards at times, public employers generally know by now that they can’t take action against an employee who speaks critically about the agency or circumstances within the agency if they are speaking as a private citizen about a situation that is of general concern to the public. In other words, public employees lose their protection under the First Amendment when they speak about matters that are related to their job. That’s pretty clear, but sometimes it’s not so easy to discern if the speech is related to the employee’s job.

Take the case of Kristofek v. Village of Orland Hills as an example. Kristofek was a part time police officer for the Village and a full time police officer for the Village of Lemont. Among his part time officer duties, he was responsible for issuing traffic violations. During the course of his duties, he stopped a driver and ultimately placed him under arrest for driving without insurance and driving with suspended plates. The driver apparently used his one phone call wisely because it wasn’t long before the mayor and the police chief started getting calls from politically influential people requesting that the citations be dismissed and the driver released from custody, which is just what happened.

A few months later Kristofek  watched an online training in his capacity with the Lamont police department about instances of official misconduct, causing him to become concerned that the Orland Hills chief was guilty of such when the chief voided the tickets and released the driver involved in his Kristofek’s arrest.  He first brought his concerns to one of his superiors, who shared it with another ranking officer and ultimately the issue was brought to the police chief.  When no action was taken in the department, Kristofek contacted the FBI.  You can probably guess what happened next – Officer Kristofek was fired.

Kristofek sued for violation of his First Amendment right to protected speech. The Village obtained a dismissal of the suit in the lower court on the argument that Kristofek was speaking on matters related to his official duties and therefore did not have First Amendment protection. The 7th Circuit Court of Appeals reversed and has sent the case back for a trial. In reversing the lower court finding, the court of appeals found that while Kristofek’s statements of concern about political corruption concerned his job and certainly the information about which he spoke was acquired as a result of his work, Kristofek’s statements were not related to his official duties and therefore were made by him as a private citizen. Additionally, the court noted that the police chief failed to show that  Kristofek’s statements caused disruption in the department, which may have superseded Kristofek’s rights as a private citizen had evidence of such existed.

It is truly a fine line in this case in what capacity Kristofek spoke about corruption. What is clear is the special attention the 7th circuit gave to employee statements related to agency wrongdoing. It noted that public employees are often in the best position to witness wrongdoing in a public agency and First Amendment protections should extend to those situations.


Public employers must carefully analyze the situation before taking action against an employee over what they have to say about the employer’s operations. If statements are made by an employee directly relating to their job duties, it’s probably not protected speech.  Furthermore, gripes and grievances  are not generally of a public concern. But public employers should tread lightly when an employee raises questions of wrongdoing that might be of concern to the public.

Tuesday, August 16, 2016

City Settles Facebook Lawsuit

We reported a couple of weeks ago about a lawsuit filed against an Indiana municipality challenging the City's deletion of negative comments and blocking of individuals from posting on the City's and City Police Department Facebook pages. The lawsuit was filed by two residents of the municipality, with the assistance of the ACLU. According to news reports, the case has since settled, with the City agreeingagreed to pay the two residents a little more than $7K.  The settlement also included the City's agreement to modify its "terms of use" policy for posting on City social media sites. Finally, the residents will again be allowed to post to the City's Facebook sites.

You can read about the settlement in the Indianapolis Star:  link to news story

Post authored by Julie Tappendorf

Collection of Metra Parking Lot Penalties Subject to Fair Debt Collection Practices Act

Recently, the 7th Circuit Court of Appeals issued a ruling finding that penalties assessed by Metra for parking lot violations are subject to the debt collection procedures set out in the Fair Debt Collections Practice Act. Franklin v. Parking Revenue Recovery Services, Inc.   

The case involved a challenge by two individuals who had parked their cars in a Metra-owned parking lot and were fined for failure to pay the daily parking fee of $1.50. The non-payment penalty was $45.00. When the individuals failed to pay the violation notices, the matter was referred for collection to Parking Revenue Recovery Services, Inc. The individuals filed a class action against Parking Revenue, alleging that it violated the Fair Debt Collection Practices Act. Parking Revenue argued that the FDCPA does not apply because the unpaid parking obligations were not "debt" as defined by that Act. 

The 7th Circuit Court of Appeals disagreed with Parking Revenue, holding that the parking penalties are debts under the FDCPA. Specifically, the court determined that the violations were obligations "arising out of" consumer transactions - in this case, the transaction was the offer by Metra for customers to park in its lot for $1.50. The court rejected Parking Revenue's argument that the violations were more in the nature of fines, like a parking meter ticket. The court noted that the crucial issue is the legal source of the obligation - in this case, there was no municipal ordinance or regulation that obligated "park-and-dashers" to pay the $45; instead, the obligation came from the contract formed when the customer parks in the lot.

Municipalities and other government entities may want to make sure that parking fines and violations are expressly established in an ordinance or other formal regulation so that the "legal source of the obligation" to pay a fine or penalty is regulatory rather than contractual.

Post Authored by Julie Tappendorf

Monday, August 15, 2016

PAC Sticks to its Position that Emails on Private Devices Are Subject to FOIA

We have written extensively in the past about the Champaign v. Madigan case. That case involved a FOIA request for text messages between City Council members sent/received on their private cell phones. The City had denied the FOIA request on the basis that these text messages were not public records because they were not in the possession of, or under the control of, a public body. The requester had challenged the City's denial, and the PAC issued a binding opinion that all communications that relate to public business, regardless of device, are public records.  That opinion was appealed to the courts. Although the appellate court agreed with the PAC that the City Council members' text messages sent during a City Council meeting should be released, it disagreed with the PAC's very broad interpretation of FOIA that all communications, regardless of device, are public records.  

This case recently came up in the context of the PAC's 6th binding opinion of 2016. In PAC Op. 16-006, the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City had provided the requester with emails that were sent/received on the officers' official City email accounts or were found on the City server. The City did not provide any emails on the officers' personal email accounts on the basis that the emails were not public records because the City did not have any control over the officers' personal devices, and the emails were not used by, received by, in the possession of, or under the control of a public body.

The PAC ruled against the City, finding that "communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal e-mail accounts are 'public records' under the definition of that term in section 2(c) of FOIA." The PAC noted that any other interpretation would be "contrary to the General Assembly's intent of ensuring public access to full and complete information regarding the affairs of government." 

It is this exact "broad brush" interpretation of FOIA, however, that the appellate court rejected in Champaign v. Madigan when in stated:
If the General Assembly intends for communications pertaining to city business to and from an individual city council member’s personal electronic device to be subject to FOIA in every case, it should expressly so state. It is not this court’s function to legislate. Indeed, such issues are legislative matters best left to resolution by the General Assembly. 
The PAC opinion also seems to ignore the guidance contained in Champaign v. Madigan that an individual government official is not the "public body" that is subject to FOIA. Messages sent on private devices are only considered "public records" that might be subject to FOIA when the official sending/receiving the message is acting as a public body. The rationale offered by the court is that the public body is not in control or possession of messages of government officials when sent on their private devices except in certain limited circumstances.  The PAC did not appear to apply this analysis to the CPD FOIA request, and instead stuck to its pre-Champaign v. Madigan position that only the content of the message is relevant for purposes of FOIA, and the device used to send that message doesn't matter. 

As the appellate court acknowledged (see above quote), FOIA does not expressly provide that communications on private devices are subject to FOIA. Based on the Champaign v. Madigan ruling, we know that individual City Council members' messages on their private devices are not necessarily subject to FOIA (they are releasable only in certain, limited circumstances such as when they are sent during a public meeting or forwarded to/from the City's server). It would be helpful for government bodies to know whether the Champaign v. Madigan analysis applies to all public officials/employees (and not just aldermen) or whether the PAC is correct that public employees will be treated as "public bodies" subject to FOIA whenever they communicate on public business, regardless of device. That's certainly not what the statute says.

Post Authored by Julie Tappendorf




Thursday, August 11, 2016

Local Government Wage Transparency Act Signed by Governor

In June, we reported that Illinois H.B. 5684, the "The Local Government Wage Increase Transparency Act," had passed both the Illinois Senate and House, and had been sent to the Governor for signature. On July 28, 2016, Governor Rauner signed the bill into law, which is now known as P.A. 099-0646. 

The new law prohibits certain wage increases or lump sum payments to a local government employee during the employee’s last 12 months of employment unless the increase or payment is disclosed and approved at a public meeting in open session of the employer governing body. 

The law also amends the Open Meetings Act to require the public body to discuss compensation of individuals who fall within this category in open session – a significant change from the otherwise applicable OMA exemption that allows a public body to discuss compensation of specific employees in closed session.  According to news reports about the new law, the change is an attempt by the General Assembly to prevent a “pension spike” from occurring without the public’s knowledge. 

As previously reported, this new law only applies to employees who began participating in IMRF prior to January 1, 2011, and who are not part of a collective bargaining unit. The trigger for the new disclosure requirement is any increase or payment within the final 12 months of employment that makes the reportable monthly earnings 6% or more than the previous month’s reportable earnings.

In order to comply with the Act, the public body must, at a minimum, disclose the following at a public meeting:
  1. the identity of the employee;
  2. the purpose and amount of the increase or payment;
  3. the proposed retirement date;
  4. the effect of the payment on the expected retirement annuity of the employee; and
  5. the effect of the payment on the liability of the employer to the IMRF fund.
Post authored by Tiffany-Nelson Jaworski, Ancel Glink

Wednesday, August 10, 2016

New Law Creates Potential Liability for Public Employers Who Hire IMRF Retirees

Municipalities that hire individuals who are receiving an IMRF pension may be required to pay a penalty to IMRF if the employer knowingly fails to notify IMRF to suspend that individual’s annuity during the term of employment under a new law just passed by the Illinois General Assembly.

The Illinois Pension Code requires the suspension of a retiree's IMRF pension if the retiree returns to work for an IMRF employer and works more than the government employer’s hourly standard for participation in IMRF (599 hours or 999 hours).  Public Act 099-0745 (effective immediately) will now create a duty for the government employer to notify IMRF that it has hired or re-hired an IMRF retiree. If the government employer knowingly fails to notify IMRF to suspend the annuity, and the employee works more than the employer’s IMRF hourly standard, the employer and the employee will each be liable to reimburse IMRF for up to one-half of the amount of any IMRF annuity payments made to the employee after the date the annuity should have been suspended.   The reimbursement provision is not applicable if the individual returned to work for less than twelve months.

IMRF employers should ask candidates if they are receiving an IMRF annuity and contact IMRF to discuss the potential ramifications of hiring an IMRF retiree prior to making an offer of employment.  If the government employer decides to hire the retiree to work a number of hours in excess of the IMRF hourly standard, the employer must provide the required notice to IMRF. 

Post authored by Jim Rock, Ancel Glink

Tuesday, August 9, 2016

OMA Lawsuit Deadlines Changed

The Governor recently signed legislation (PA 99-714) to further amend the Open Meetings Act regarding the time period that an individual has to file a lawsuit to enforce an alleged OMA violation. Currently, a lawsuit must be filed within 60 days of the date of the meeting being challenged or within 60 days of discovery of the violation. The new law would allow an individual to file a lawsuit within 60 days of issuance of an Attorney General opinion where that person had filed a request for review with the Attorney General (PAC office). The new provision is contained in section 3 of OMA (new language is underlined):
(5 ILCS 120/3)  (from Ch. 102, par. 43)
    Sec. 3. (a) Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State's Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 60 days of the meeting alleged to be in violation of this Act or, if facts concerning the meeting are not discovered within the 60-day period, within 60 days of the discovery of a violation by the State's Attorney or, if the person timely files a request for review under Section 3.5, within 60 days of the decision by the Attorney General to resolve a request for review by a means other than the issuance of a binding opinion under subsection (e) of Section 3.5.
*  *  * 
Post Authored by Julie Tappendorf

Monday, August 8, 2016

FAA Drone Regulations Affect Public Entities


The Federal Aviation Administration (FAA) recently enacted a new rule, 14 CFR Part 107, governing non-recreational operation of small drone aircraft weighing less than 55 pounds (www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf). Local governments may now conduct public drone operations under the rule without first obtaining FAA certification. The new regulations establish standards for who may fly small drone aircraft, how drones may be operated, and how drones are to be registered and inspected to ensure safety.
In addition to understanding how to comply with the FAA regulations, local governments interested in drone operations should be aware of constitutional limitations on drone use, privacy laws, zoning and land use concerns, and the intersection between federal, state and local laws. Local government organizations should continue to stay educated on federal and state regulation of drone use and the proper procedures for conducting public drone operations.

Friday, August 5, 2016

Upcoming Seminar on Transgender Issues

Title: Demystifying Transgender Issues in Illinois

When:  August 23, 2016; 8:30 a.m - 10:30 a.m.
Room number: ACEC 2102

Transgender issues remain the emerging topic of 2016 for both individual rights as well as rights in the workplace. Be prepared for this rare intersection of rapidly changing law and social awareness. Ancel Glink attorneys will demystify the topic and give you practical advice on how to stay compliant with new laws and achieve a respectful environment for your workers as well as the people with which you do business. 

Join us for our two hour seminar where we will share with you the following:
  • the state of the law on transgender issues;
  • policy considerations to ensure compliance with the law;
  • training needs for staff and supervisors;
  • facility and other accommodation requirements; and
  • privacy issues.
How:  Seating is limited. Reserve your spot at the breakfast briefing now by calling Kathy Cook at 312-604-9174 or by making a reservation by email at kcook@ancelglink.com.

Tuesday, August 2, 2016

City Sued for Blocking Residents From Facebook Page

Last month, the ACLU filed a lawsuit against the City of Beech Grove, Indiana, on behalf of two individuals who claim that comments they posted to the City's Facebook page were deleted in violation of their First Amendment rights. According to the complaint, after the two residents of Beech Grove posted comments on the City and police department Facebook pages criticizing or questioning activities of the police department, their comments were removed and they were banned from posting future comments. Shortly after the accounts were blocked, the City posted the following on its Facebook page:
This Facebook site was created to pass on information to you and to try to keep you informed as to what is occurring in our City. We will not entertain negative comments towards anyone,  nor will we host arguments between individuals. We do not care who you are, we are trying to inform you. If you decide to make unpleasant comments we will delete you.
The two residents claim that the City's actions in removing their comments and blocking them from posting on both the city and police department Facebook pages violate their free speech rights under the First Amendment. The complaint also argues that the City's practice of removing public comments because of their viewpoint (i.e., "negative comments") also violates the First Amendment. The lawsuit asks the court to enjoin the City from blocking comments based on their viewpoint.

This will be an interesting case to follow, assuming it moves forward and doesn't settle like the Honolulu case involving the police department's removal of critical posts. News reports about the case suggest that the City will seek settlement with the two residents, although it won't include any agreement to "unblock" the two residents since the City has since taken its Facebook page down.

Post Authored by Julie Tappendorf

Monday, August 1, 2016

Illinois Amends Law Regarding Employee Social Media and Other Online Activities

The Illinois General Assembly just approved P.A. 99-610, amending the "Freedom from Location Surveillance Act" to expand employee privacy rights in online activities. The following is a summary of the major provisions of this new law, which takes effect January 1, 2017. 

The new law makes it unlawful for an employer or prospective employer to do the following:

1. Request, require, or coerce an employee or applicant to:
  • provide a username and password to any personal online account;
  • access a personal online account in the employer's presence; 
  • invite the employer to join a group affiliated with a personal online account; or
  • join an online account established by the employer or add the employer to the employee's or applicant's list of contacts (e.g., "friends") to access the personal online account.
2.  Discharge, discipline, discriminate against, retaliate against, or penalize an employee for any of the above activities or for filing a complaint alleging a violation.

3. Fail or refuse to hire an applicant for any of the above activities.


The law contains certain exemptions to these prohibitions, including the ability of employers to obtain information about an employee or applicant available in the public domain.  

The law also allows employers to request that an employee share specific content that has been reported to the employer in connection with an investigation and to ensure compliance with laws and policies.

Finally, the law did not eliminate the authority of employers to adopt and enforce workplace policies regarding use of the employer's electronic equipment and to monitor employee use of employer's equipment.

Employers may need to review and modify any internal personnel policies that conflict with these new requirements before the law takes effect on January 1st of next year.

Post Authored by Julie Tappendorf

Thursday, July 28, 2016

Important New Law Requires Adoption of Local Expense Reimbursement Policy

We previously reported on a bill introduced this session that would establish certain obligations on local governments regarding reimbursement of local officials' expenses. That bill previously passed the Illinois Senate and House, and has now been signed by the Governor as P.A. 99-604

The Local Government Travel Expense Control Act applies to school districts, community college districts, and all units of local government except home rule units. Illinois defines "units of local government" to include counties, municipalities, townships, special districts (i.e., park districts, library districts, fire protection districts, etc), and various other units of local government. 

The new law places two new obligations on units of local government: (1) to adopt by ordinance or resolution a local policy on expense reimbursements and (2) to approve by roll call vote of the corporate authorities any expenses that exceed the maximum allowable reimbursement established by the local policy. The new law also prohibits any unit of local government from reimbursing entertainment expenses. The law is summarized below.

1.   Adoption of Local Expense Reimbursement Policy

The first requirement (section 10 of the new law) takes effect on January 1, 2017, so covered local governments should make sure that they have adopted a local expense reimbursement policy by the end of the year. That policy must include, at a minimum, the following:

1. The types of official business for which travel, meal, and lodging expenses are allowed.
2.  The maximum allowable reimbursement for travel, meal, and lodging expenses.
3.  A standardized form for submission of travel, meal and lodging expenses that includes spaces for the following information:

  • an estimate of the cost of travel, meals or lodging if the expense has not yet been incurred or receipts for those expenses if they have already been incurred;
  • the name and job title or position of the individual requesting reimbursement;
  • the dates and nature of the official business in which the expenses were or will be expended.
2.  Approval of Expenses

In addition to adopting a formal policy, section 15 of the new law requires covered units of local government to formally approve any expense that exceeds the maximum allowed under the local policy.  That approval must be by the corporate authorities and by roll call vote at an open meeting.  

3.  Prohibition on Entertainment Expenses

Section 25 of the new law prohibits a covered unit of local government from reimbursing any government official or employee for "any entertainment expense." These are defined to include the following:
  • shows
  • amusements
  • theaters
  • circuses
  • sporting events
  • any other place of public or private entertainment or amusement unless ancillary to the purpose of the program or event
So, covered units of local government will have to put together and approve a local reimbursement policy, and ensure that any expenses reimbursed by the government comply with that policy as well as the statutory ban on entertainment expenses. The law contains different (and seemingly inconsistent) time triggers for compliance with the mandates in this statute (180 days for section 10 and 60 days for section 15). A conservative approach would be to have a policy in place before January 1st of next year.

Post Authored by Julie Tappendorf