Wednesday, July 23, 2014

Disclosure of Audit Report and Management Letters

Governor Quinn recently signed into law P.A. 98-0738 amending the Illinois Municipal Code to establish certain disclosure requirements for municipal audits.  The new law requires the auditor conducting the municipal audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. Municipality with websites must post this information on their websites.  The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting.  The new law also applies to counties.  The law becomes effective January 1, 2015.

Post Authored by Julie Tappendorf

Tuesday, July 22, 2014

Cities Must Refund AT&T Telecommunication Taxes

In June of 2011, a federal judge approved a $1 billion class action settlement against AT&T. That lawsuit claimed that AT&T inappropriately collected telecommunications taxes from its customers between 2005 and 2010 for internet services, which is prohibited under Internet Tax Freedom Act. Under the settlement, AT&T agreed to refund these overcharges to its customers.  The problem? AT&T had already turned over the tax revenue to state and local governments, including Illinois municipalities.  That means that the state (and ultimately, local governments) are on the hook for returning these taxes to AT&T, who will then refund them to customers.  

So, why are we talking about this case more than 3 years later?  Because recently, Illinois municipalities started receiving notices from the Illinois Department of Revenue (IDOR) that they are responsible for the overcharged taxes.  For example, the City of Champaign received a notice that it received $340,000 in overcharged taxes over the five year period in question. The Village of Roselle received about $70,000.  In total, Illinois municipalities are on the hook for about $16.7 million of the $1 billion settlement.  

Under state law, the IDOR has the authority to offset future tax receipts due to the municipalities until the overcharged taxes are repaid. For many municipalities, the IDOR has put in place a "payment plan" to collect the overcharged taxes over a period of time.  For example, one municipality was notified that the IDOR would collect the overcharged revenue of $89,000 from the municipality by reducing the monthly tax distributions over a six month period, beginning in August, 2014.  Once the overcharges are collected by the IDOR, it will then remit the collected revenues to AT&T, who will refund customers who paid the taxes.

Fortunately, AT&T stopped overcharging customers in 2010, so current revenues coming in are not subject to the lawsuit.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, July 21, 2014

Temporary Use Articles Published in Planning & Environmental Law

The American Planning Association (APA) publishes a monthly magazine called Planning & Environmental Law where it reports on recent land use and planning cases and other legal matters. In the July 2014 edition of PEL, the APA published two articles written by Ancel Glink attorneys, which may be of interest to land use and planning officials and employees. 

Julie Tappendorf authored the article "Common Zoning Definitions Found Unconstitutional in TLC v. Elgin."  In her article, Julie summarizes the TLC v. Elgin case, where a federal district court ruled that a municipality could not require a faith-based organization to obtain a temporary use permit to operate its mobile pregnancy counseling services.  The court found that the city's zoning definitions of "land use" and "structure" were unconstitutionally vague and overbroad because these regulations could prevent people from exercising their First Amended protected rights.  The case was settled recently, and TLC was allowed to offer its mobile pregnancy counseling services, but the ruling that these commonly used zoning definitions were unconstitutional should cause some concern to municipal land use professionals.

David Silverman authored the article "The Temporary Use and Economic Development."  In his article, David explains temporary use regulations, and discusses ways temporary uses can be used effectively to promote economic development and provide unique cultural, artistic, and entrepreneurial experiences within communities. David provides a number of examples of these temporary uses such as farmers markets, mobile food operations, art and culture "temporiums," and urban farming initiatives.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, July 18, 2014

Government Bodies Can Seek Equitable Relief when Counties Incorrectly Reduce Taxes

On July 9, 2014, the Appellate Court for the Third District decided the case of The Board of Trustees of Illinois Valley Community College District NO. 513 v. Putnam County. This case involved a reduction in real estate taxes granted by the treasurer and collector of Putnam County to a company that constructed an ethanol facility within an enterprise zone within the Village of Hennepin.  The Community College District had approved a resolution abating property taxes for the property; however, the resolution had certain restrictions and limitations based upon the timing of the construction of improvements on that property.  County officials concluded that the resolution of the Community College required a tax abatement for the facility.  The Community College District disagreed and filed a complaint seeking a writ of mandamus to require the county to stop abating the taxes and to re-issue tax bills for three previously abated tax years.  The company filed a motion to dismiss arguing that, under the property tax code, only it had the right to protest the taxation of its property.  The trial court ruled against company, and the case was appealed.  

The appellate court reviewed the tax objection provisions of the property tax code and concluded that those provisions are only intended to be used by and applied to a property tax payer who feels that a tax has not been appropriately calculated.  However, the court determined that government bodies that believe that their taxes have not been properly calculated by county officials have a completely independent right to file a lawsuit.  

Although the arguments suggested by the utility company were quite exotic and may have been proposed as a delaying tactic, this appellate court decision should prevent similar arguments being made in the future.  That decision strengthens the rights of governmental bodies to question acts taken by the county in the tax collection process even if the effect of the lawsuit would be to require a taxpayer to come up with additional funds.  The Community College correctly named not only the county, the treasurer and collector in the lawsuit, but also the energy company, which would have to pay more taxes.

Post Authored by Stewart Diamond, Ancel Glink

Thursday, July 17, 2014

Pension Board Has No Contract Right to a Specific Level of Municipal Funding

An Illinois appellate court recently held that a municipality was not liable for failing to fully fund its police pension fund, and that the Pension Board was not statutorily and contractually entitled to a specific level of funding by the Village.  Board of Trustees of the Riverdale Police Pension Fund v. Village of Riverdale.

The Board of Trustees of the Riverdale Police Pension Fund filed a lawsuit against the Village claiming that the Village violated its statutory obligations under the Illinois Pension Code to properly and fully fund the police pension by not levying the appropriate taxes for pension contributions for about 10 years.  The Pension Fund also asked the court to order the Village to turn over all pension contributions in its possession, which the Village admitted to collecting and inadvertently not remitting.  The circuit court granted summary judgment to the Village, finding that the Pension Code did not contain any right to enforce certain funding levels and that the “legislature could not have intended to remove all discretion from the municipality in determining the amount of tax levies and contributions to the pension funds in any particular year.” 

The Pension Fund appealed the decision to the appellate court.  That court first looked at Sections 3-125 and 3-127 of the Illinois Pension Code, and determined that although these provisions require a municipality to levy taxes sufficient to cover the cost of the pension fund of the given year and any unfunded accrued liabilities, the law does not require that taxes be levied in strict compliance with the recommended funding levels.  As a result, the court found that the Pension Board was not able to demonstrate that the Pension Code created a contractual right to a specific level of funding. The court did, however, determine that the Village was required to forward all monies actually received as a result of the pension tax levies to the Pension Board.

Post Authored by Tiffany Nelson-Jaworski, Ancel Glink

Wednesday, July 16, 2014

NYC Soda Ban Struck Down Again

Chicago bans plastic bags and microbeads in personal care products.  San Francisco bans the sale of plastic water bottles on public property.  New York City banned large sodas (or pop, if you are around here) by enacting the "Sugary Drinks Portion Cap Rule," which would become effective in 2013.  That rule prohibits food service establishments from selling any sugary drink in a cup or container larger than 16 ounces.  The new rule was immediately challenged by labor groups and other organizations who claimed that the rule was "arbitrary and capricious" and exceeded the Board of Health's regulatory authority.  

The case made its way to the state's high court, which issued a ruling last week invalidating the rule.  In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Hygiene.  The court of appeals determined that the Board of Health exceeded its regulatory authority by enacting the soda ban.  Specifically, the court found that the ban was in the nature of legislative policy-making rather than the carrying out of preexisting legislative policy.  As a result, the soda ban rule was found invalid, and the Department of Health was enjoined from enforcing it.

The opinion contains a lengthy dissenting opinion that would have upheld the soda ban rule based on the Department's inherent authority to regulate the public health in the City.  The dissent acknowledged that in enacting the ban, the Board identified a "complicated threat to the health of City residents with any interrelated causes; i.e., obesity" that required the Department to enact regulations that would "combat this threat."  

The rationale for the court invalidating the soda ban had nothing to do with the legitimacy or appropriateness of the ban itself, but with the agency's authority to enact it.  It is entirely possible that the outcome of this case would have been different had the New York City Council enacted an ordinance adopting the soda ban (i.e., legislative action) rather than one of its agencies establishing the ban through an administrative policy.   

Post Authored by Julie Tappendorf, Ancel Glink 

Tuesday, July 15, 2014

Attorney General's Challenge to Former Chicago Police Supervisor's Pension Benefits Dismissed

Former Chicago police supervisor Jon Burge was convicted of committing perjury in a civil lawsuit after he denied having any knowledge of suspects being tortured by police under his command. Following his conviction, the police pension board held a hearing and voted 4-4 to terminate his pension benefits.  Because there was no majority vote in favor of terminating his benefits, Burge continued to receive his pension benefits.

The Attorney General, on behalf of the State of Illinois, filed a complaint in circuit court alleging that the pension board was violating the Pension Code by continuing to pay pension benefits to Burge following his felony convictions.  Burge, the pension board, and the pension board trustees were all named as defendants in the case.  The Attorney General asked the court to order the pension board to stop all pension payments and require Burge to repay benefits.  The defendants argued that the circuit court did not have jurisdiction to consider the Attorney General's complaint. The circuit court agreed, and dismissed the Attorney General's complaint on the basis that the pension board has exclusive jurisdiction to decide whether pension benefits should be terminated. The appellate court reversed, finding that both the pension board and circuit court have jurisdiction to decide pension benefits. 

On appeal, the supreme court agreed with the circuit court that the Attorney General's complaint should be dismissed for lack of jurisdiction.  Although section 1-115 of the pension code does provide the Attorney General with some authority to bring a civil action, that authority does not the include the power to decide whether pension benefits should be terminated.  The power to grant or terminate pension benefits is exclusively the pension board's, not the Attorney General's and not the circuit court's.  The pension board's decision was subject to appeal only through the administrative review process, not through a separate new proceeding in the circuit court.  As a result, the Supreme Court upheld the circuit court's dismissal of the Attorney General's complaint.

The dissent argues that the Attorney General did have authority to bring a separate action against the pension board to challenge the pension board trustees' fiduciary duties.  In the dissent's view, allowing a convicted felon to continue to draw pension benefits violates the trustees' duties to the fund and its beneficiaries.

You can read the case here:  Madigan v. Burge, 2014 IL 115635 (July 3, 2014).

Post Authored by Julie Tappendorf, Ancel Glink

Monday, July 14, 2014

Statute Barring Felons from Holding Public Office is Constitutional

General Parker filed nominating petitions to run for office on the local school board. The county states attorney filed a quo warranto proceeding to block his candidacy based on his previous conviction of felony theft.  Illinois statute prohibits a "person convicted of an infamous crime...from holding any office of honor, trust, or profit unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law."  10 ILCS 5/29-15.  The states attorney argued that felony theft was an "infamous crime" under that statute and, therefore, Parker was barred from running for elected office on the school board.

Parker argued that the statute barring those convicted of infamous crimes from holding office does not apply to school board members, that the states attorney was selectively enforcing the statute, and that the hearings were unjust.  The circuit court rejected his arguments and ordered Parker's name removed from the ballot.  

While Parker's appeal of the circuit court's decision was pending, he filed another lawsuit in federal court against the state's attorney, the county, and a variety of other defendants claiming that (1) the quo warranto proceeding violated his rights to due process and (2) the state statute violates his constitutional right to run for public office.  The district court dismissed all claims, and the case was appealed to the Seventh Circuit.

On appeal, the Seventh Circuit determined that the state's attorney had absolute prosecutorial immunity in bringing the quo warranto proceeding to enforce the state law.  With respect to Parker's facial challenge to the constitutionality of the state law, the Court found the Illinois statute to be constitutional.  First, the right to run for or hold public office is not a fundamental right, and felons are not a suspect class.  Consequently, a ban on felons running for elective office is valid if it is rationally related to a legitimate state interest.  The state's interest in barring felons from elective office is to ensure "public confidence in the honesty and integrity of those serving in state and local offices."  The U.S. Supreme Court has previously held that states can deprive convicted felons of the right to vote, a right that is fundamental.  The right to run for office is not a fundamental right, so a similar bar would likely pass constitutional muster.  

The Court also rejected Parker's argument that the law has a disproportionate impact on African American men.  The Court was also not persuaded that the ban violates the First Amendment.  

You can read the case at Parker v. Lyons (7th Cir. July 7, 2014)

Friday, July 11, 2014

Health Insurance Subsidies Protected by Pension Clause of IL Constitution

We've written quite a bit lately about the state's pension crisis and the various legislative actions that have been taken to attempt to address the shortfall in many state and local government pension funds.  One of these legislative "fixes" was P.A 97-695 that amended the State Employees Group Insurance Act of 1971 to eliminate standards for the state's contributions to health insurance premiums for 3 state retirement systems.  In place of these statutory standards, the Director of the Illinois Department of Central Management Services (CMS) would be authorized to determine the annual health insurance contribution required by the state and retirees.  

To no-one's surprise, this legislation was challenged in court.  Pensioners claimed that the legislative change in how health insurance contributions would be determined violates the pension protection clause of the Illinois constitution, among other claims.  The Illinois Supreme Court recently agreed with that argument, finding that the constitutional pension protections apply to health benefit contributions.  Kanerva v. Weems, 2014 IL 115811 (July 3, 2014)

At issue was an interpretation of the state constitutional provision protecting pension rights.  That provision (Article XIII, section 5 of the Illinois constitution) provides as follows:
Membership in any pension or retirement system of the State...shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.
The pensioners argued that this language protects not only the pension benefits, but all other retirement benefits provided to state retirees.  The supreme court agreed, finding that health insurance benefits are part of the "package" of retirement benefits provided to members of state public pension systems.  The court held that this constitutional provision was intended to eliminate the uncertainty for retirees, and to protect their rights from future changes that would impair those rights.  In short, the court concluded that the pension rights protected by the Illinois constitution include the provision of health insurance premium subsidies.

The dissent, on the other hand, concluded that subsidized health insurance premiums are not pension benefits, so would not be covered by the constitutional provision that protects pension benefits from impairment.  In the dissent's view, the majority was reading language into this provision that does not exist.  

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, July 10, 2014

California Court to Decide Whether Public Officials' Private Emails Are Releasable

We reported previously on a California court of appeals case that held that a government officials' emails on private accounts were not subject to public inspection or release.  It appears that this case is now going to the California supreme court, which will decide the requester's appeal of the court of appeals' decision. 

In the California case, a requester filed a public records request with the City of San Jose asking for "voicemails, emails or text messages sent or received on private electronic devices" used by the Mayor and City Council members.  The City denied the request, and the requester filed a lawsuit. The trial court ordered the Mayor and City Council members to turn over the electronic communications.  

On appeal to the California Court of Appeals, the City argued that the electronic communications were not "public records" under the definition of California's public record law because the messages and devices are not "prepared, owned, used, or retained" by the City.  The appellate court agreed, finding that because the City cannot access or control messages on private devices, the messages are not public records under the law.  The court acknowledged that its ruling could result in public officials using private devices to conduct public business, but left the issue to the legislature to address.  The court also acknowledged the privacy concerns, as well as practicality, of requiring the disclosure of communications sent and received on privately owned devices.

We have discussed the issue of government communications on private devices in Illinois in a number of previous blog postings in this post, this post, and this post.  The PAC had issued an opinion that all electronic communications are releasable to the public, regardless of the device.  The Illinois appellate court limited that opinion so that only those communications sent on private devices that meet certain criteria will be subject to public release:  (1) the communications were sent to a majority of a public body; (2) the communications were sent during a meeting of the public body; (3) the communications were forwarded to/from an official government account.  

The rulings by the Illinois appellate court and California court of appeals were based on two different definitions in the state records law.  In Illinois, the Illinois appellate court looked at the definition of "public body" in determining whether or when FOIA might apply to individual public officials.  Only when individual public body members are acting as a public body in sending a communication, would those communications be subject to release.  In the California case, the City is relying on the definition of "public record" to argue that communications sent and received on private devices do not meet the state's definition of public record. The City argues that it would be nearly impossible to track the electronic communications on the private devices of 5,000 city employees.

It will be interesting to see how California's high court addresses this issue.  

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, July 9, 2014

U.S. Supreme Court to Hear Sign Case

We don't see a lot of land use cases at the Supreme Court level.  For those of us who practice in this area, we get a little excited when the Supremes decide to tackle a land use case.  I can still remember the anticipation of last year's ruling in Koontz.  So, you can imagine the interest in the Supreme Court's recent decision to grant cert. (meaning they will hear the appeal) in Reed v. Town of Gilbert, a case involving a challenge to a town's sign ordinance.  

The Town of Gilbert's ordinance restricts the time period that temporary signs can be maintained.  It also distinguishes between different types of temporary signs, categorizing them as (1) political signs; (2) event signs; and (3) other noncommercial signs.  A local church, Good News, received a notice of violation for placing about 17 signs in the area surrounding its place of worship in Gilbert announcing the time and location of its services. The notice stated that the signs violated the town’s sign ordinance because “the signs were displayed outside the statutorily-limited time period.” Good News subsequently filed suit in federal court in Arizona alleging that Gilbert’s Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The case made its way to the Ninth Circuit Court of Appeals, which upheld the Town of Gilbert's sign ordinance.  

First, the Court of Appeals determined that the sign ordinance “regulates physical characteristics, such as size, number and construction of the signs,” their locations, and the timing of displays, none of which "implicate the content of speech.”  Second, the Court held that the restrictions on time, place and manner imposed by Gilbert on the display of temporary signs advance the aesthetic and safety interests by limiting the size, duration and proliferation of signs.  Third, the Court held that the ordinance left Good News with ample alternative methods of speech.  Finally, the Court rejected Good News' argument that the Town's distinct regulations for different types of speech (for example, political candidate signs can be larger than event signs) was unconstitutional.

Some commentators argue that the Supreme Court agreed to hear the case because the Town's sign ordinance treats political speech more favorably than religious speech - political signs can be up to 32 square feet in size and other signs (including signs of religious organizations such as Good News) could be only 20 square feet or 6 square feet in size, depending on whether the message related to a qualifying event or not, respectively.  Others say that the Ninth Circuit Court of Appeals got it wrong in holding that the ordinance was content-neutral, given the distinctions between political signs and others.  This will certainly be a case to watch for municipalities, as the decision could certainly impact how municipalities regulate temporary signs (or any sign, for that matter). 

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, July 8, 2014

2 PAC Binding Opinions Find Public Bodies in Violation of FOIA

We have two new PAC binding opinions, both dealing with FOIA, and both finding the public body in violation of that statute.  The opinions are summarized below:

The PAC determined that the Illinois Department of Lottery violated FOIA by redacting financial information from contracts with the company that operates the state lottery.  Information that was redacted related to annual and monthly fees, pricing, and compensation paid to the contractor to operate the lottery.  The PAC rejected the state’s argument that this information was considered “confidential data” under the Illinois Lottery Act, and also found that it did not qualify as proprietary or financial information under Section 7(1)(g) of FOIA.  The PAC also rejected the contractor’s argument that confidentiality provisions in the state’s contract with the contractor prohibited release of the confidential data.  


The PAC determined that Chicago State University violated FOIA by failing to provide public records in its possession to a requester.  Specifically, the requester asked the university to release information relating to the specific amount of money that was collected at a Homecoming dance and how that money was housed and appropriated.  The university had denied the request, stating that the records are not records of a “public body” under FOIA because the records were records of the Student Government Association.  The university further argued that the records are not related to the “transaction of public business” to constitute public records under FOIA.  The PAC rejected the university’s arguments.  First, the PAC determined that because the SGA had distributed the records to the university, they were in the university’s possession and, therefore, subject to release.  Second, the PAC found that the university controls the funding of student associations, including the SGA, because of language in a student association publication that states that funds remaining in a student association account  that are not expended by the end of the fiscal year revert to the university.  

Post Authored by Julie Tappendorf, Ancel Glink