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Friday, May 18, 2018

New Episode of Ancel Glink's Quorum Forum Podcast Now Available!

Ancel Glink’s Quorum Forum podcast has a new “Special Meeting” episode available titled “Consolidation!” In this episode of our podcast, we present an update on consolidation legislation affecting municipalities, and hear Keri-Lyn Krafthefer's takes on township consolidation.

Check it out here:

Quorum Forum website: http://quoromforum.ancelglink.com/

Questions? Show ideas? Email us at podcast@ancelglink.com!

Tuesday, May 15, 2018

Seventh Circuit Upholds City's Adult Use Ordinance

The Seventh Circuit recently considered a challenge to the adult use provisions of the City of Indianapolis’s zoning ordinance in HH-Indianapolis, LLC, v. Consolidated City of Indianapolis and County of Marion, Indiana, et al.

The plaintiff sought to operate a “Hustler Hollywood” store in the City’s C-3 District.  Under the City’s zoning ordinance, the plaintiff’s store was classified as either an adult bookstore or an adult service establishment. The City’s zoning ordinance prohibited adult uses in the C-3 District.  However, adult bookstores and adult service establishments were permitted by right in three other City commercial zoning districts, including the C-4 district located directly across the street from the proposed store.

After the City denied the plaintiff’s building and sign permit applications because the use was not permitted in the C-3 District, the plaintiff sued, claiming the City’s zoning ordinance violated its First Amendment rights. 

The Seventh Circuit ruled against the plaintiff, finding that the City's zoning regulations did not prohibit adult uses entirely, but merely regulated their location. The Court rejected plaintiff's argument that the City’s ordinance “silenced” their ability to exercise their First Amendment rights at the location of their choosing. The Court noted that the plaintiff had not been silenced, but merely told that it could not operate in one commercial zoning district and must move to another. The Court noted that the plaintiff could operate in three other commercial districts by right. Further, the Court found that the City had a substantial interest in reducing the secondary effects of adult uses by limiting their location. Ultimately, the Court held that “because the ordinance is content-neutral, serves a substantial interest, and allows HH to operate in numerous other commercial districts, HH’s likelihood of success on its First Amendment claim is not better than neglible.”

As the Seventh Circuit confirmed, municipalities have the power to enforce reasonable time, place, and manner restrictions on adult uses. 

Post Authored by Kurt Asprooth, Ancel Glink

Monday, May 14, 2018

School Board Did Not Violate OMA in Using "Self Evaluation" Exception

A recent PAC opinion addressed Section 2(c)(16) of the Open Meetings Act in an advisory opinion. 2018 PAC 51767. While a non-binding opinion, it offers guidance on interpreting the “self evaluation” exception of the OMA.

A school board member filed a complaint with the PAC alleging that the school board violated the Open Meetings Act by holding an improper closed session. The Board entered closed session at a special meeting to discuss self-evaluation of Board procedures under 2(c)(16) of the Act. While in the closed session, the Board also discussed ways in which it could prevent the complainant from posting on social media.    

Section 2(c)(16) allows a public body to discuss in closed session “self evaluation, practices and procedures or professional ethics, when meeting with a representative of a statewide association of which the public body is a member.”  The school board argued that the closed session was proper as two representatives from a statewide association, Illinois Association School Boards, were present to conduct the self-evaluation.  The board contended that the complainant’s allegations focused on a part of the closed session where the board discussed concerns about actions taken by individual board members.  It argued that the discussion was directly related to the self-evaluation.  The complainant argued that the discussion did not fall with the scope of the 2(c)(16) exception, claiming that the discussion centered on policy, not self-evaluation. 

Upon review of the verbatim recording of the meeting, the PAC found that the discussion was made in the context of discussing improvements to certain practices and procedures.  The PAC found that the discussion during the closed session was within the scope of 2(c)(16) and no violation of the Act occurred. 

Post Authored by Erin Pell, Ancel Glink

Monday, May 7, 2018

Ancel Glink's Podcast "Quorum Forum" is Live!

We are excited to report that we have just released our new podcast, Ancel Glink's very own Quorum Forum!

In our first "Regular Meeting" episode, Caitlyn Sharrow highlights pending local government legislation, and Julie Tappendorf discusses the use of personal cell phones to communicate about government business. 

You can listen to the podcast on the following podcast platforms:

iTunes: https://itunes.apple.com/us/podcast/quorum-forum/id1380233731

Don't forget to follow Ancel Glink's Quorum Forum channel on your favorite podcast platform so you know when new "meeting" episodes are released. We will also update Municipal Minute when a new episode goes live.

Questions or show ideas? Send them to podcast@ancelglink.com.”

Friday, May 4, 2018

Instagram Posts Support $10,000 Sanctions Against Lawyer

In a recent court ruling, a New Jersey judge imposed a $10,000 sanction on a lawyer after she claimed that she was out of town on a family emergency, but her Instagram account proved otherwise. Siu Ching Ha v. Baumgart Cafe of Livingston.

Ms. Franco represented a group of plaintiffs in a Fair Labor Standards Act case against four New Jersey cafes. After she missed a deadline to file a motion for class certification on behalf of the plaintiffs, she filed a motion for an extension of time. In her motion, she stated that she was forced to leave the country due to a family emergency in Mexico City, and attached her itinerary. 

The defendants' attorneys filed an objection to the motion for an extension, and pointed out that Ms. Franco's Instagram account showed that she was  not in Mexico City on the date the motion was due to be filed. Instead, her account showed she was in New York City, and then Miami. The attorneys also pointed out that the itinerary attached to Ms. Franco's motion referred to Thursday, November 21, 2016, which was not a real date. In response, Ms. Franco argued that emotional distress over her mother's health caused her to provide an "erroneous itinerary" and she requested that the court allow her to withdraw from the case. 

At a court hearing, Ms. Franco admitted that she was not honest with the court. However, she argued that sanctions should not be imposed because her conduct did not amount to "unreasonable and vexatious" conduct. The court disagreed, finding that sanctions were warranted in this case because Ms. Franco deliberately misled the court and the other attorneys in this case. The court expressly acknowledged that her social media account showed she was not in Mexico City as she claimed in her motion for an extension. In short, the court found Ms. Franco's actions in bad faith. Although defendants' counsel had requested $44,283 in attorneys' fees and costs against Ms. Franco, the court found the billings to be excessive, and reduced the sanctions award to the defendants' counsel at $10,000.

This was a pretty expensive lesson for the attorney, and a reminder to everyone that there is no privacy in your social media activities.

Post Authored by Julie Tappendorf

Thursday, May 3, 2018

Update on Municipal Consolidation Bill

A couple of weeks ago we reported on a bill that would amend the municipal consolidation statute in a number of ways. One of the most significant changes in that earlier version of the bill would be to require referendum approval by voters in just one of the consolidating municipalities, rather than voters from all of the consolidating municipalities. Recently, HB 5777 was amended to eliminate the language requiring only one municipality's voters to approve the consolidation, restoring the previous language. The amended bill also requires filing of the referendum petition only in the county where the largest municipality is located, and includes a 22 month "waiting period" on filing another referendum petition if the referendum fails, with certain exceptions.

The bill, as amended, passed the Illinois house and now moves to the Illinois senate.

Post Authored by Julie Tappendorf

Wednesday, May 2, 2018

Records Pertaining to Housing Task Force Subject to FOIA

An appellate court recently issued an opinion finding a "housing task force" of a municipality to be a public body subject to FOIA. City of Danville v. Madigan, 2018 IL App (4th) 170182.

A FOIA request was filed with the City in 2015 requesting copies of documents relating to the City's housing task force, including meeting notices, minutes, and all electronic communications between members of the task force and City employees or officials. The City denied the request on the basis that the records were not "public records" because the task force was not a public body subject to FOIA. The requester appealed to the Attorney General's PAC office, which found the City in violation of FOIA. Specifically, the PAC stated that the records were in the possession of the City, and related to business of the City, so the City was obligated to respond to the FOIA request. We reported on the PAC's binding opinion on the blog here. A circuit court agreed with the PAC, and the City appealed to the appellate court.

The appellate court first considered, and rejected, the City's argument that since the housing task force was not a public body, the records were not subject to FOIA. The court noted that the FOIA request was submitted to the City, not the task force, and the City is clearly a public body. 

So, in the court's view, the relevant issue was not whether the task force was a public body but whether the requested records were "public records" subject to FOIA. Based on the definition of "public records," documents are subject to FOIA if they pertain to the "transaction of public business." The court determined that they did pertain to public business because the task force's express mission was to make recommendations to the City on its housing strategy - a public interest rather than a private one. The court also determined that the City was "in possession of" the public records for purposes of FOIA. 

The court did not agree with the City's argument that its ruling would open up every piece of paper in City hall to inspection by the public, since there were exemptions that might apply to a particular record. 

Post Authored by Julie Tappendorf

Tuesday, May 1, 2018

Coming Soon: Ancel Glink’s New Podcast “Quorum Forum”

We are excited to report that Ancel Glink will soon be releasing our new podcast - “Quorum Forum.” Some of you may be wondering – what’s a podcast?  A podcast is like an “audio” blog but instead of reading about current legal topics of interest to local government officials and employees, you will listen in as Ancel Glink attorneys discuss these issues.

We just finished recording our first podcast episode last week and it will “go live” shortly. In our first episode, we highlight a few cases and pending bills, and engage in a discussion about the use of personal cell phones to communicate about government business.

You won’t want to miss episode one (or any of our future episodes), so stay tuned on this blog for more information about how you can subscribe so you can listen in.

Post Authored by Julie Tappendorf

Monday, April 30, 2018

Bill Would Require Pension Funds to Broadcast Meetings to Public

HB 4413, if enacted, would require all Illinois pension boards to broadcast their open meetings to the public and maintain those recordings on the pension fund's website. The recordings can be in either audio or video format. The bill passed in the Illinois house by a vote of 71 to 39, and is currently in committee in the Illinois senate. The Illinois Municipal League, public safety union organizations, and others oppose the bill. 

Post Authored by Julie Tappendorf

Thursday, April 26, 2018

Local Government Severance Pay Bill Introduced

SB 3604 was recently introduced that proposes to create the "Local Government Severance Pay Act." If passed, the law would require any unit of government that enters into an employment agreement or renews or amends an existing employment agreement to comply with certain statutory restrictions on severance provisions in those agreements. 

First, the Act would restrict the amount of severance pay that an employee could be entitled to under the agreement to no more than 20 weeks of compensation. 

Second, the Act would prohibit any payment of severance to an employee who was fired for misconduct. The Act defines misconduct fairly broadly, to include the following:
  1. conduct that would be found to be a deliberate violation or disregard of reasonable standards of behavior; 
  2. carelessness or negligence manifesting culpability or wrongful intent; 
  3. chronic absenteeism or tardiness; 
  4. willful and deliberate violation of a state standard or regulation by an employee licensed or regulated by the state; or 
  5. a violation of an employer's rules or policies, with some exceptions.

The bill was introduced two weeks ago and is currently in committee. We will follow this and report back if it moves forward.

Post Authored by Julie Tappendorf

Wednesday, April 25, 2018

Water Shutoff May Violate Tenant's Constitutional Rights

In a recent decision from the Second Circuit Court of Appeals, a federal court found that a city violated both the Equal Protection and Due Process clauses of the U.S. Constitution when it terminated water service to tenants whose landlords failed to pay the water bill. Winston v. City of Syracuse. Although the case comes from a court outside of Illinois, it is still of interest since it specifically mentions a Seventh Circuit decision involving an Illinois municipality.

A tenant in a multi-family building had her water services turned off by the City when her landlord failed to pay the water bill. Winston attempted to pay her landlord’s overdue water bill in order to restore service; however the City’s ordinance allowed only property owners to make applications and pay for water services.

As an initial matter, the court found the City had a rational basis for classifying tenants and landlords differently for the purposes of opening water accounts with the City because property ownership, as opposed to rental, allowed City to collect its unpaid water bills more effectively because it could subject the property to liens.

However, the court found that terminating a tenant’s water service was not a rational means of collecting the landlord’s water debt because the tenant (the one directly penalized by the shutoff) was not the debtor. So, the City’s policy of shutting off water to tenants whose landlords failed to pay the water bill could violate the Equal Protection clause.

Closer to home, the Seventh Circuit had previously ruled in favor of a tenant on a similar issue involving an Illinois municipality in Sterling v. Village of Maywood, 579 F.2d 1350 (1978). There, the court found an equal protection violation after the Village refused to turn on water service to the tenant's unit because of the landlord's failure to pay for water service. The court also questioned whether the Village's refusal to provide water service violated her due process rights. 

Post Authored by Jessi DeWalt, Ancel Glink

Tuesday, April 24, 2018

City Not Liable for Flooding on Residents' Property

In a recent unpublished opinion, an Illinois appellate court ruled in favor of a municipality in a lawsuit filed by residents who claimed the City was liable for flooding on the residents' property. Adcock v. City of O'Fallon, 2018 IL App (5th) 160435-U.

The Adcocks sued the City and the developer of land near their property claiming both were responsible for flooding on their property. The City filed a motion to dismiss the case, arguing that the City was not responsible because (1) it had no duty to inspect or maintain the private drainage system; (2) it did not create the flooding; and (3) the City is not liable for stormwater diverted by the developer of neighboring property. The circuit court agreed, and dismissed the case against the City, and the Adcocks appealed.

The appellate court rejected the Adcocks' argument that the City should be responsible for the damages that allegedly resulted from the diversion of stormwater from the nearby development. Importantly, the appellate court noted that the City did not create the nuisance - that was the developer's action in building its condominium development on nearby property, and that party had already settled its claims with the Adcocks for a full release. There was no evidence to convince the appellate court that the City should be responsible for fixing the plaintiffs' flooding issues.

Post Authored by Julie Tappendorf