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

Thursday, December 13, 2018

Another Election Special Quorum Forum Podcast Released



Ancel Glink's Quorum Forum podcast has just released Episode 16: Election Special! Governmental Issues and Electoral Boards. In this episode, we focus on the local election process. A summary of the podcast is below:

Election season isn’t just for candidates! Local election officials and electoral boards have many responsibilities to make elections happen. Meanwhile, local governments are asked to enforce political sign regulations and electioneering laws. Sometimes local governments get involved in elections themselves with their own referenda and public questions. With so many election-related issues, Ancel Glink’s Keri-Lyn Krafthefer joins us for another election special addressing governmental issues and electoral boards! 

What issues does your local government face during election season? Email us at podcast@ancelglink.com!

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Wednesday, December 12, 2018

Court Provides Guidance on "Unduly Burdensome" FOIA Requests


An Illinois Appellate Court recently issued a ruling in a FOIA challenge that provides public bodies with helpful guidance on what they need to show when responding to a requester that a particular request is "unduly burdensome." Sargent Shriver National Center on Poverty Law v. Board of Education of City of Chicago.

Shriver had submitted three FOIA requests asking for records pertaining to, among other things, complaints filed with Chicago schools relating to police officer or security guard conduct and employee misconduct reports.  In response to all three requests, the Board sent a notice of extension of time, and then notices that the requests were unduly burdensome under section 3(g) of FOIA and asking the requester to narrow the categorical request. When Shriver did not narrow the requests, the Board denied them as unduly burdensome. Shriver then sued, alleging that the Board willfully and intentionally failed to comply with FOIA. The circuit court dismissed the case against the Board, finding that Shriver's allegations were insufficient to show a violation of FOIA. 

On appeal, the appellate court agreed that the dismissal of Shriver's case against the Board was proper. First, the appellate court determined that the Board properly extended the time to respond to the request by sending notice to Shriver.  Second, the appellate court held that the Board properly denied the request as unduly burdensome after sending notice to Shriver asking it to narrow its categorical request. The appellate court noted that the Board had included a detailed explanation as to why complying with Shriver's request would be unduly burdensome, including the number of files that would have to be compiled, reviewed, and redacted and the Board's estimate of the manpower it would take to do that work. Interestingly, the second FOIA request involved 600 employee misconduct reports, and the appellate court accepted the Board's argument that it would be unduly burdensome to provide these records because it would take hundreds of hours to review and redact the reports.

This is an interesting and helpful decision for public bodies in understanding how courts will analyze requests that are denied as "unduly burdensome." One of the keys to this ruling seemed to be the Board's detailed description in the denial letter as to why compliance would be unduly burdensome.

Tuesday, December 11, 2018

New Act Extends PEDA Benefits to Paramedics


The Illinois General Assembly recently enacted P.A. 100-1143 amending the Public Employee Disability Act (PEDA) to expand disability benefits. Currently, PEDA requires a state or local government employer to continue to pay a police officer or firefighter, who is injured in the line of duty and unable to perform his or her duties, the employee's salary for a one year period without requiring the employee to use sick leave or other leave time. This new law extends PEDA benefits to a "full-time paramedic or a firefighter who performs paramedic duties." The Act is effective January 1, 2019.

The bill had been vetoed by Illinois Governor Rauner but the Illinois Senate and House voted to override the veto.

Monday, December 10, 2018

"Holiday Spirits" Quorum Forum Podcast is Live!


One of our most entertaining and quite timely Quorum Forum podcast episodes has just been released.  In Episode 15, "Holiday Spirits," you will hear Ancel Glink attorneys discuss new liquor licensing laws and regulations and much more.

You can access Episode 15 of Quorum Forum podcast here.

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer here

Wednesday, December 5, 2018

Don't Forget to Approve Your Annual Schedule of Regular Meetings


We wanted to send out a reminder that the Illinois Open Meetings Act requires Illinois public bodies to adopt an annual schedule of their regular meetings. So, before the end of the year, Illinois governments should schedule an item on an upcoming meeting agenda for the public body to approve the schedule of meetings for 2019. The annual schedule must include the times and places of all regular meetings. 5 ILCS 120/2.03.

This requirement applies not only to the corporate authorities (city council, village board, park board, school board, library board, township board, etc) but also to subsidiary bodies such as the plan commission, zoning board of appeals, etc. to the extent these subsidiary bodies have "regular" meetings as opposed to scheduling special meetings when needed.

Tuesday, December 4, 2018

Governor's Removal of IPRB Member Not Subject to Judicial Review


After Illinois Governor Rauner terminated the appointment of a member of the Illinois Prisoner Review Board, the terminated member sued, claiming he was wrongfully terminated. The circuit court agreed, but that ruling was reversed by the Illinois Appellate Court, which held that the Governor's decision to remove the IPRB member was not subject to judicial review. The case was eventually appealed to the Illinois Supreme Court in Gregg v. Rauner.

In 2012, Gregg, the mayor of Harrisburg, was appointed by former Governor Quinn to serve on the IPRB board. At the time of his appointment, Gregg was required to file  statement of economic interests. In his statement, he wrote "none" in the space requiring identification of any gift valued over $500. 

In 2013, the former treasurer of Harrisburg notified the state that Gregg had failed to include a medical lift chair that he had received as a gift. No action was taken at that time. 

In 2014, Gregg filed for bankruptcy, indicating on his petition monthly income of $4,027 from operating a business. After Governor Rauner took office, a newspaper reporter contacted the Governor's legal counsel asking whether Gregg's reported income violated state law that prohibits IPRB members from engaging in any other business, employment, or vocation. 

In 2015, Governor Rauner's General Counsel informed Gregg that the Governor's Office had received allegations that Gregg had submitted a false bankruptcy filing and had failed to report gifts on his statement of economic interests. Gregg responded that the income reported on the bankruptcy filing was his wife's and that the statement he filed related to 2011, and he was not asked to file an amended statement in 2012.  Shortly thereafter, the Governor terminated Gregg's appointment,, citing malfeasance, incompetence, and neglect of duty.

The circuit court ruled in favor of Gregg, holding that the reasons given by Rauner were not sufficient to constitute "cause" under state law. The appellate court reversed, finding that the court had no jurisdiction over the removal of members of the IPRB.

The Illinois Supreme Court agreed, finding that the separation of powers doctrine prohibited a court from reviewing the Governor's removal of a member of the IPRB because that review would interfere "with the Governor's responsibility for the faithful execution of the laws."  The Court acknowledged that there are other boards and commissions that are constitutionally created and politically independent where removal could be judicially reviewed; however, the IPRB was not such a board. As a result, the Court concluded that the Governor's decision to remove Gregg from the IPRB board was not subject to judicial review. 

Monday, December 3, 2018

Election Special Podcast Just Released on Quorum Forum


Ancel Glink's podcast, Quorum Forum has released a new Episode 14 on elections. Information about this very timely episode is below:


Local election season is underway, and you can’t win an election if you’re not on the ballot. That’s why Ancel Glink partner Keri-Lyn Krafthefer joins us to navigate you through the ballot access process, talking about nomination petitions, the statement of candidacy, the statement of economic interest, and more! 

How are you preparing for local elections in 2019? Tell us about it, podcast@ancelglink.com!

You can access this new episode on the Quorum Forum website here.

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer here

Thursday, November 29, 2018

No First Amendment Violation in County's Termination of Employee


A federal appeals court recently ruled in favor of a county being sued by a former employee who claimed the County violated her First Amendment rights by terminating her because of her political affiliation.

The County hired Bogart as its Financial Resources Director in 2007.  Bogart is a Democrat. In 2012, several Republican candidates won election to the County Board, giving the Republicans majority control of the County Board. The Board selected a Republican as the Chairman, who served from 2012 to 2014. At the end of 2014, the Chairman was replaced by another Republican who terminated Bogart within a month of taking that position. Bogart filed suit, claiming the County violated her civil rights by engaging in political retaliation and discrimination when it terminated her.

The district court ruled in favor of the County, finding that because Bogart's position entailed policy-making authority and discretion, the position fell within an exception to the general First Amendment ban on political patronage dismissals. 

Bogart appealed to the Seventh Circuit, which upheld the district court's ruling in favor of the County. The Court acknowledged that the U.S. Supreme Court has held that public employers cannot condition employment on an employee's political affiliation under the First Amendment's right of political association. However, the general rule has an exception known as the "Elrod-Branti" exception that applies when a public employer can show that party affiliation is an appropriate requirement for the effective performance of the public office. Factors such as policy-making authority, the provision of political advice, or access to confidential and politically sensitive thoughts are considered when determining whether a particular position is subject to the exception.

In this case, the Seventh Circuit determined that Bogart's position as the County's Financial Resources Director involved substantial policy-making authority, including developing budgeting and other financial planning documents for the County, making it "effectively a cabinet-level position" in the County, according to the Court. As a result, the County could terminate Bogart without violating her First Amendment rights. Bogart v. Vermillion County (7th Cir. Nov. 26, 2018)

Wednesday, November 28, 2018

Township Officials Not Entitled to Anti-SLAPP Act Immunity


Three City officials sued a Township Assessor and Supervisor, and the Township itself, claiming the defendants had defamed them and cast them in a "false light" when the Township Supervisor sent a letter to newspapers, local officials, and others alleging that the City officials engaged in criminal acts in connection with property exemptions. One of the letters from the Supervisor stated that he had "discovered how several current and former public servants used their inside status to scratch their own backs and lower their own property taxes - causing homeowners of Burbank to pay more property taxes."

The defendants argued  they were immune from liability under the state Citizen Participation Act (an anti-SLAPP statute - Strategic Lawsuits Against Public Participation), and asked the court to grant summary judgment to defendants. Specifically, defendants argued that the Act protected the Supervisor's actions because the letter was an act of participation in government. The circuit court denied the motion, finding that there was still a question of fact whether the statements in the letter were true or false and that defendants failed to show the lawsuit was meritless.

Defendants appealed, and the Illinois Appellate Court upheld the circuit court ruling against the defendants in Kainrath v. Gride, 2018 IL App (1st) 112270. Although, the appellate court agreed that the Supervisor's act of sending the letter was a protected act of citizen participation that would qualify defendants for protection under the Act, because defendants failed to show that plaintiffs' defamation and false light claims lacked merit they were not entitled to protection under the state's anti-SLAPP statute.

Monday, November 19, 2018

Judge's "Friendship" With Attorney on Social Media Does Not Require Disqualification


We have written in the past about how court's have interpreted social media "friendship," particularly in the legal or ethical sense when there is a question about bias or impartiality. A Florida Supreme Court recently issued a ruling weighing in on this issue involving an attorney's Facebook "friendship" with a judge who was assigned to one of the attorney's cases. 

A law firm had filed a motion to disqualify the judge in a case because the judge was Facebook "friends" with opposing counsel. The judge denied the motion, ruling that the mere fact that a judge is friends with an attorney appearing before the judge does not, alone, disqualify the judge from a case. That ruling was appealed and made its way to the Florida Supreme Court which upheld the judge's ruling. The Court stated that the fact that a judge and an attorney are Facebook friends, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the attorney. The Court emphasized that a social media "friend" may or may not be a "friend" in the traditional sense, noting that social media users may have thousands of social media "friends" that are more casual and less permanent in nature than traditional friendships. The Court cited numerous bar association and ethics opinions that also ruled that a social media friendship, without more, does not establish bias or influence that would require disqualification.

You can read the opinion here.

Friday, November 16, 2018

PAC Says Records Involving Juvenile Witnesses and Victims Not Exempt From FOIA


The PAC just issued a binding opinion that sheds some light on how the Attorney General interprets recent changes to the Juvenile Court Act and FOIA.  PAC Op. 18-016.

A law firm that routinely files FOIA requests with municipal police departments for traffic accident reports submitted a request to the Rock Island PD for a particular accident report. The PD denied the request, citing section 7.5(bb) of FOIA and section 1-7(A) of the Juvenile Court Act. The PD argued that the accident report was exempt because the accident involved six minors who were listed as victims and witnesses in the report. The PD pointed to a recent amendment to the Juvenile Court Act that provides that "All juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available." 

The law firm appealed the denial to the PAC, which found the PD in violation of FOIA for denying the request for the accident report. The PAC first reviewed the Juvenile Court Act and the recent amendment and determined that "juvenile records" was not defined. However, the PAC noted that the legislative history of the new language suggested that the legislature intended to protect "juvenile records" that relate to a minor who has been "investigated, arrested or taken into custody" and not records where the minor is a witness or a victim. 

In short, the PAC found that the Juvenile Court Act protects law enforcement records where a minor is being investigated, arrested, or taken into custody, but does not protect records where the minor is a victim or witness.  

Although not addressed in the opinion, the PD might have redacted the names and identifying information about the minors and cited 7(1)(c) of FOIA which exempts records where the public body can demonstrate that disclosure would be an unwarranted invasion of personal privacy that outweighs any public interest in their release. 

Thursday, November 15, 2018

First Amendment Lawsuit Against Cook County Circuit Court Not Appropriate in Federal Court


The Seventh Circuit Court of Appeals reversed a district court's injunction against the Cook County Circuit Court Clerk that ordered the Clerk to provide immediate access to all court filings to a news service. Courthouse News Service v. Brown (7th Cir. Nov. 13, 2018).

Courthouse News Service had filed the federal lawsuit against the Cook County Circuit Court claiming that the Court violated its First Amendment rights when it failed to provide immediate access to newly filed complaints. The district court ruled in its favor and issued an injunction ordering the Circuit Court Clerk to implement a system that would provide access to newly filed complaints contemporaneously with the Clerk's receipt of those complaints.

On appeal, the Seventh Circuit Court of Appeals reversed the injunction granted by the district court. Although the Seventh Circuit did acknowledge that the First Amendment protects the right to access,  the Court determined that federal courts should not be deciding whether state courts have violated a right of access. In sum, the Court held that the district court should not have exercised jurisdiction over this dispute, and the case should be heard in state court.