Tuesday, June 28, 2016

2016 Planning Law Review - Webcast June 30th



The American Planning Association and American Institute of Certified Planners are sponsoring the "2016 Planning Law" webcast on June 29, 2016 (Wednesday) from 3:00 p.m. to 4:30 p.m (Central time).  You can learn more here.

Summary of Topics:  

As the U.S. Supreme Court concludes its session, APA convenes planning attorneys to discuss the most important decisions of the year. In addition to the Supreme Court cases, the panel reviews district and state court rulings. Find out whether APA filed amicus briefs and why. Stay current, be informed, and invite your officials or clients to attend.

Speakers:

o    John Nolon
o    Deborah Rosenthal, FAICP
o    John Baker
o    Julie Tappendorf (Municipal Minute blog author)
o    John Echeverri

Monday, June 27, 2016

The IHSA is Not a Subsidiary Body Under FOIA (part 2)

Last year we reported on a circuit court decision ruling that the Illinois High School Association (IHSA) was not a public body for purposes of the Illinois Freedom of Information Act.  The case had been filed by the Better Government Association (BGA) after it had requested, and been denied, a request for various records held by the IHSA. The circuit court agreed with the IHSA that it was not subject to FOIA. 

The BGA subsequently appealed to the appellate court, which issued an opinion last week affirming the circuit court. In short, the appellate court agreed that the IHSA was not a public body for purposes of FOIA. Better Government Association v. Illinois High School Ass'n, et al., 2016 IL App (1st) 151356.

The BGA had filed a request with the IHSA for accounting, sponsorship, public relations/crisis communications services and all licensed vendor applications for 2012-2014. IHSA had denied the request, stating it was a non-profit organization that is not subject to FOIA. The BGA sued, arguing that the IHSA is a "subsidiary public body" under FOIA because it performs a governmental service for its member school districts. The appellate court applied a three-part test in determining whether the IHSA was a subsidiary body, which test had been used in applying the Open Meetings Act definition of "public body." Under that test, the court is to look at the following:

(1) whether the entity has a legal existence independent of government resolution;
(2) the nature of the functions performed by the entity; and
(3) the degree of government control exerted.

As to the first factor, the appellate court determined that the IHSA, as a non-profit 501(c)(3) organization, has an independent legal existence separate from its member schools. It maintains its own employees, owns its own building, and files its own tax returns, all factors in favor of independence.

With respect to the second factor, the appellate court determined that even though a public body could perform the same functions as the IHSA in developing, supervising, and promoting interscholastic competitions among its member schools, the IHSA does not perform public, governmental functions in this case.

Applying the third factor, the appellate court found that the IHSA is not owned or controlled by its member schools; rather, it is controlled by its board members. The day-to-day functioning of IHSA is provided by an executive director and administrative staff, all of whom are employees of IHSA and not its member schools. The IHSA does not receive governmental funding.

This case provides a good analysis and guidance on how courts will interpret the "subsidiary public body" language in both the OMA and FOIA.

Post Authored by Julie Tappendorf

Thursday, June 23, 2016

7th Circuit Enjoins Local Government from Restricting Certain Ads on Buses

The Seventh Circuit Court of Appeals recently ruled that a municipal transportation agency (Citilink) must violated the free speech rights of a non profit organization when it refused to allow the organization's advertisement of women health care services on its buses. Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., June 22, 2016).

Citilink is a municipal corporation that provides bus services in Fort Wayne, Indiana.  It also has regulatory authority over advertisements both inside and outside of its buses. Women's Health Link is a non profit organization that provides health care for women in Fort Wayne. Health Link asked Citilink to post an advertisement in Citylink buses that advertised Women's Health Link as a "Free resource for women seeking health care." You can see the actual advertisement on page 2 of the court's opinion. 

Citilink refused to post the ad because it claimed the ad violated its policy prohibiting ads that "express or advocate opinions or positions upon political, religious, or moral issues." According to Citilink, Health Link provides counseling to women with unplanned pregnancies, including resources about alternatives to abortion, which Citilink determined was a "moral issue." According to the opinion, Health Link is a known "pro-life" organization.

Health Link sued Citilink, alleging that Citilink's refusal to allow its ad was a violation of its First Amendment free speech and expression rights, among other allegations. The Seventh Circuit agreed with Health Link, finding that Citilink's refusal to allow Health Link's ad was an unjustifiable restriction of free speech. The court acknowledged Citilink's right to prohibit certain types of advertisements, including material that contains profane language, that "incites, describes, depicts, or represents sexual activities," and that "is libelous," among others. However, Health Link's ads violated none of these policies and, as a result, the ban of this ad could only be deemed discriminatory, according to the court. 

The court concluded by stating as follows:
Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it 'must respect the lawful boundaries it has itself set.' 
As a result, the court held that Citilink's refusal to post the ad was groundless discrimination against constitutionally protected speech, and Citilink was enjoined from refusing to post Health Link's ads.

This case should provide some guidance to local governments on how courts might view government restrictions on advertisements in public spaces - not just buses, but kiosks, bulletin boards, websites, and newsletters, among other spaces.

Post Authored by Julie Tappendorf

Tuesday, June 21, 2016

Update on Proposed Bill Requiring Local Government Expense Policies

On April 21, 2016 we reported on HB 4379, which had passed the Illinois House and was under consideration by the Illinois Senate.  The bill has since passed both legislative chambers and has been sent to the Governor for his consideration.  HB 4379 requires school districts, community college districts and non-home rule municipalities to adopt a policy, by ordinance or resolution, regulating reimbursements of travel, meals, and lodging expenses for all officers and employees.

The policy must address the following:
  1. The type of business eligible for reimbursement;
  2. The maximum allowable reimbursement for each expense; and
  3. Creation of a standardized form for submission of expenses. The form must address (a) estimated costs or actual receipts for costs incurred, (b) name and job title of officer or employee, (c) date of travel and a description of the event.

Any expense exceeding the maximum allowable amount for such expense and all expenses for members of the governing body must be approved by a roll call vote of the governing body.  Expenses exceeding the maximum allowed under the policy may be reimbursed only if the governing body finds emergency or other extraordinary circumstances.

The bill prohibits reimbursements for entertainment defined as shows, amusements, theater, circuses, sporting events or other public and private entertainment or amusement.

The bill also prohibits all reimbursements unless a policy, in compliance with the statute, is adopted by the governing body.

Affected governmental entities should consult with their attorneys and be ready to develop a compliant policy if this bill is approved by the Governor.

Post Authored by Steve Mahrt, Ancel Glink

Monday, June 20, 2016

Municipalities May Be Liable for Attorney Fees And Vehicle Storage Fees Under SB 2261


Many municipalities have enacted ordinances requiring the impoundment of vehicles used in the commission of certain violations identified in section 11-208.7 of the Illinois Motor Vehicle Code.  Some of these violations include driving under the influence of alcohol or drugs, operating a vehicle in the commission of a felony, or in violation of the Cannabis Control Act, and operation of a vehicle without a valid license.  Some home rule municipalities have expanded the list of violations subject to impoundment.

While vehicle impoundment under the Illinois Motor Vehicle Code and home rule ordinances has been sanctioned, some courts are beginning to question certain aspects of municipal impoundment ordinances.  For instance the 5th District Court of Appeals recently questioned the appropriateness of the fee charged for vehicle impoundments.  The 3rd District Court of Appeals recently questioned whether an impoundment ordinance is valid unless appropriate signs are posted warning motorists of possible impoundment. 

The Illinois Legislature has now weighed in on the subject.  The Legislature passed SB 2261 and sent it to the Governor for his consideration.

SB 2261 creates a statewide commission to study current towing laws, recommend an appropriate towing program for the state, and review all costs for an owner of an impounded vehicle, the towing company, and the governmental entity impounding the vehicle.

The bill also requires payment of a vehicle owner’s attorney fees and vehicle storage costs “if the Administrative Hearing Officer finds a county or municipality that impounds a vehicle exceeded its authority under this code.”  The bill does not define when a county or municipality “exceeded its authority.”  The legislative summary of the bill states that “exceeded its authority” is something different “than the Administrative Hearing Officer finding no probable cause for vehicle impoundment.”


Municipalities with vehicle impoundment ordinances may want to provide comments to the Governor’s Office before the bill is signed. If it becomes law, municipalities may need to review and change their current practices to comply with any new program requirements recommended by the state commission.

Post Authored by Steve Mahrt, Ancel Glink 

Friday, June 17, 2016

Indiana's Ban on Elected Officials Holding Employee Positions Upheld

The 7th Circuit Court of Appeals recently issued an opinion on a "resign-to-hold elected office" law passed by the Indiana General Assembly in 2012. Claussen v. Pence, 2016 WL 3213036.  The law provides that “an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.” Indiana Code § 3-5-9-5. In this case, civil servants in Indiana who served on both city and town councils filed a lawsuit claiming that the new Indiana law violated their First Amendment and the Equal Protection rights. The State of Indiana and its Governor along with the several members of the State Board of Accounts moved to dismiss the case, which was granted by the U.S. District Court of Northern District of Indiana.

The elected officials appealed the dismissa, but the 7th Circuit Court of Appeals upheld the district court's decision. In their appeal, the elected officials contended that law violated their right to municipal office by requiring them to resign from their civil servant positions after winning an election.  The 7th Circuit relied on a series of "resign-to-run" cases, which upheld laws that require public employees to resign before running for election. Relying on those cases, the Court determined that Indiana's law was constitutional and was actually more favorable to the candidates because it allowed them to run for election while still being employed as civil servants.

The elected officials argued that the law was a violation of their fundamental right to hold municipal office. The court rejected this argument, ruling that holding a municipal office is not a fundamental right, so Indiana only needed to establish that the law was rationally related to a legitimate government purpose. Because the reasoning behind the law was to limit potential corruption and self-dealing by elected officials by not allowing them to serve on city and town councils that would oversee their civil servant positions, the court held that the slight burden placed on elected officials was outweighed by Indiana’s legitimate interest to avoid corruption and self dealing.

The elected officials also argued that their rights to equal protection had been violated because they were treated differently than private government contractors. The court also rejected this argument, stating that plaintiffs were not a suspect class, and government contractors are subject to extensive disclosure requirements to reduce the risk of self-dealing. Since Indiana’s law was related to preventing any actual or perceived corruption, the law again passed constitutional muster. 

Although this case interprets Indiana law, Illinois has a similar ban on elected municipal officials holding any other municipal office in the same municipality where they hold elected office (with a few identified exceptions):  
  (65 ILCS 5/3.1-15-15) (from Ch. 24, par. 3.1-15-15)
    Sec. 3.1-15-15. Holding other offices. A mayor, president, alderman, trustee, clerk, or treasurer shall not hold any other office under the municipal government during the term of that office, except when the officer is granted a leave of absence from that office or except as otherwise provided in Sections 3.1-10-50, 3.1-35-135, and 8-2-9.1. Moreover, an officer may serve as a volunteer fireman and receive compensation for that service.
Post Authored by Douglas Spale and Julie Tappendorf


Thursday, June 16, 2016

Tax Cap Applies to Road District Road Fund Tax


In a recent Illinois case, the court looked at the issue of whether a township road district had authority to levy a permanent road-fund tax without following the referendum process set out in the tax cap law. In Hampshire Township Road District v. Cunningham, 2016 IL App (2d) 150917, the court said no, and ruled in favor of the county clerk who had refused to levy the tax because the district had failed to follow the referendum procedure required by the Property Tax Extension Limitation Law (known as the tax cap law).

A group of citizens had petitioned for a referendum at an annual town meeting to consider whether the township road district would have the power to levy a tax for road construction and maintenance. A referendum was held under the process set out in the highway code, which allows the referendum to be conducted at the town meeting. At that meeting, 19 citizens approved the question. When the road district attempted to enforce the levy, the county clerk refused to extend the tax because the district had not followed the direct referendum process required by the tax cap law. That law requires non-home rule local governments to follow a particular procedure, including a referendum, before levying a new tax.

The district filed suit against the clerk to enforce the tax levy. The district argued that a tax cap referendum was not required to levy this particular tax because the tax was imposed pursuant to the highway code, and the district followed the specific referendum process in that statute (rather than the tax cap law). Both the trial and appellate courts disagreed with the road district, and ruled in favor of the county clerk, holding that the tax cap law "trumps" other procedures.

The court looked at both the language of the tax cap law and its legislative history. First, the court stated that the tax cap law requires a direct referendum if a new rate is either: (1) authorized by statute to be imposed without referendum; or (2) subject to a backdoor referendum. Under this test, the court determined that the district’s road tax was a new rate. Second, the court held that that the language in the tax cap law overrides other laws and that the district was required to submit the new rate to a referendum under the process set out in the tax cap law. In other words, the town hall "referendum" held under the highway code was not sufficient to meet the process required by the tax cap law.

Based on the holding of this case, non-home rule units of government will now have to carefully consider whether the tax cap procedures will apply in levying new taxes/rates.

Post Authored by Douglas Spale and Julie Tappendorf, Ancel Glink

Wednesday, June 15, 2016

Legislature Proposes "Local Government Wage Increase Transparency Act"

Ancel Glink's sister blog, The Workplace Report, just reported on a bill that is of interest to all Illinois governments who participate in the Illinois Municipal Retirement Fund (IMRF).

House Bill 5684, entitled the "The Local Government Wage Increase Transparency Act," just passed both the Illinois Senate and House, and has gone to the Governor for signature. If this bill becomes law, it will prohibit certain wage increases or lump sum payments to a local government employee during the employee's last 12 months of employment (where the employee has notified the employer of his or her intent to leave) unless the increase or payment is disclosed and approved at a public meeting of the employer governing body. 

The bill 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 months reportable earnings. 

At the open meeting, the government body must disclose, at a minimum, the following about the "disclosable payment":

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.

The bill also would amend the Open Meeting Act to exclude compensation discussions from closed session if the compensation falls under the Local Government Wage Increase Transparency Act. 

Post Authored by Julie Tappendorf

Tuesday, June 14, 2016

PAC Should Post Advisory Opinions on Website

It's June 14th, so we are more than half way through 2016. Yet, the Public Access Counselor (PAC) of the Illinois Attorney General's office has only issued 3 binding opinions on OMA and FOIA complaints to-date. At this rate, we may see only 6 binding opinions in all of 2016. That compares to 15 binding opinions issued in 2015.

We have been critical on this blog about the PAC's own transparency in providing access to its opinions. While the binding opinions are posted on the Attorney General's website, the advisory opinions are not. Although these advisory opinions are not "law," they do provide useful guidance to public bodies in how the PAC office interprets FOIA and OMA. This is particularly important because the few binding opinions that are issued each year rarely deal with the day-to-day situations most commonly faced by public bodies in complying with these transparency laws. Instead, the binding opinions often highlight public bodies that fail to respond to FOIA - two of the three opinions this year dealt with public bodies that simply did not respond to FOIA. These situations (a complete failure to comply) are rare - readers of this blog already know that's not allowed. So how can these "few and far between" binding opinions assist public bodies in complying with these two transparency laws?

The real guidance on compliance with OMA and FOIA has generally come from the PAC's advisory opinions. For example, we reported on an advisory opinion from earlier this year that discussed a public body's public comment rule that required prior registration. In 2014, we wrote about the 35 advisory opinions interpreting the public comment rule some time ago. These opinions provide real guidance to public bodies.

According to a report filed by the Attorney General in March, the PAC received 4,770 requests for review in 2015. 4,381 of those were requests for review of FOIA actions, and 389 were requests for review of OMA actions. Out of all of the 4,770 requests for review, the PAC issued 15 binding opinions in 2015. So, what happened with the other 4,755 requests for review? Presumably, the PAC resolved most of these either through voluntary compliance or by issuing advisory opinions. 

It's been 6 years since the state legislature created the PAC office to oversee and enforce transparency by public bodies throughout the state of Illinois. It's time for the PAC to take one very simple step to promote transparency in its own operations - post all advisory opinions on the Attorney General's website. 

Post Authored by Julie Tappendorf

Monday, June 13, 2016

Proposed Changes to FOIA for Noncompliance with PAC Binding Opinions


The Illinois legislature recently passed House Bill 4715, which makes changes to the Freedom of Information Act.  The bill adds Section 11.6 to FOIA, providing that a requester who files a lawsuit under Section 11 of FOIA seeking to enforce a binding opinion of the PAC office of the Attorney General will have a rebuttable presumption that the public body willfully and intentionally failed to comply with FOIA if:

1.  The PAC issues a binding opinion under Section 9.5 of FOIA;
2.  The public body does not file for administrative review of the binding opinion within 35 days after it is served on the public body;  and
3.  The public body does not comply with the binding opinion within 35 days after it is served on the public body. 

The proposed legislation further states that the public body may rebut the presumption by showing that it is making a good-faith effort to comply with the binding opinion but that compliance was not possible within 35 days.

The proposed legislation also provides that a court may impose a penalty of up to $1,000 per day against the public body if the violation continues if:

1.  The public body fails to comply with the court order after 30 days,
2.  The court order is not appealed or stayed, and
3.  The court does not grant the public body additional time to comply. 

This new section would only apply to binding opinions requested or issued on or after January 1, 2017.

If signed by the Governor, these will impose pretty significant penalties on public bodies for noncompliance with binding PAC opinions.  

Post Authored by Erin Baker, Ancel Glink

Friday, June 10, 2016

List of Blocked Twitter Accounts May be Public Record Subject to Release

A question without a clear answer - something only a local government lawyer would find interesting?  Here it is:
Whether a list or record of accounts that have been blocked from posting to or accessing an elected official's personal Twitter feed is a public record.
This question was posed by the Gainesville City Attorney to the Florida Attorney General recently. The Attorney General issued an advisory legal opinion last week. Although the opinion does not provide specific advice to the City Attorney, it does give some insight or guidance on the issue.  First, the opinion states that the Florida Public Records law applies to materials made or received by an agency in connection with the transaction of business.  Second, the opinion states that if the tweets the public official is sending are public records, then a list of blocked accounts, prepared in connection with those public record "tweets" could be determined by a court to be a public record.

In other words, the answer to the question depends on a few factors.  First, is the tweet itself a public record?  Second, did the public body prepare a list of blocked accounts?  Third, if the answer to both of these questions is yes, then the list of blocked accounts is probably releasable.

The problem with this analysis is that the public official's tweets could be a mix of communications about official business and personal matters, and any list that the public official created of his or her blocked accounts could also include a mix of accounts blocked because of official business or personal matters. Based on the analysis in this opinion, the public official could redact from the list any accounts that were blocked as a result of personal tweets and release the rest.  

Post Authored by Julie Tappendorf

Thursday, June 9, 2016

Administration of Anti-Seizure Drug by Day Camp Staff Not Reasonable Accommodation Under ADA


In a fairly recent case, a federal district court in Illinois ruled that rectal administration of Diastat, an anti-seizure medication that is administered to patients with epilepsy during seizures, is not a reasonable accommodation under the Americans with Disabilities Act. U.S.  v. N.I.S.R.A., Case No. 12 C 7613  (N.D. Ill. 2016).

The Northern Illinois Special Recreation Association had adopted a policy prohibiting its staff from administering Diastat.  Instead, staff are directed to follow the person’s seizure plan to the best of their ability and to call 911 in the event of a seizure. Parents of a participant who suffers from epilepsy complained that the policy discriminated against their child and that the administration of Diastat is a reasonable accommodation under the ADA.  The United States Attorney General sued NISRA, seeking a declaration that NISRA’s policy violates the ADA and an injunction requiring NISRA to administer Diastat to participants in NISRA programs as may be medically required.

The district court ruled that the Attorney General failed to show that administration of Diastat by day camp counselors is a reasonable accommodation.   In reaching its decision, the court stated that:

the government’s requested accommodation seems to directly contradict the manufacturer’s instructions for Diastat, which are mandated by the FDA to accompany the drug. The manufacturer’s instructions state, in relevant part that the medication... should only be administered by caregivers who in the opinion of the prescribing physician 1) are able to distinguish the different clusters of seizures… 2) have been instructed and judged to be competent to administer treatment rectally, 3) understand explicitly which seizure manifestations may or may not be treated with Diazepam Rectal Gel, and 4) are able to monitor the clinical response and recognize when that response is such that immediate rectal evaluation is required.
The court found that the government’s request would require NISRA to disregard these instructions and held that request to be unreasonable.

While this decision provides park and recreation agencies guidance that they are not required to administer Diastat to their day camp participants, the discussion is not likely to end here.  The U.S. has filed an appeal.  Additionally, the court opened the door for further litigation when it concluded its opinion with the statement:

My decision might have been different had the government presented statistics on how a Diastat program under similar circumstances has been successful.  Perhaps this data does not exist, and this issue may need to be reexamined at some point in the future if and when such data becomes available.

For now, administration of Diastat is not a reasonable accommodation under the ADA and is not required by law.  We will provide updates as the litigation continues.

Post Authored by Jim Rock, Ancel Glink