Friday, January 23, 2015

Sympathetic Facts and Real Efforts Allow Employee to Establish Residency Compliance

Absent language in state law or a union or employment contract, a governmental body can require an employee or an appointed officer to live either within the government body’s jurisdiction or some maximum distance from its boundaries.  Establishing residency, however, is a matter of intent and courts will listen to sympathetic facts about employees who made a conscientious effort to comply with residency requirement.  That was the issue in a recent Illinois appellate case, where the court overturned lower decisions and returned the employee back to his former position.  Thomas v. CTA (Dec. 2014).

In 2008, Thomas was hired by the CTA as a resource planner.  At the time of his employment, he and his family owned and resided in a home in Arlington Heights.  Under the CTA rules, a new employee was required to move into the CTA service area within 6 months of employment. Arlington Heights is outside of the CTA service area.  Thomas tried to sell his house but was unable to do so.  He applied for and received a one-year extension to this requirement.  At the end of the year, he moved into an apartment in Chicago in a building owned by one of his relatives.  He changed his mailing addresses to the Chicago location, and he slept at this location most evenings.  He attempted to buy a house in Glenview, which is within the CTA service area, but the deal fell through.  

His wife and two children continued to live in Arlington Heights.  His wife suffered from a physical disability and the home in Arlington Heights was handicap equipped.  Thomas testified that the family continued to look for a more permanent residence for the entire family in the service area, but that they could not afford to make that move until they were able to sell their house.  Each day, he would leave the Chicago apartment for Arlington Heights, where he helped his children go to school and his wife to work.  He would then return to his job in Chicago.  He assisted the family at the end of the day in the same way and then returned to Chicago.  The evidence showed that this really was Thomas’ living situation. Thomas testified that the CTA seemed to be asking him to get divorced in order to establish a separate domicile form his wife.  Even though it was very difficult to do so, he slept in his Chicago residence from Monday through Thursday.

In its analysis, the appellate court concluded that in order to establish residency, a person must demonstrate physical presence at a particular location and intent to remain at that place as a permanent home.  The court concluded that Thomas did, in fact, spend every night between Monday and Thursday at the Chicago home and had established an adequate physical presence.  The court concluded that Thomas intended to abandon the Arlington Heights home, but that circumstances would not allow his family to do so.  There was no evidence to show that Thomas’ residence in Chicago was a sham and all of the evidence shows that the family made a longstanding effort to comply with the rules under very difficult circumstances.  The relative who owned the Chicago residence allowed Thomas to stay there rent free.  Thomas paid the utilities.  Again, the court, reviewing a sympathetic set of facts, said that Thomas “should not be penalized for a kindness extended to him by a family member.”  The court reviewed a number of cases, all of which were decided based upon the particular facts and whether there was a pattern to demonstrate that the employee’s argument for residence was merely a subterfuge or a scam.  

The Thomas case teaches us that government bodies should be sympathetic with efforts by their employees to comply with a residence requirement and to consider granting extensions for demonstrably hardship circumstances.  The alternative is much litigation and perhaps unnecessary costs.  The court also dealt with the argument that not only the employee, but his or her entire family must move into the area of required residency.  Absent a specific provision in the employment policy of the governmental body making that requirement, the courts will view residency requirements to generally only cover the employee.  The court concluded that “any suggestion that Thomas needed to formally separate from his family and abdicate his family responsibilities in order to perfect an abandonment of his suburban residency would be contrary to public policy.”  

Post Authored by Stewart Diamond, Ancel Glink

Thursday, January 22, 2015

Executive Order 15-10 Affects Government Transparency

It has been a little over a week since Governor Rauner was sworn into office as Illinois' new governor, and he has already issued five executive orders.   Some of these orders have been given a lot of press coverage (such as the order rescinding former Governor Quinn's final executive orders and the one freezing government spending).  One of the executive orders - Executive Order 15-10 - addresses the Illinois Transparency & Accountability Portal Act ("ITAP Act") and affects local governments.

The ITAP Act became effective in 2013, and requires the Department of Central Management Services (CMS) to establish a website where information would be posted about state agency contracts and state employees for public inspection..  20 ILCS 405/405-335.   

More relevant to local governments, the Act also requires  CMS to post a searchable database of information pertaining to "county, township, library district, and municipal employees," that includes: (1) employing unit of local government; (2) employment position title; and (3) current pay rate and year-to-date pay. Under the Act, state agencies, counties, townships, library districts, and municipalities are to cooperate with CMS to furnish the information for CMS to post.

Governor Rauner's Executive Order 15-10 does three things with respect to the ITAP Act.  (You can read the press release about the Order here and the Executive Order here)

First, it requires CMS to distinguish between "Rutan-exempt" hires (state employees that are exempt from the standards set out in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)) on the portal website.  

Second, it requires all state agencies to provide CMS with the "necessary and accurate information" to comply with the Executive Order.

Third, and most important to municipalities, counties, townships and library districts, it states that CMS is required to assist these governmental bodies in providing information to comply with the local government employee provisions of the ITAP Act.  

So, what does this mean for municipalities, counties, townships and library districts?  Well, nothing in the Executive Order or the Act places an affirmative duty on these local government bodies to provide the required employee information.  Instead, the ITAP Act states that the local governments will "cooperate with the Department in furnishing the information necessary for the implementation of this Section within a timeframe specified by the Department."  That suggests that CMS will make a formal request for information from the local governments and provide a specific timeframe for a response.   The assistance required of CMS in the Executive Order doesn't appear to change that, or place any additional obligations on a local government.  Instead, it states that CMS will assist the governments in providing the information that will be posted on the portal website.

I expect that state agencies and local governments will hear from CMS in the coming weeks, as CMS determines how best it can comply with the Executive Order.  Until then, it doesn't appear there is anything for local governments to do to comply with the Order until contacted by CMS.

Post Authored by Julie Tappendorf

Wednesday, January 21, 2015

Government Social Media Conference Scheduled for Spring in Reno


Attorney Julie Tappendorf will present a session on “Keeping it Legal on Social Media” at the 2015 Government Social Media Conference & Expo (GSMCON) in Reno, Nevada, this spring.  This highly requested training covers several hot legal topics related to government use of social media.

Julie is a partner with Chicago firm, Ancel Glink, and has represented numerous government entities on matters related to the legal and ethical side of using social media. She is the co-author of the book Social Media & Local Governments: Navigating the New Public Square (ABA Press, 2013) and is the blogger behind Municipal Minute, where she writes about laws, cases, and other topics related to the government use of social media.

Conference attendees will learn how social networking impacts the First Amendment and other laws. Julie will cover other commonly misunderstood areas of social media and the law, including what agencies can and cannot do regarding their employees’ personal social media use, as well as the importance of developing and implementing a social media policy.
You can learn more about the conference and register on the conference website and below:

THE SOCIAL MEDIA EVENT FOR U.S. STATE & LOCAL GOVERNMENT!

The 2015 Government Social Media Conference & Expo (GSMCON) is the first social media conference for U.S. city, county and state government. April 29 – May 1, 2015 in Reno, NV.
  • Collaborate with a network of state and local social media managers.
  • Learn strategy and technique from experts and peers.
  • Maximize your program to bring value to your citizens.

Tuesday, January 20, 2015

Securing Abandoned Property - "MERS" Certification

Many municipalities are dealing with the problem of abandoned residential property.   Under Illinois law, municipalities have the authority to board up these buildings and place a lien on the property for the cost of doing so, without a court order.  See 65 ILCS 5/11-31-1.01.  However, that same law says that this authority is null and void if the Illinois Department of Financial and Professional Regulation has certified that the “Mortgage Electronic Registration System program” is effectively registering mortgaged residential property in Illinois.  The MERS program is a complex and controversial national system of registering mortgage lenders who are responsible for maintenance of abandoned property.  

The good news for municipalities that want to take advantage of this authority is that the IDFPR has not certified the MERS program.  That means that municipalities do have the authority to board up abandoned buildings without a court order.  The full statute is reprinted below:

  (65 ILCS 5/11-31-1.01)
    Sec. 11-31-1.01. Securing or enclosing abandoned residential property.
    (a) In the case of securing or enclosing an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to secure or enclose the exterior of a building or the underlying parcel on which it is located under this Section without application to the circuit court, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the recovery of the costs of such activity.
    (b) For the purposes of this Section:
        (1) "Secure" or "securing" means boarding up, closing
    
off, or locking windows or entrances or otherwise making the interior of a building inaccessible to the general public; and
        (2) "Enclose" or "enclosing" means surrounding part
    
or all of the abandoned residential property's underlying parcel with a fence or wall or otherwise making part or all of the abandoned residential property's underlying parcel inaccessible to the general public.
    (c) This Section is repealed upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.
(Source: P.A. 96-856, eff. 3-1-10.)

Post Authored by Paul Keller, Ancel Glink

Monday, January 19, 2015

Q&A About New Email Posting Requirement

I've posted a few times about the new law that took effect January 1st requiring units of local government and school districts to post on their websites a mechanism for members of the public to electronically communicate with their elected officials.  A government can meet this new requirement in a variety of ways, including posting a universal email address (such as villageboard@nameofmunicipality.com) or the individual email addresses of the elected officials. Alternatively, a government might use a "contact us" form to allow users to select elected officials as the recipient of the email.  Whatever method you use, information about that method must be easily available or searchable from the government's home page by use of a hyperlink.

I've had a number of questions about this new law so I put together a "FAQ" below.  Because the law is so new, there are no cases or opinions interpreting the requirement, so you should check with your local attorney to make sure you are complying with the new law.


1.   What is the deadline for compliance?

Government bodies subject to the new law must comply within 90 days of the effective date, or by April 1, 2015

2.  Are townships subject to the new law?

Yes.  The new law specifically applies to school districts and "units of local government."  Units of local government are defined in state law to include "counties, municipalities, townships, special districts, and units designated as units of local government by law."  That would also include park districts, library districts, and other special districts and local government units. The law does exempt those units of government that serve a population of 1,000,000 or more, however.

3.  We don't have a website - does the law still apply to us?

The law only applies to units of local government and school districts that have a website.  There is no requirement that you establish a website if you don't already have one.

4.  We don't have a website, but we do have a government Facebook page - do we need to post the information on that site?

No, the new law excludes social media and networking sites from the definition of "Internet website."
 
5.  Our elected officials do not have official government email addresses - they all use gmail or some other personal email service. Do we have to post their personal email addresses on the website?

The law does not mandate that you post individual email addresses of elected officials (official or personal) - one of the alternative methods of complying with the law would be to set up a single, uniform email address where members of the public can contact the elected officials.  For example, you could set up an email address called electedofficials@district.com (or some other variation) and post a hyperlink to the email address or a link to that information on the home page of your website.

6.  We already have a "Contact Us" form on our home page - will that work?

That would be an alternative mechanism to comply with the law if (1) the "contact us" form allows the user to select the governing board (i.e., "village board" or "school board") as a recipient of the electronic communication and (2) a hyperlink to the information or the form is located on the home page of the website.

7.  We already include our elected officials' emails on the "village board" page of our website - do we need to do anything else to comply?

You would need to add a hyperlink on the home page of your website that directs users to the village board page where they can find the emails.

8.  We are home rule - are we exempt?

No, the law contains a home-rule preemption, meaning that home rule governments are subject to the law.



Friday, January 16, 2015

Under the Telecom Act, It's Not Only How You Say It, But When You Say It

The U. S. Supreme Court issued its opinion in T-Mobile South, LLC v. City of Roswell (USSCT, Jan. 14, 2015) finding the City in violation of the federal statutory requirement that the siting authority issue its decision "in writing."  

The 1996 Telecommunications Act controls how States and Local Government may regulate cell towers.  Under the Act a decision to grant or deny a siting location for a cell tower must be in writing and supported by substantial evidence contained in a written record.  110 Stat. 151, 47 U.S.C. 332(c)(7)(B)(iii).

The city council for Roswell Georgia, held a public hearing to consider an application by petitioner T-Mobile South, LLC, to build a cell phone tower on residential property. During the hearing, several Council members expressed concerns about the tower’s impact on the area. The hearing ended with the Council unanimously passing a motion to deny the application. Two days later, the City’s Planning and Zoning Division informed petitioner by letter that the application had been denied and that minutes from the hearing would be made available. The detailed minutes were published 26 days later.

T-Mobile sued alleging that the action of the City violated the 1996 Telecommunications Act.  T-Mobile asserted that the notice of denial must contain the substantial evidence in support of the decision. 

In a decision just issued this week, the U.S. Supreme Court disagreed finding that separate written records could be used to provide notice of the decision and the substantial evidence needed to support the decision.  Here the written minutes of the hearing supplied the substantial evidence.  

"We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality.   Instead,  the locality's reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.

The Court nevertheless held that the City violated the Act by waiting 26 days to provide minutes of the hearing.  The minutes should have been supplied with the letter of denial.

As in comedy, timing is everything.  Take time to contact your attorney for assistance concerning issues under the Telecommunications Act.

Post Authored by Steve Mahrt, Ancel Glink

Thursday, January 15, 2015

Supreme Court Hears Sign Case (Reed v. Gilbert)

We have posted previously about the U.S. Supreme Court's taking on the appeal of the case involving the Town of Gilbert, Arizona's sign regulations as applied to a local church.  Monday, January 12th, the Court heard oral arguments in the case.  There are a lot of opinions out there on how each side fared in the oral argument, and some predictions as to who will ultimately prevail.  

As you may recall from our previous post on this case, 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.  

Based on my read of the Supreme Court's transcript of the oral argument, it seems unlikely that the Court will rule entirely in favor of the Town.  I (and other municipal attorneys) are hopeful, however, that the Court finds a "middle ground" that does not completely obliterate municipal authority to regulate temporary (or other) signs.  I do have concerns about the Justices' questioning of the Town's rationale for its limitations on temporary signs and why political signs were treated differently from other temporary signs.  

Our friend John Hedrick (attorney and planner) has written his thoughts about the oral argument on his blog.  He makes the following statement, which I think is on point:
There’s an old legal saying that “bad facts make bad law.” This instance may be a such an example.  Yet all varieties of temporary signs (including real estate, event, and feather flags) will now be open for reconsideration.  In any event, communities will want to anticipate some degree of changes and challenges to their local ordinances when the USSCt opinion is published in the coming months.
Post Authored by Julie Tappendorf

Wednesday, January 14, 2015

Settlement Reached in Case where Person Banned From School Board Meetings

So, yesterday we reported on a town that banned negative comments on its social media sites.  Today, we are reporting on a school board that banned an individual from attending school board meetings for two years.  Do you think we have similar First Amendment issues?  A federal court in Vermont said yes in Cyr v. Addison Rutland.  

Last September, a federal judge ruled that the Addison-Rutland Supervisory Union School District violated Marcel Cyr's constitutional right to free speech and due process when it issued no-trespass orders that banned him from school property.  The Cyrs raised a variety of concerns with the District about their two sons' education, and the Cyrs frequently filed requests for documents (as much as 5,000 records).  The Cyrs displayed signs on their family car and handed out flyers criticizing the school.  The Cyrs also frequently attended school board meetings.  School officials and employees testified in court that they felt threatened by the Cyrs because he shouted at meetings, clenched his fists, drove by teachers' homes, and honked when they passed the school.  The notice to trespass was issued in September, and then was withdrawn when the parties were working out a communication protocol.  That fell through when Mr. Cyr failed to meet with a school-hired psychologist and after Mr. Cyr allegedly posted statements online that compared teachers to snakes that are best dealt with by removing their heads.  A second notice to trespass was issued in March.  The school offered to allow Mr. Cyr to attend meetings telephonically, which he refused.  He filed suit against the district shortly thereafter.

The district court first rejected Cyr's argument that there is a First Amendment right of access to a  school board meeting, finding no such federal right in the U.S. Constitution. The court did, however, find that school board meetings are a limited public forum, and the ban did violate Cyr's right of free expression.  Specifically, the court held that physical participation in open school board meetings is a form of local governance, and to the extent Cyr was prevented from attending those meetings to communicate directly with elected officials, his First Amendment right of free expression was violated.  The court also held that Cyr's due process rights were violated when the school issued the  no-trespass orders without providing him a hearing or other process.

Since the court ruled in Cyr's favor on the right of free expression and due process claims, the parties have since settled the case, resulting in a $147,500 payment to the Cyrs.  

Post Authored by Julie Tappendorf

Tuesday, January 13, 2015

Town Bans Negative Social Media Speech

According to Bloomberg Businessweek, the town of South Pittsburg, Tennessee recently adopted a social media policy that bans people from posting negative comments on social media.  The policy applies to all city elected representatives, appointed board members, employees, volunteers, vendors, contractors and anyone associated with the town in an official capacity. The policy states that those persons cannot post anything negative on social networks about the city, its employees or associates. It also prohibits any posting that would be considered defamatory or libelous. 

The mayor has defended the policy by saying it is necessary to protect employees and their families from release of sensitive information such as employees' salaries or police officers' schedules.  One of the town commissioner's defends the policy as follows: 
The first thing everyone wants to say is, ‘I can’t post anything on Facebook. Well, you can. Just not [anything] that sheds a negative light on any person, entity, board, or things of that nature.
Those of you who regularly read this blog may be shaking your collective heads, wondering if this small town of 3,000 people have ever heard of the First Amendment.  I would certainly be cautious about advising a local government about the potential constitutional implications of enacting a ban on critical or negative postings on social media.

Post Authored by Julie Tappendorf

Monday, January 12, 2015

Illinois Antibullying Law in Effect

Illinois Public Act 98-0801 just went into effect on January 1, 2015 to expand the state's bullying prevention law to prohibit students from being bullied through online sources, such as Twitter or Facebook, using computers not on school property.  The previous law only applied to cyberbullying during the school day from school-owned computers.  

The new provision allows districts to take action "if the bullying causes a substantial disruption to the educational process or orderly operation of a school."  This new provision applies "only in cases in which a school administrator or teacher receives a report that bullying through this means has occurred and does not require a district or school to staff or monitor any nonschool-related activity, function, or program."

Many school districts will have to update their bullying policies to incorporate the new law.  

Friday, January 9, 2015

Illinois Park District Conference This Month!

At the end of the month, the IAPD/IPRA will host its annual "Soaring to New Heights Conference" in Chicago. The conference is scheduled from January 22-24, 2015, at the Hyatt Regency Hotel. Registration is still ongoing, so don't forget to sign up to attend this annual conference, which is jam-packed with great session for park district officials, employees, and consultants.  You can check out the conference website here.  

Ancel Glink will be out in full force again this year, presenting 16 legal sessions. Please stop by and say hi and stay for one of our sessions, summarized below:

Friday, January 23, 2015

8:00 - 9:15 a.m.

Legal/Legislative Part 1
Rob Bush  & Jason Anselment (Legal/Legislative Counsel, IAPD)

Time, Place & Manner - Regulating Non Traditional Speech
Julie Tappendorf

Primer on the Prevailing Wage
Steve Mahrt & Jim Rock

Terminating Employees
Keri-Lyn Krafthefer & Bob McCabe

9:30 - 10:45 a.m.

Executive Director Evaluations
Rob Bush, Paul LaFleur (Vice President, Huntley Park District), and Thom Palmer (Executive Director, Huntley Park District)

Clouds on the Horizon: Storm Water Management Issues for Park Districts
Derke Price & Brent Denzin

Policy Manuals: What you Need to Include
Keri-Lyn Krafthefer & Bob McCabe

3:30 - 4:45 p.m.

Protest and Marches in Parks: First Amendment Issues in the Use of Public Parks & Property
Ellen Emery & Liz Barton

The Down Low on Upskirts
Keri-Lyn Krafthefer, Derke Price & Adam Lasker

Dealing with E-Cigarettes, Guns & Social Media Issues
Julie Tappendorf & Dan Bolin

Saturday, January 24, 2015

10:15 - 11:30 a.m.

Primer on Procurement
Derke Price & Adam Simon

Affordable Care Act: The Current State of Law
Brent Denzin & Don Anderson

12:30 p.m. - 1:45 p.m.

Navigating Your Project Through the Zoning Process in Your Municipality
Derke Price & Scott Puma

Hot Topics in Employment Litigation - Ways to Reduce Your Exposure
Darcy Proctor & Lucy Bednarek

Help! I Need to Do A Tax Levy
Adam Simon & Jim Rock

2:00 p.m. - 3:15 p.m.

Board Wars Continued
Rob Bush & Scott Puma

Budget and Levies: The Fundamentals
Adam Simon & Jim Rock

Tax Assessment Appeals, Tax Objectives & Tax Exemptions
Keri-Lyn Krafthefer & Steve Mahrt

3:30 p.m. - 4:45 p.m.

Maneuvering Through the Disability Triangle: Workers Comp, ADA & FMLA
Rob Bush & Britt Isaly

Thursday, January 8, 2015

City Not Liable for Injuries from Cracked Sidewalk

The Illinois Supreme Court recently held in Bruns v. City of Centralia, 2014 IL 116998, that the City was not liable to a 79-year-old woman who stubbed her toe on a crack in the sidewalk outside of her eye clinic, causing her to fall and injure her arm, leg and knee. 

The plaintiff admitted that she “definitely” noticed the crack in the sidewalk every time she went to the eye clinic, but argued that the distraction exception to the open and obvious rule should apply because she was focused on the entrance to the eye clinic. According to the trial transcript, the sidewalk defect, caused by the roots of a 100-year old tree, developed over a period of several years, but the city refused to remove the sidewalk defect because of the 100-year-old tree’s historic significance. 

The trial court granted the City’s motion for summary judgment finding that the sidewalk defect was open and obvious and, therefore, the City was immune from liability because it had no duty to protect the plaintiff.  The court rejected plaintiff’s argument that the distraction exception applied because allowing the mere existence of a store entrance to fall within the distraction exception would go far beyond the scope of what exception’s intended purpose. 

On appeal, the Illinois Supreme Court agreed with the trial court, finding that the distraction exception to the open and obvious rule did not apply and that the City had no duty to protect plaintiff from the open and obvious sidewalk defect. The Court reasoned that the plaintiff failed to provide any reason that required her to divert her attention away from the open and obvious sidewalk defect; rather, the plaintiff simply had her attention focused elsewhere.

Post Authored by Christy Michaelson, Ancel Glink