Thursday, July 2, 2015

Court Upholds Police Officer Termination for Non-Residency

A Maywood ordinance requires Village employees, including police officers to reside in the Village or within 15 miles of the Village's corporate boundaries. The Village filed disciplinary charges against a police officer when it learned that the officer lived in St. Charles, about 30 miles from the Village. At his disciplinary hearing, the officer testified that he had multiple residences, including a condominium in Chicago (within the 15 mile requirement) and the St. Charles home. He testified that the condominium was owned by his brother, and he paid $450 each month to rent a room and closet. However, he admitted that had no lease, rental agreement, or cancelled checks to prove that he actually resided in the condominium. He also admitted that his wife and children live in the St. Charles home, and that the family is intact. At the end of the hearing, the board voted to terminate his employment, and he appealed to the circuit court.

The circuit court upheld the board's findings that the officer violated the residency requirement but vacated the board's termination, and remanded the case back to the board to impose a lesser penalty. On appeal, the appellate court reviewed the Village's residency ordinance and analyzed various cases establishing standards for "residency."

First, the appellate court determined that the board was correct in determining that the officer violated the Village's residency requirement. The evidence produced during the hearing established that his actual residence was in St. Charles, and not in Chicago as the officer argued.

Second, the appellate court rejected the circuit court's decision to overturn the officer's termination. The court found that the officer had engaged in an ongoing violation of the residency ordinance for two years, and had been untruthful to the Village regarding his residency. In short, the court held that the board's decision to terminate was not unreasonable.  Wheeler v. Board of Fire and Police Commissioners of Maywood, 2015 IL App (1st) 140453-U

Wednesday, July 1, 2015

Zoo Worker Fired for Social Media Post About the Public


Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media.

So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following:
  1. The former employee was not criticizing either fellow workers or members of management.  The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace.
  2. The former employee did not make the comments in the context of protected concerted activity. This factual pattern differs markedly from the Cooper Tire case on which we reported last week where picketers yelled racially charged insults at temporary replacement workers. In the Cooper Tire case, the NLRB found the offensive language to be protected as part of the concerted action of picketing and that the language, while clearly offensive, was not threatening. The Brookfield Zoo employee just made a racially offensive remark.
  3. The former Zoo employee not only identified herself as an employee of the Zoo by wearing her uniform in the picture accompanying the remark, but tagged the location of her remark as the Brookfield Zoo. Had she made her remark without reference to her employment, she would probably still be employed there. As it was, her selfie in Zoo uniform with the comment clearly associated the remark to her employment and the location tag made it appear that she made the remark while at work. 
  4. A strong Zoo policy prohibiting harassment and discrimination, including on social media, exists. The employer could find both that the ex-employee knew of the prohibited behavior and violated the policy. 
While employers may rightfully feel a bit gun-shy about taking adverse action against employees who make inappropriate or downright offensive statements in or about their workplace, offensive or discriminatory comments about customers are rarely protected by law. A clear policy prohibiting such behavior by employees as it relates to their employment, will generally allow the employer to take appropriate action.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Tuesday, June 30, 2015

Case Against Mayor for Political Firings Continues

After Kevin Smith became Mayor of Anderson, Indiana, he replaced many members of the City staff with his political supporters or others he deemed trustworthy.  11 of the fired workers filed a civil rights lawsuit against the Mayor and the City of Anderson claiming that the discharges violated the First Amendment. The district court held that the Mayor had qualified immunity with respect to 9 of the 11 claims, and allowed the other two claims to continue. Both the City and Mayor appealed to the 7th Circuit. 

The 7th Circuit limited its appeal to determining whether the district court was correct in denying the Mayor qualified immunity with respect to the two remaining plaintiffs.  These two plaintiffs included Allman, the former office manager for the utility department and Baugher, a customer service supervisor in the utility department.  

With respect to Allman, the court held that there were disputed facts as to whether Allman was actually a manager or a cashier. A week before Smith was sworn in as Mayor, she exercised her seniority to move to an open cashier position int he utility department. Upon taking office, Mayor Smith promoted her back to manager, and then fired her.  Because it was not clear whether she held a position that might be exempt from First Amendment protections (office manager) or not (cashier), the issue was remanded to the district court.

As to Baugher, the 7th Circuit considered the Supreme Court's rulings in Elrod and Branti, which established the standards to apply in determining whether a particular employee was exempt from First Amendment protections for termination on political grounds. These include the supervisory nature of the position, whether the position has any significant discretion over matters of high political value, and whether the position has any policy-making authority. In this case, the 7th Circuit held that a customer-service supervisor is not a position that entails political discretion.  As a result, the district court did not err in denying qualified immunity to the Mayor for terminating Baugher, and Baugher's case against the Mayor will continue. Allman v. Smith (7th Cir. June 24, 2015)

Post Authored by Julie Tappendorf

Monday, June 29, 2015

Don't Forget About New Audit Disclosure Requirements!

It's audit time for local governments, and we wanted to remind you of the new statutory disclosure obligations for municipalities and counties. Last year, we posted about P.A. 98-0738, which amended the Illinois Municipal Code and Counties Code to establish certain disclosure requirements for municipal and county audits. 

The new law (which became effective January 1, 2015) requires the auditor conducting the municipal or county audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting. Municipalities and counties with websites must post this information on their websites. 

Post Authored by Julie Tappendorf

Friday, June 26, 2015

Hotel Records Ordinance Unconstitutional

The U.S. Supreme Court has been active this session in cases involving local governments. Unfortunately, the decisions have not been very favorable to local governments, including today's case striking down a city's hotel records ordinance.  City of Los Angeles v. Patel, et al.

The City of Los Angeles adopted an ordinance requiring hotel operators to record and keep information about their guests, including name, address, vehicle information, date and time of arrival, room number, rate, and method of payment. In addition, any guest without a reservation or who pays for their room in cash must also present a photo ID at check-in. The ordinance requires hotel operators to make this information available to LA police upon request. Violation of the ordinance is punishable by 6 months in jail and a $1,000 fine. 

A group of hotel operators sued the City challenging the constitutionality of the police inspection provision of the ordinance, claiming that a police officer's non-consensual inspection of hotel records was an unlawful "search" under the Fourth Amendment to the U.S. Constitution. The Ninth Circuit Court of Appeals agreed, and struck down the ordinance as unconstitutional. This week, the U.S. Supreme Court affirmed, finding the ordinance facially unconstitutional because it penalizes hotel operators for declining to turn over their records without providing any review or appeal opportunity. The Court was particularly concerned with a police officer's ability to arrest a hotel owner on the spot if he or she refuses to give the officer access.

Post Authored by Julie Tappendorf

Thursday, June 25, 2015

PAC Issues 4th Opinion of 2015

It's been a slow year in the PAC office, with the issuance of only the 4th binding opinion of 2015 just coming out. In PAC Op. 15-004, the PAC found a public body in violation of FOIA for denying a request for a copy of an agreement that settled a lawsuit between the City and an employee. The public body had denied the request, citing the personal privacy exemption and that the non-disclosure provisions in the settlement agreement prohibited release.

The PAC rejected that argument on three grounds. First, the PAC found that section 2.20 of FOIA mandated that all settlement agreements are public records. Second, the PAC noted that the non-disclosure provision in the agreement only prohibited disclosure by the former employee, not the City. Third, the PAC stated that the personal privacy exemption does not apply to information that "bears on the public duties of public employees." The PAC rejected the employee's concerns that release of this information would lead to an "uncomfortable work environment" with her co-workers, finding that release of the agreement outweighed any expectation of privacy she might have in keeping the terms of her settlement with the City private.

Post Authored by Julie Tappendorf

Wednesday, June 24, 2015

Raisin Set-Aside Program is an Unconstitutional Taking

The U.S. Supreme Court issued one of its final cases this term, ruling against the government in a Fifth Amendment takings case. Horne v. Department of Agriculture, No. 14-275 (June 22, 2015). This case involved a challenge to the federal government’s raisin set-aside program that requires raisin growers to set aside a particular percentage of their crops “for the account of” the government. The purpose of the set-aside program is to stabilize raisin prices. The raisin growers had challenged the program, arguing that it constituted an illegal taking without just compensation under the Fifth Amendment of the U.S. Constitution. The Supreme Court agreed, finding that the set-aside was a “physical appropriation” of the growers’ property that constitutes a taking. As a result, the government must pay the growers just compensation for the taking. 

“The government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home." Based on the holding in Horne, the government’s duty to pay just compensation under the Fifth Amendment applies to personal property as well as real property.

Justice Sonia Sotomayor dissented, arguing that since the raisin growers retained a right to some payment for disposition of the set-aside raisins, there was no taking.

Post Authored by Julie Tappendorf

Tuesday, June 23, 2015

Anonymous Poster's Identity Must be Released in Defamation Case

Last week, the Illinois Supreme Court decided a case involving anonymous internet posters. The case involved certain online comments to a newspaper article about Bill Hadley, a candidate for county board office. Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000. Specifically, an anonymous poster called "Fuboy" had posted the following comment (among others) to the online article:
Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire [a local grade school] from his front door. 
Hadley filed a defamation lawsuit against the newspaper. As part of the litigation, the newspaper provided Hadley with the IP address acquired from Comcast from which  "Fuboy's" comments originated. Hadley then sought a court order to require Comcast to release the identity of the subscriber of the IP address. Counsel for the subscriber filed a motion to quash the subpoena, and while the motion was pending, Hadley filed an amended complaint naming "Subscriber Doe a/k/a/ Fuboy" as a defendant to the defamation action. Both the circuit court and appellate court ordered Comcast to turn over the subscriber's identity, and the subscriber appealed to the Illinois Supreme Court.

The Illinois Supreme Court affirmed the lower courts' decisions that the subscriber identity should be released to Hadley. Rule 224 provides that a plaintiff is entitled to ascertain the identity of the individual who may be responsible for damages against the plaintiff. The rule has been applied in defamation cases where the plaintiff can show that discovery of the individual's identity is "necessary" and where the plaintiff has presented sufficient allegations of a defamation claim to overcome a motion to dismiss. 

To state a cause of action for defamation, a plaintiff must show facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. Here, the Supreme Court held that Fuboy's statements impute the commission of a crime to Hadley by referring to the Sandusky sexual abuse scandal, which at the time the comment was posted, had dominated the news for weeks. That statement, the Court noted, could reasonably be interpreted to mean that "Hadley was a pedophile or had engaged in sexual acts with children." 

The Court rejected Fuboy's argument that the comment could be susceptible to an innocent interpretation. The Court also rejected Fuboy's argument that the statement was not a factual assertion, but simply opinion. First, the comment had a precise and readily understood meaning, could be readily verified, and conveyed some personal familiarity from Fuboy that suggested it had factual content. 

As a result, the Court agreed that Comcast must turn over its subscriber's identity to Hadley, in furtherance of his defamation case.

Lesson?  Nothing is ever truly anonymous on the Internet.

Post Authored by Julie Tappendorf

Monday, June 22, 2015

Court Dismisses Due Process and Ethics Claims Involving Zoning Decision

From our friends at the Law of the Land blog:  7th Circuit Court of Appeals Upholds Dismissal of Due Process and Ethics Claims Arising Over Approvals for Retail Center

After property across the street from a residential homeowner was granted a conditional use permit to build a retail center, the homeowner sued, alleging various due process, equal protection, and First Amendment claims against the Village. Specifically, the homeowner alleged that the Village ignored local procedures in conducting the public hearings on the developers' zoning application, and that Village officials and developers had engaged in insider dealings. The lawsuit also claimed that some of the Village officials were represented by the same law firm that employed the Village attorney, creating a conflict of interest. Finally, the complaint alleged that the zoning decision violated his equal protection rights by rezoning the property across the street from him out of spite. The Village sought to dismiss the due process and First Amendment claims. The district court dismissed his case, and he appealed to the Seventh Circuit.  

The Seventh Circuit upheld the dismissal of his case, finding that his due process claims were not ripe under the U.S. Supreme Court's decision in Williamson County for failure to exhaust his administrative remedies (i.e., file an appeal with the zoning board of appeals, and then bring his case to the state courts rather than the federal courts). The Seventh Circuit also found a rational basis for the Village's zoning decisions. 

You can read more about the case on the Law of the Land blog.  The case can be found at Jackson v Village of Western Springs, 2015 WL 2262703 (7th Cir. 5/15/2015).

Post Authored by Julie Tappendorf

Friday, June 19, 2015

Supreme Court's Sign Case May Require Sign Code Amendments

As we noted yesterday, the Supreme Court finally issued its ruling in the sign case involving a local church's challenge to the Town of Gilbert, Arizona's sign regulations. Reed v. Town of Gilbert, Arizona (USSCT, June 18, 2015).  In a nutshell, the Supreme Court held that the Town's sign code was a content-based regulation that could not survive the strict scrutiny required by the First Amendment. This case is certain to have an impact on how local governments regulate signage within their community, and is likely to require most communities to review and revise their current sign regulations to bring them into conformity with the Supreme Court's decision.

The facts are fairly straightforward. The Good News Community Church wanted to advertise the time and location of their Sunday services. They did not have a regular site for services, so held them at various locations in or near the Town of Gilbert. To inform the public about the services, they posted 15-20 temporary signs around the Town of Gilbert that included the name of the church, and the time and location of the upcoming service. After the church was cited by the Town for violating the Town's sign code, the church sued the Town, arguing that the sign code violated their freedom of speech rights under the First Amendment. The Ninth Circuit Court of Appeals ruled in favor of the Town and upheld the sign code as a content-neutral regulation. The U.S. Supreme Court disagreed, however, finding the sign regulations content-based.

According to the Supreme Court, a government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Thus, a court must consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Acording to the Court, the Town's sign code is content based on its face because the Town treats temporary directional signs, political signs, and ideological signs (all temporary signage) differently, depending "entirely on the communicative content of the sign."  For example, ideological signs (signs communicating noncommercial messages that are not directional political, garage sale, or construction signs) are treated most favorably of the three categories. Political signs, on the other hand, are treated somewhat less favorably (stricter time limits and size restrictions) than ideological signs. And directional signs relating to events are treated even less favorably, with much more restrictive size and time restrictions. In the Court's view, singling out a specific subject matter for differential treatment, as evidenced by the way the Town treated these three categories of signs, is the perfect example of content-based discrimination.

Because the sign code imposes content-based restrictions on speech, they could only be upheld if they can survive strict scrutiny. That means that the Town had to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." The Town's two arguments in favor of a governmental interest (aesthetics and traffic safety) were not, according to the Court, a sufficiently compelling reason to treat directional event signs less favorably than other temporary signs. For example, there was no evidence that the type of directional signs placed by the church posed any greater threat to traffic safety than ideological or political signs. There was also no evidence that limiting directional signs but allowing larger ideological signs for a longer period of time would protect the aesthetics of the Town.

The opinion raises a number of questions, including what a municipality can legally do to regulate signs.  The majority opinion does not provide much guidance, except to say that its decision "will not prevent governments from enacting effective sign laws." The Court stated that the Town has a variety of "content-neutral" options available to protect aesthetics and traffic safety, such as regulating the size, building materials, lighting, and other aspects of signs that have nothing to do with the sign's message. The Court also noted that the Town could completely ban signs from public property, so long as it is done in an evenhanded manner. What the Town could not do, however, was treat similar signs differently based on the message on the sign.

Justice Alito wrote a concurring opinion, joined by Justices Kennedy and Sotomayor, attempting to provide guidance to local governments as to what type of sign regulations would not be content-based, including the size, lighting, electronic vs. static, location, total number of signs along a roadway, and time limits for signs advertising a one-time event. However, the Town of Gilbert's temporary signs included many of these same regulations, but those were struck down because they differed between categories. Does that mean that a municipality can limit the size of signs, but that limitation must apply to all signs, regardless of type or function?

Justice Kagan also wrote a concurring opinion, joined by Justices Ginsburg and Breyer, acknowledging that many sign ordinances are now in jeopardy due to the Court's decision. Specifically, Justice Kagan noted that a municipality may have to repeal sign exemptions for warning, caution, and similar signs to ensure the code does not discriminate based on the message of the sign. Although Justice Kagan agreed with the majority that the Town of Gilbert's code could not survive strict scrutiny, she cautioned that the broad scope of the majority's ruling will result in striking down other entirely reasonable laws because they simply cannot survive a strict scrutiny review.

So, what does this mean for municipal sign codes? Many, if not most municipalities regulate categories of signs in a way that would subject them to the same content-based analysis used by the Supreme Court  to strike down Gilbert's sign code. Political signs are a very good example, particularly in Illinois, where state law prohibits municipalities from restricting the number and time limits for political signs installed on residential property. Does that mean that a municipality must eliminate restrictions on time limits and number of signs for all temporary signs or risk a challenge that it is treating other temporary signs less favorably than political signs?  Maybe.

There are plenty of other questions that municipalities will have to answer following this decision, which will certainly impact the way sign codes treat categories of signage with similar characteristics (like temporary signs). It is very likely that most municipalities will need to modify their codes, or risk a challenge that their own codes are unconstitutional.

Post Authored by Julie Tappendorf




Thursday, June 18, 2015

UPDATED POST - Reed v. Town of Gilbert

The link to the opinion in the previous blog post was incorrect.  This post has the correct link. 

Many of you have been waiting for the U.S. Supreme Court to issue its ruling in the Town of Gilbert case involving a local church's challenge to the constitutionality of the Town's sign code. The church (which had been cited under the Town's sign code for placing certain temporary directional signs throughout the town) claimed that the Town's sign code was a content-based regulation that violated the First Amendment. The Ninth Circuit Court of Appeals had ruled in favor of the Town, finding the regulation content-neutral. The church appealed. This morning, the Supreme Court reversed the Ninth Circuit, and held that the challenged sign provisions were content-based regulations that could not survive strict scrutiny as required by the First Amendment. Reed v. Town of Gilbert, Arizona (USSCT, June 18, 2015).

We will post a more detailed analysis of this case tomorrow, but I wanted to get the word out to my fellow land-use nerds who follow these cases.

Post Authored by Julie Tappendorf  

Officer Not Protected by First Amendment for Actions at Anti-Abortion Demonstration

After a police officer was discharged for conduct during demonstrations at an abortion clinic, he sued the city claiming violation of his civil rights.  Specifically, he claimed that the city retaliated against him for his protected speech, among other allegations.  The Seventh Circuit recently ruled against him on his retaliation claim in Lalowski v. City of Des Plaines.

In 2006, a group of demonstrators gathered outside of an abortion clinic. The officer approached the demonstrators and told them he would arrest anyone who impeded traffic or stopped anyone from entering the clinic.  There was some dispute as to what happened next - one of the demonstrators testified that the officer used profanity and threats against the demonstrators, and was generally intimidating and "out of control."  The officer acknowledged that the confrontation was adversarial, but denied he threatened anyone. 

After the officer went off-duty, he returned to the abortion clinic in plain clothes and his personal car. He approached one of the demonstrators who he had spoken with earlier in the day and called her a "sinner of gluttony" and various other names.  He approached other demonstrators and accused them of using intimidation tactics like the Taliban, and called many of them names.  He testified that he was simply trying to get them to take down their signs.  Complaints about the officer's conduct were filed with the police department. Charges were filed, and he was eventually terminated for conduct unbecoming a police officer, and violation a variety of other police rules and regulations. 

The officer alleges that he was terminated for exercising his First Amendment speech rights. The court disagreed, however, finding that none of the officer's speech rights were protected under the First Amendment.  Most of his statements at the demonstration did not address matters of public concern.  Even the few statements that did touch on matters of public concern (his expression of disapproval of the use of aborted-fetus signs) was outweighed by the City's interest in maintaining discipline and harmony within the department, and fostering a relationship of respect and trust with the public. The court also considered the manner in which he expressed his speech - i.e., by ridiculing the protesters, as well as his history of disciplinary actions for similar interactions with the public. In sum, the court held that the City's interest in running an efficient and effective police department outweighed any interest the officer had in expressing his opinion to the demonstrators.

Disclosure:  Ancel Glink represented the City in this case.

Post Authored by Julie Tappendorf