Thursday, September 11, 2014

Village Violates FOIA By Not Searching All Records Systems

The PAC issued its 10th opinion for 2014 recently, finding a public body in violation of FOIA.  PAC Op. 14-010.  A news reporter filed a FOIA request with Sauk Village asking for records pertaining the village clerk's and a trustee's trip to Washington DC for the "Building One America Summit."  The Village responded that it had no responsive public records because the trip was not sponsored, approved, or funded by the Village and the trip did not "relate to official actions" nor did it involve the transaction of public business or affairs.  The reporter filed a complaint with the PAC, and the PAC concluded  that (1)  the records were public records and (2)  the Village failed to conduct a reasonable search, and ordered the Village to "search all recordkeeping systems - including the Village Clerk's records that are likely to contain responsive information concerning the summit and to provide those records" to the reporter.   The Village responded again that there were no responsive records.

Eight months later, the reporter filed another FOIA request for records relating to the summit.  The Village denied portions of the request on the basis that the request were unchanged or identical to the previous request and that the Village had no responsive records.  The reporter again appealed to the PAC.

Citing federal cases interpreting the federal FOIA, the PAC stated that a public body is required to conduct a "reasonable search tailored to the nature of a particular request." In this case, the PAC determined that the Village did not prove that it made any efforts to locate records responsive to the request.  

Based on this opinion and a previous opinion issued earlier this year, the PAC's position is that a public body must not only conduct a search for records, but it also has an obligation to prove to the PAC that it conducted a search "of all records systems likely to contain responsive records."  The PAC's opinion is supported solely by federal case citations, presumably because there are no Illinois court cases that have interpreted the Illinois FOIA to require such proof.  

There is no argument that a public body should conduct a reasonable search for records in response to a FOIA request.  The PAC is taking that a step further, however, by requiring a public body to prove that it conducted a search of all records systems.  In those situations where there simply are no responsive records, the burden will be on the public body to somehow prove that these records don't exist - in essence, prove a negative.  It's not clear how a public body can do that shy of providing access to its paper files and turning over passwords to its electronic records systems to let the PAC do its own search.  

Post Authored by Julie Tappendorf

Wednesday, September 10, 2014

Employee Investigative Reports Subject to FOIA

According to recent Public Access Counselor (PAC) and court opinions, reports of internal investigations of alleged public employee misconduct are subject to public disclosure pursuant to the Freedom of Information Act. In a binding opinion, (Public Access Opinion 13-011) the PAC addressed whether or not internal investigative reports concerning employee misconduct by the assistant police chief were exempt from disclosure under section 7(1)(n) of the Freedom of Information Act. Section 7(1)(n) exempts from disclosure records “relating to a public body’s adjudication of employee grievances or disciplinary cases; however this exemption shall not extend to the final outcome of cases in which discipline is imposed.”  The City of Bloomington argued that its investigative records were exempt as records relating to a public body’s adjudication of an employee’s disciplinary case. In this particular case, the assistant chief was involved in a traffic accident. The city asserted that an informal “adjudication” occurred when the chief of police reviewed the investigative reports and imposed a five day suspension. No formal grievance or formal adjudication was ever held.

In finding that these reports had to be released, the PAC emphasized the strong public interest in access to a public body’s internal investigation into a personnel matter. “Disclosure of a full and complete account of a public body's investigation of allegations of employee misconduct ensures that the investigation is consistent with the public body’s internal rules and procedures and that the discipline imposed, if any, is consistent with the public body’s findings.”

Given these decisions employers may want to consider engaging an attorney on behalf of the public body for employee misconduct investigations.  By placing an attorney in charge of an investigation the attorney client exemption found in section 7(1)(m) of the Freedom of Information Act may apply. Section 7(1)(m) exempts from disclosure:  “Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body….”

Monday, September 8, 2014

Public Body Cannot Require a Person to Disclose Address During Public Comment

Just last month, we reported on the 35 non-binding opinions issued by the Public Access Counselor interpreting and applying the public comment provision of the OMA (section 2.06(g)).  The PAC has now issued a binding opinion on the subject of public comment.  In the 9th binding opinion of 2014, the PAC said that a public body cannot require an individual to disclose his or her home address during public comment.  PAC Op. 14-009.

The Lemont Village Board held a meeting on April 14, 2014.  The Board had a practice of asking members of the public who wished to speak during public comment to provide their home address prior to addressing the Board.  Ms. Hughes initially declined to provider her address, but then provided it before speaking during public comment. She subsequently filed a complaint with the PAC office.

The PAC reviewed section 2.06(g) which provides individuals with an opportunity to address public officials under rules established and recorded by the public body.  The PAC acknowledged that although the statute does not specifically address the types of rules public bodies may adopt, public bodies can generally adopt reasonable "time, place, and manner" rules that are necessary to further a significant governmental interest, citing federal cases that did not interpret the OMA but involved First Amendment claims.  The PAC then reviewed Lemont's public comment rules that had been previously enacted by ordinance, and found that they did not expressly require members of the public to provide their home addresses before speaking.  The PAC rejected Lemont's "custom and practice" of requiring individuals to state their address, stating that all limitations on public comment must be detailed in the rules.

Although the opinion could have concluded here - that the Lemont Village Board cannot enforce a limitation that is not recorded in a written policy (the address disclosure) - the PAC went a step further and stated its opinion on the address disclosure requirement.  In the PAC's opinion, "section 2.06(g) does not support a requirement that a person must provide his or her complete home address prior to being allowed to make public comment."  Even if Lemont had included the address disclosure requirement in its established and recorded rules, "such a rule would impermissibly exceed the scope of the rulemaking contemplated by section 2.06(g)."   Implying that the issue is related to an individual's right to freedom of speech under the First Amendment (rather than a statutory right under the OMA), the PAC concluded as follows:
Requiring a member of the public to provide his or her complete home address prior to speaking may have a chilling effect on individuals who wish to speak at public meetings. Therefore, we conclude that requiring speakers to state their home addresses prior to addressing public bodies violates section 2.06(g) of OMA, even if such a rule is established and recorded by the public body.
The PAC's public comment opinions are beginning to look less like statutory interpretations and more like court decisions on questions of a constitutional nature - arguably, well outside the PAC's jurisdiction.  

Post Authored by Julie Tappendorf

Photographs are Not "Biometric Identifiers" Under FOIA

The PAC recently released its eight opinion for 2014, finding a public body in violation of FOIA for denying a reporter's request for photographs of a former employee.  You can read the opinion here: PAC Op. 14-008.

A reporter for filed a FOIA request with the Will County Sheriff's department for personnel records and photographs of a former deputy sheriff.  The county denied the request for photographs of the deputy sheriff on the basis that the photographs constitute "private information" under section 7(1)(b) of FOIA because they contain "biometric identifiers" that could be used to identify biological attributes.  The reporter appealed to the PAC.

The PAC first interpreted the term "biometric identifier," finding that it was limited to unique physical or behavioral characteristics that identify a person like a fingerprint or voice pattern.  The PAC determined that a photograph of the former deputy sheriff's head, face and shoulders was no different than a photograph on a drivers' license, and therefore did not focus on any unique physical attribute of the former employee.  The PAC also noted that the Biometric Information Privacy Act defines biometric identifier as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry" and expressly excludes "writing samples, written signatures [and] photographs."  Further, the PAC noted that the definition of "private information" in FOIA did not specifically list photographs.  

The PAC concluded that photographs are not "biometric identifiers" exempt from release under 7(1)(b), and the county must release the photographs to the reporter.

Post Authored by Julie Tappendorf

Friday, September 5, 2014

Firefighters Do Not Have the Right to Negotiate Staffing Levels

Minimum staffing has long been a hot button issue for Illinois Fire Unions and their members. Minimum manning requires that an employer have a certain number of firefighters on a shift.  If the number falls below the agreed upon minimum, then the employer is forced to pay overtime to ensure that the minimum number of firefighters are on duty.  With vacation days, sick days and Kelly days, the task of maintaining minimum manning is a daunting one for employers. 

The longstanding question regarding minimum staffing issues for firefighters has been whether or not municipalities are required to bargain over minimum staffing.  Fire Union’s have maintained since the holding in Village of Oak Law v. Illinois Labor Relations Board, State Panel, 964 N.E.2d 1132 (1st Dist. 2011) where the court found that the Illinois Public Labor Relations Act did not exclude staffing levels from interest arbitration and that minimum staffing is a mandatory subject of bargaining in all fire contracts.  Many employers have argued that the holding is specific to Oak Lawn and does not make minimum manning a mandatory subject of bargaining.  An Administrative Law Judge recently agreed with that position.

In a case involving the Village of Glenview and Glenview Professional Firefighters Local 4186, ALJ Heather Sidwell held that the Village of Oak Lawn does not make minimum staffing a mandatory subject of bargaining for firefighters, rather the issue is subject to a factual determination.  The tests for determining whether or not a particular topic is a mandatory subject of bargaining are set forth in Central City Education Association, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill.2d 496 (1992).  Applying these factors to the Glenview case, the ALJ held that minimum staffing was not a mandatory subject of bargaining.  This decision clearly strengthens an employer’s argument that minimum staffing is not a mandatory subject of bargaining for firefighters.  This battle is unlikely to end with the ALJ’s decision.  An appeal of this decision is all but certain given the IAFF’s commitment to encroaching upon managements’ right to set and maintain staffing levels.

This commitment is further illustrated by House Bill 5485 (“HB 5485”), the latest in a series of proposed legislation which would codify the bargaining requirement of staffing.  This bill required that interest arbitrators include minimum staffing in their decisions, thereby making it a mandatory subject of bargaining.  The bill stalled in the last legislation session.  However, it is probable that given the ALJ’s decision in the Glenview case discussed above, the IAFF will make efforts to revive HB 5485 in upcoming legislative sessions. Passage of this kind of legislation or a reversal in the Glenview case would drastically change the bargaining landscape for fire fighters, resulting in the loss of a very significant management right as well as an increased burden on taxpayers.

Thursday, September 4, 2014

Schools Must Comply with Local Zoning

Previously, we reported on a case involving a school district that had constructed bleachers without obtaining city zoning approvals. The neighboring property owners sued the school district, which brought the city into the case. The district defended its actions by claiming it was exempt from local zoning.  The trial court disagreed, ruling that school district's cannot ignore local zoning regulations.   

That ruling was appealed to the Illinois appellate court, which just issued a ruling yesterday. In Gurba v. Community HS Dist. 155, the appellate court upheld the trial court's ruling that the school district was required to obtain zoning approvals prior to installing the bleachers.

The appellate court rejected the school district's argument that the city was preempted from applying its zoning regulations on school property because the state constitution declares public education to be a matter of statewide concern.  The court first noted that the city was a home-rule municipality with the power to enact and enforce zoning ordinances.  While a home rule unit cannot enact ordinances that infringe upon public education, the court concluded that land-use regulations have no inherent impact on the substance of public education.  Moreover, the court determined that the Illinois School Code expressly authorizes school districts to seek zoning relief for property it holds. That authorization would have no meaning if a school district were exempt from local zoning.

This is a good decision for municipalities that may have had to defend their local ordinances against claims by some school districts that they are exempt from zoning.  This decision does not change the fact that school districts have their own building code (contained in the Illinois School Code) but should clear up any misunderstanding about application of zoning regulations to school buildings and facilities.

Post Authored by Julie Tappendorf

Wednesday, September 3, 2014

City Hall 10 Commandments Display Violates Establishment Clause

From RLUIPA Defense:  New Mexico Federal Court Rules Ten Commandments Display Outside City Hall Violates Establishment Clause

Our friends at the RLUIPA Defense blog reported recently on a case out of New Mexico where a district court held that the display of a five-foot, granite Ten Commandments monument outside City Hall violated the Establishment Clause “because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  Felix v. City of Bloomfield.  

In 2007, the Bloomfield City Council approved adopted a resolution establishing a forum policy for the placement of historical monuments on the City’s lawn.  In 2011, a former City Council member constructed a five-foot tall granite monument of the Ten Commandments on the lawn. The monument contains disclaimers that state “any message hereon is of the donors and not the City of Bloomfield” and that the information on the monument does not “necessarily reflect the opinions of the City.”  

Plaintiffs filed a lawsuit, alleging that the Ten Commandments monument violates the Establishment Clause of the First Amendment to the U.S. Constitution.  The City argued it was a public forum and the monuments were just one of many displayed at City Hall.  The plaintiffs argued that the monuments were "government speech."  The District Court agreed with the plaintiffs because (a) the monument is permanent within the practical and legal sense, since it has been authorized by the City for 10 years and can be renewed, and (b) the disclaimers on the monument do not overshadow the City’s decision to allow the monument on public property.  The District Court rejected the City’s contention that the City’s forum policy shows that public property is open to all private parties to express different historical viewpoints, finding that for almost four years, there was no obvious sign that the City had opened the City Hall Lawn as a public forum. Instead, the City has merely provided ‘selective access’ to the lawn, and the court determined that the City violated the Establishment Clause "because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.” 

The court noted that was “a very close case,” and the result could have been different with a slight change of the facts.  “For example, had the Ten Commandments monument been established last in the series of monuments, after placement of the Declaration of Independence, Gettysburg Address, and Bill of Rights monuments, the First Amendment may not have been offended.  Had the Ten Commandments monument been arranged at the rear of the north lawn near the municipal building complex, with the other three monuments (consisting of six tablets) in front of it, the Ten Commandments monument may have passed muster.  Had the Ten Commandments monument been installed without a dedication event or with a ceremony absent religious overtones, the ultimate conclusion may have differed. Had the City of Bloomfield adopted the amended policy permitting monuments first, with language clearly allowing only temporary residence of a monument, the result might have changed.”

Tuesday, September 2, 2014

New Law Expands Park District Borrowing Authority

Under a new law (P.A. 098-0906), Illinois park districts may now accept short term loans directly from banks, savings and loan associations and credit unions.  The Act grants authority for park districts to borrow money from those financial institutions for any corporate purpose through the issuance of a promissory note or similar debt instrument.  The loan must be repaid within two (2) years from the time the money is borrowed.  The loan must be authorized by an ordinance adopted by the board and signed by the president and secretary.  Repayment of the loan is valid whether or not the loan payments were included in the Park district’s appropriation ordinance. Park district debt that does not meet the criteria established in this Act must still be issued through one of the other debt instruments authorized by the Park District Code such as a bond, debt certificate, or installment contract.

This Act took effect upon passage (August 15, 2014) and gives park districts the flexibility to work directly with local financial institutions for short term loans, while potentially avoiding some of the cost and time involved in the issuance of bonds, debt certificates, and installment contracts.  

Post Authored by Jim Rock, Ancel Glink

Monday, September 1, 2014

Upcoming Stormwater Workshop

Brent Denzin of Ancel Glink will be presenting at an upcoming workshop on stormwater management and natural resources protection, detailed below:

2014 Beyond Basics Workshop
September 9, 2014, 1 – 3:30 p.m., Morton Arboretum
Better Ordinances for Sustainable Stormwater Management, Natural Resources Protection, and More Vital Communities

For more information, here is a link to the conference:

The workshop will be presented by a team with expertise in engineering, planning, community development, and municipal law. It will address common ordinance implementation issues and opportunities, such as: 
  • Eliminating barriers in existing subdivision and zoning codes
  • Providing incentives, such as detention credits, for green infrastructure innovation
  • Emphasizing cost-effectiveness of new approaches
  • Long-term maintenance considerations
  • Being proactive in anticipating new state/federal regulations
  • Encouraging green infrastructure to also enhance community character and quality of life
Workshop participants will receive a comprehensive ordinance checklist that was developed initially by Geosyntec Consultants for several watershed planning projects. More recently, in cooperation with the Chicago Metropolitan Agency for Planning, the checklist has been expanded with an extensive list of regional and national references. 

Friday, August 29, 2014

Rules Would Ban Smoking in Outdoor Patios and Beer Gardens

On August 15, 2014 the Illinois Department of Public Health published proposed regulations implementing the Smoke Free Illinois Act. 410 ILCS 82/1 et seq. The primary focus of the proposed regulations is to restrict smoking in outdoor areas accessory to restaurants and bars. 

Specifically, Section 949.30 provides as follows:
Smoking is prohibited in a restaurant, bar and any area where food, beverages or both are prepared or served by employees, including outdoor areas such as patios, beer gardens, decks or rooftops or concession areas....Smoking may be permitted in a self-service outdoor area where employees do not prepare or serve food or beverages and are not required to enter, leave or pass through during the course of employment. 

The self-service outdoor area must be “at least 15 feet away from entrances, exits, windows or ventilation and shall be designated as a ‘self-service outdoor area where smoking is permitted’ using clear and conspicuous signage.” The proposed regulations also prohibit smoking within 15 feet of, and the drifting of smoke through, entrances, exits, windows that open and ventilation systems that serve enclosed areas where smoking is prohibited under the Act.

Those in opposition to the proposed rules point argue that the Smoke Free Illinois Act was meant to be an indoor smoking ban and that these regulations go beyond that.  Also, some business owners argue they will have to modify their existing outdoor areas to meet the new requirements. Conversely, supporters of the regulations point to the Act’s ban on smoking in places of employment to justify any extension of the ban to outdoor area where employees serve. 

The proposed regulations can be found here

Post Authored by Caitlyn Sharrow & Julie Tappendorf, Ancel Glink

Thursday, August 28, 2014

New Posting Requirement for Elected Officials' Emails

The General Assembly recently amended the Local Records Act to require all units of local government (except Chicago) and school districts to post on their websites a single, uniform email address that members of the public can use to electronically communicate with their elected officials, unless the officials have individual email addresses for that purpose.  P.A. 98-0930.  The posting requirement does not apply to a local government’s social media sites such as Facebook or Twitter, just to the public body’s website. The email address must be "hyperlinked" and easily accessed from the public body's home page.

It is not entirely clear what the law means by the phrase “unless such officials have an individual email address for that purpose.”  Does that mean that a public body is excused from the posting entirely if the elected officials have individual email addresses? Or does it mean that the public body must post links to each of the officials’ individual email addresses on its website if each official has an email address?  

When initially introduced, the law required posting of each individual member's email address; however, that was changed to the current requirement of a single contact email. Because of the change in the language prior to approval, it would seem reasonable for local governments to post a single contact email address.  If a public body chooses that approach, someone should be assigned to monitor the uniform, single email address and make sure the communications are forwarded to the respective elected officials.

Note that the law has a home-rule preemption, so home rule municipalities are not exempt from the new posting requirement.

The new law is effective January 1, 2015, and local governments have 90 days after the effective date to comply with the new posting requirement.

Post Authored by Julie Tappendorf

Wednesday, August 27, 2014

Amendment to Bond Act Affects Local Government Contracts

On August 22, 2014, Governor Quinn signed HB 4769, amending the Public Construction Bond Act. P.A. 98-1018. That Act requires public bodies, including municipalities and other local governments to require contractors to provide security (i.e., letter of credit or surety bond) for any public works project costing over $50,000.  The amendment added the following language to the Act establishing minimum rating standards for surety companies that provide bonds for public projects: 
The surety on the bond shall be a company that is licensed by the Department of Insurance authorizing it to execute surety bonds and the company shall have a financial strength rating of at least A- as rated by A.M. Best Company, Inc., Moody’s Investors Service, Standard & Poor’s Corporation, or a similar rating agency.  
Local governments should make sure that the surety companies that provide bonds to secure public works projects over $50,000 meet these new rating requirements.  It would also be good practice for local governments to include language in any RFP, bid documents, and construction contracts putting contractors on notice of this new legal requirement.

Post Authored by Julie Tappendorf