Friday, February 27, 2015

Local Government Taxes in Jeopardy

You'd have to be living under a rock in Illinois not to have heard about the Governor's proposal to cut the local government share of the state income taxes by 50%.  The Illinois Municipal League and various regional and local councils of government and organizations have been active in getting the word out to local governments about the Governor's proposal, which he made in his recent state budget address.  

You can find out more about the proposal and how you can get involved on the IML website (found here).  The site is open and available to anyone who wants to submit an email or mail a letter in support of LGDF.  According to the IML, once the process is completed by the user, an email will be automatically sent to the Governor and each state senator and representative in that area, with a copy also going to the four legislative leaders and the sender.  A hard copy addressed to the Governor can also be printed for postal mailing.  You can also click this link to go straight to the email site.  

Post Authored by Julie Tappendorf

Thursday, February 26, 2015

Service of Election Appeal Must be By Certified or Registered Mail

Another election case - it's a busy time for the courts!

The Illinois Appellate Court for the First District recently ruled that strict compliance with the service requirements of the Election Code relating to judicial review of an electoral board decision is mandatory.  In Bey v. Brown, 2015 IL App (1st) 150263, the Chicago Electoral Board issued a decision removing an alderman candidate from the ballot based on finding an "appearance of fraud" in the witnessing of the signing of the nominating petitions.  The candidate filed a petition for judicial review with the circuit court within the statutorily required 5 day period.  The objector filed a motion to dismiss, alleging that the candidate did not properly serve the parties by registered or certified mail as required by 10-10.1 of the Election Code. The circuit court agreed, and dismissed the case for lack of jurisdiction.

On appeal, the appellate court reviewed section 10-10.1, which requires the party seeking judicial review to serve a copy of the petition on the electoral board and the parties "by registered or certified mail within 5 days after service of the decision by the electoral board..."  In this case, the evidence showed that the candidate served the petition on the parties within the 5 day period by regular mail and hand delivery, but not by certified or registered mail.  The only evidence of a certified mailing was on January 22, 2015 - more than a week after the circuit court dismissed the case for lack of jurisdiction.  As the appellate court noted in its ruling, sending the petition by certified mail on January 22 "is like closing the barn door when the horse is already a mile down the road.  It is just too late."  Because the candidate failed to strictly comply with the service requirements, the candidate's petition for judicial review of his removal from the ballot was upheld.

Some may remember that a couple of months ago we reported on an Illinois Supreme Court case that interpreted the judicial review service requirement.  In Bettis v. Marsaglia, the Illinois Supreme Court addressed the issue of whether section 10-10.1 requires  a petitioner to serve each individual member on the electoral board, as well as the entity itself?  The Supreme Court said no, reversing the Fourth District and adopting the Third and Fifth District's position that service on the individual members is sufficient to provide jurisdiction to the courts to hear the appeal of an electoral board decision.  The Court did not address the requirement that service must be by registered or certified mail, however.

Post Authored by Julie Tappendorf

Wednesday, February 25, 2015

New Bill Would Require Internet Filtering in Libraries

Last week, Rep. Peter Breen (R-48th District, Lombard) introduced House Bill 2689 to create the "Internet Screening in Public Libraries Act."  If enacted, the legislation would require every public library to have a "technology protection measure" to prevent the display on a public computer of any visual depictions that are obscene, child pornography, or harmful to minors.  Although the bill would allow a public library to disable the technology protection measure for an adult engaged in legitimate research, "legitimate research" is not defined.  
The Illinois Library Association (ILA) has taken the position that internet filtering is a local decision, and not one that should be mandated by the state legislature.  You can read more about the ILA's position on this bill on its website here.
Post Authored by Julie Tappendorf

Tuesday, February 24, 2015

Fire Protection District Must Pay Alarm Companies $2.1M in Attorneys Fees

For nearly five years, a number of alarm companies have been fighting the Lisle-Woodridge Fire Protection District in court challenging the district's requirement that all businesses and residents within the boundaries of the district obtain alarm-monitoring services only from the district.  In 2001, a federal district court ruled that the fire protection district exceeded its authority under the Fire Protection District Act when it adopted an ordinance in 2009 requiring exclusive service contracts with the district's provider and declaring existing service contracts with other alarm companies null and void. 

The 2009 ordinance was later replaced in 2012 with an ordinance that allowed property owners to contract with private companies, but required the private companies to transmit the signals to the fire district's station rather than their own facilities.  That ordinance was also challenged in court by alarm companies who argued that requiring transmission to the district's facilities would require replacement of incompatible equipment. That ordinance was also struck down by the district court, and the alarm companies petitioned the court for an award of its attorneys' fees.  

Last week, Judge Shadur of the Northern District of Illinois awarded the alarm companies more than $2.1 million in attorneys' fees as prevailing parties under the Civil Rights Act and under the Clayton Antitrust Act (a reduction from the more than $2.3 million requested by the plaintiffs).  You can read the opinion here:  ADT et al. v. Lisle-Woodridge Fire Protection District.  

Post Authored by Julie Tappendorf

New Bill Introduced to Abolish “Open and Obvious” Absolute Defense

On February 5, 2015, House Bill 1441 was introduced in the Illinois General Assembly.  This bill would amend the Premises Liability Act, 740 ILCS 130/2, as follows: 
The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. 
The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them. 
Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-116 of the Code of Civil Procedure and shall not be considered with respect to any other issue of law or fact, including duty.
Local governments often rely on the “open and obvious doctrine” as a complete defense to premises liability cases.  The doctrine is an exception to the general duty of care owed by a landowner that provides that a landowner is not liable for harm caused by a condition on the land whose danger is known or obvious. A condition is open and obvious where a reasonable person in the plaintiff’s position exercising ordinary perception, intelligence, and judgment would recognize both the condition and the risk involved.  This analysis depends on the objective knowledge of a reasonable person confronted with the same condition and not on plaintiff’s subjective knowledge.

The affirmative defense affects “duty” in two ways.  First, where a condition is deemed open and obvious, the likelihood of injury is generally considered slight because it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks.  Second, injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable as people will generally appreciate the risks associated with such conditions and exercise care for their own safety.

House Bill 1441, if passed, could expose landowners to liability even in cases where the danger was open and obvious (e.g., swimming pools, large pot holes, unmarked steps).  It will no longer be a complete defense, but will only be considered for purposes of determining if the plaintiff is also at fault, and if so, to what extent.

As an example, if a person is injured by falling into a three-foot wide pothole, under the proposed changes to the Premises Liability Act, the “open and obvious” defense could only be applied to the issue of comparative fault.  So, if the plaintiff is found to be 20% at fault and the landowner 80% at fault, she may still recover 80% of her damages.  Contrast that to the current law where the landowner could use the “open and obvious” as an absolute defense to liability. 

Post Authored by Liz Barton, Ancel Glink

Monday, February 23, 2015

Candidate Removed From Ballot for Binding Nominating Petitions with Binder Clip

Last Friday, a Cook County Circuit Judge upheld the decision of the Melrose Park Municipal Officers Electoral Board removing a candidate for village trustee from the ballot because he bound his 69-page nominating petitions with a black metal binder clip.  You can read the opinion here.

An objector had filed an objection to the trustee-candidate's nomination papers alleging that the candidate should be removed from the ballot for failure to comply with the provisions of Section 10-4 of the Election Code that require nominating petitions to be securely fastened. The relevant language of that statute is as follows:

Such sheets, before being presented to the electoral board or filed with the proper officer of the electoral district or division of the state or municipality, as the case may be, shall be neatly fastened together in book form, by placing the sheets in a pile and fastening them together at one edge in a secure and suitable manner, and the sheets shall then be numbered consecutively. The sheets shall not be fastened by pasting them together end to end, so as to form a continuous strip or roll.  10 ILCS 5/10-4.
The circuit court in the Melrose Park case considered two appellate court cases interpreting section 10-4 and its fastener requirement.  In one of those cases, the First District Appellate Court ruled that a candidate could stay on the ballot after binding his “six to eight” pages of nomination papers with a large metal paperclip. That ruling was based on the finding by the electoral board that the nomination papers could not be removed from the binding without removing the paper clip, thus showing strict compliance with section 10-4 of the Election Code.  In the other case, the Third District Appellate Court ruled that a candidate could not stay on the ballot because his papers were not securely fastened where he used a paper clip.

In the Melrose Park opinion, the court determined that the electoral board found that “the uncontroverted evidence is that it is possible to pull the pages apart without removing the clip.”  The  electoral board's finding was based on several demonstrations by the objector's attorney before the board that showed papers could be removed from the stack of 69 sheets without removing the binder clip, even though the sheets did not fall apart when shaken back and forth by the candidate. The court concluded that it would not disturb the electoral board's decision as it was not against the manifest weight of the evidence.

Currently, there is no bright-line rule that paperclips (or binder clips) are prima facia evidence of a “secure and suitable” fastening.  As a result, electoral boards will need to consider these type of objections on a case-by-case basis to determine whether a binder clip or paperclip is factually and actually a “secure and suitable manner” of fastening the nomination papers, as required by Section 10-4 of the Election Code. 

Candidates running for office may want to consider the potential risk that they could be removed from the ballot for using one of these type of fasteners, should an objection be filed and an electoral board determines that the fastener was not "secure and suitable."  

Full disclosure:  Ancel Glink represented the objector in this case.

Post Authored by Adam Lasker, Ancel Glink

Thursday, February 19, 2015

Mayor Candidate Remains on Ballot Even Without Minimum Signatures

A candidate for mayor of East St. Louis filed an objection to the nomination papers of the incumbent mayor, alleging that many of the mayor's signatures were invalid.  The electoral board conducted a hearing on the objection and determined that 48 of the 171 signatures were invalid. As a result, the mayor had 123 valid signatures, 13 short of the 136 signatures required to be on the ballot. Nevertheless, the electoral board denied the objection, finding that the mayor "substantially complied" with the signature requirement of section 10-3 of the Election Code and should remain on the ballot.  

The objector filed an appeal with the court.  In Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL App (5th) 150028, the appellate court upheld the electoral board's decision to keep the mayor on the ballot.

The appellate court first noted that section 10-3 (establishing the minimum signature requirements to run for office) is a directory, not mandatory, provision of the Election Code.  Unlike sections 10-4 and 10-5, there is no penalty for noncompliance with section 10-3.  Directory provisions can be satisfied with substantial compliance.  In this case, the mayor needed 136 signatures, and submitted 171 signatures in his nomination papers.  Although 48 of these were deemed invalid, the court held that he "demonstrated initiative and at least a minimal appeal to the eligible voters" and removing him from the ballot would "deprive him of his right to run for office and would prevent the voters of East St. Louis from reelecting their incumbent mayor if they desire to do so."  

The court also addressed the objector's argument that allowing electoral boards to employ the "minimal appeal" standard would result in confusion and random results.  The court was not concerned about setting such a precedent, noting that each objection would be heard and decided on a case-by-case basis "giving due consideration to the requirement's primary purpose."   The court did caution candidates not to view the "minimal appeal" standard as a safety net.

Post Authored by Julie Tappendorf

Wednesday, February 18, 2015

OMA Training Requirement Alternatives Not for Everyone

We've written before about the Illinois Open Meetings Act electronic training requirement for members of public bodies contained in Section 1.05 of the OMA.  That statute requires all elected and appointed members of a public body to complete the electronic training curriculum developed and administered by the Attorney General.  The law was enacted in 2010, and all then-serving members of public bodies had a year to complete the training.  For any member taking office after 2010, training must be completed within 90 days after the member takes the oath of office or otherwise assumes responsibilities in his or her position.  After completion of the program, the member is supposed to file a copy of the certificate of completion with the public body. 

Since the law was enacted in 2010, there have been a few amendments to this statute to approve alternative training programs for certain government bodies.  For example, elected school board members can satisfy the electronic training requirement by participating in a course of training "sponsored or conducted by an organization created under Article 23 of the School Code."  A commissioner of a drainage district or a director of a soil and water conservation district can satisfy the training requirements by participating in a training course conducted by an organization representing drainage districts, respectively.  Recently, the law was amended to allow elected or appointed members of a park district, forest preserve district, or conservation district to satisfy the training requirements by participating in a training course conducted by an organization that represents park districts.

Noticeably absent from these approved training alternatives is any provision for members of municipal, township, or library public bodies.  Municipal, township, and library officials would certainly benefit from having the same opportunities as these other government officials to participate in live training sessions, which offer certain advantages to a static website training such as the ability to ask questions and have a more interactive training experience.  Hopefully, the organizations that represent municipalities, townships, and libraries will lobby the Illinois General Assembly for alternative training options similar to those already offered to other governmental officials.

If you are an elected or appointed member of a public body and haven't either completed the electronic training program or attended one of the alternative training programs (if applicable), you should take care of that as soon as possible.  

Post Authored by Julie Tappendorf

Tuesday, February 17, 2015

Bill Would Ban Elected Official from Other Office

So many new bills to cover, so little time.  One of the most recent bills introduced in this legislative session is Illinois House Bill 1434 that would amend the Public Officer Prohibited Activities Act. The proposed new law would prohibit an elected official from holding any other public office simultaneously, whether or not the elected official receives compensation for a public office. 

The bill does not contain any exemptions, so it isn't clear how it would impact other statutory provisions that expressly allow certain elected officials to hold other offices. For example, the Illinois Municipal Code allows an elected village clerk to also be appointed as the village collector.  The Illinois Municipal Code and the Illinois Liquor Control Act expressly provides that the mayor (an elected official) also serves as the local liquor commissioner.  There is already a significant body of law on the issue of incompatibility of offices derived from Illinois Attorney General opinions that is intended to address any inherent conflict in serving in two offices.  It's not clear that a full-scale ban is necessary. 

Before this legislation is approved, there should be some discussion about how this broad ban affects other provisions in state law that this bill would appear to be in direct conflict with.

Monday, February 16, 2015

Zoning and Regulation of Craft Breweries

Last week, I attended a Chicago Bar Association continuing legal education (CLE) program on local licensing and zoning of craft breweries and brew pubs.  It was a fascinating program, and not just because there were free beer samples.  

Stewart Weiss, Chair of the CBA's Local Government Committee, put together a stellar panel, including a representative from the state liquor commission, a municipal attorney, an attorney who represents brewers, and the owner of a craft brewery.  One of the discussion topics was how the proliferation of craft breweries, microbreweries, and nanobreweries (a new term to me) has created a need to reconsider and modify current state liquor licensing regulations to address these new uses. 

Most state and local licensing schemes are based on what is called a "three tier" licensing scheme (producer, distributor, retailer). The basic structure of the system is that producers can sell their products only to wholesale distributors who then sell to retailers, and only retailers may sell to consumers. The system was set up after Prohibition to keep a tight control over the manufacture and sale of alcohol, and to keep the three "tiers" separated from one another. In its very simple form, a manufacturer cannot distribute or sell at retail, a distributor cannot manufacture or sell at retail, and a retailer cannot distribute or manufacture.  

Craft breweries and brewpubs obviously don't fit neatly into one tier.  A brewpub sells at retail the product it manufacturers on-site.  A rigid three-tier licensing scheme does not accommodate these type of hybrid uses, and as a result, we have seen may states (including Illinois) enact "exceptions" to the three-tier licensing scheme to allow these expanding uses.  Further changes are likely, as these craft brewery uses continue to gain in popularity.

States and local governments interested in bringing in these new uses (popular with residents and out-of-town visitors), will need to review their liquor licensing regulations to see whether the current regulations prohibit these hybrid uses.  Amendments to local zoning codes may also be necessary to determine where a hybrid manufacturing/industrial/retail/restaurant use would be appropriately located.

For more information, the American Planning Association just published an article in its February edition of Planning Magazine titled "Welcome to Beer Country" that discusses how towns are planning for these uses.  You can also check out the presentation slides here.

Post Authored by Julie Tappendorf

Friday, February 13, 2015

Illinois Governor Takes On "Fair Share"

From The Workplace Report with Ancel Glink: Governor Takes On "Fair Share":

On February 9, 2015, Governor Bruce Rauner issued Executive Order 15-13, entitled “Executive Order Respecting State Employees’ Freedom of Speech”.  The Executive Order directed the State Department of Central Management Services (“CMS”) and all other State agencies to cease enforcing “fair share” provisions of collective bargaining agreements covering State employees.  At the same time, the Governor has filed a pre-emptive “declaratory judgment action” in federal court, asking the court to declare the fair share provisions of the Illinois Public Labor Relations Act (IPLRA) to be unconstitutional, at least as applied to State employees working under the ultimate direction of the Governor. It is interesting to note that a few years back, former Indiana Governor Mitch Daniels executed a similar order. In response to a union challenge, the 7th Circuit, which is the same court that may ultimately hear the present case, upheld Daniel’s action as constitutional.
Under IPLRA, “fair share” is a statutory provision permitting a union and a public employer to include a provision in a collective bargaining agreement whereby the union charges and the employer deducts and remits to the union a “fair share fee” from the paycheck of any member of the bargaining unit who does not authorize the payment of union dues.  “Fair share fees” are considered to be payment to the union for contract negotiation and administration and are generally supposed to be calculated as union dues minus costs associated with internal union activities and union political activities.
Fair share fees assessed against public employees were upheld in the face of a constitutional challenge by the United States Supreme Court in the case of Abood v. Detroit Board of Education, 413 U.S. 209 (1977).  Recently, however, the Supreme Court ruled by a 5-4 majority in Harris v. Quinn, 134 S.Ct. 2618 (2014) that the Abood decision could not be extended to Illinois home health care aides (“personal assistants”), a category of workers who by state law are considered to be State employees for collective bargaining purposes only.
Executive Order 15-13 is founded on the Harris decision, and particularly on criticisms of the Abood decision contained in the opinion of the Court wherein the Court labeled the Abood decision an “anomaly” and called the analysis supporting it “questionable on several grounds”.  Based on the Governor’s reading of Harris, the Executive Order contends that fair share fees are a violation of the “bedrock principle” embedded in the First Amendment “that ‘no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support’ because ‘compelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech’.”
Predictably, Illinois public sector unions have criticized the Executive Order as “a blatantly illegal use of power”, and have suggested that the Governor is simply seeking leverage at the bargaining table in upcoming negotiations with unions representing State employees.  The Governor, however, said that he was “doing the right thing – the fair thing for the people of Illinois”.
The Executive Order affects State employees, but not local government employees who are covered by IPLRA or IELRA.  Therefore, local government employers must continue to honor collective bargaining provisions requiring them to collect and remit fair share fees, although a court decision affecting fair share fees for State employees ultimately may affect the legality of fair share fees for local government employees.
It is unknown how long it may be before a definitive court decision is reached on fair share fees.  It seems highly likely, at this very early stage of proceedings, that the case concerning the legality or illegality of the Executive Order ultimately will be presented to the United States Supreme Court.  And it also seems reasonable to predict that the outcome of the case will depend on the composition of the Court at the time the case is presented.
Rauner has not hidden his opinion that the power of public employee unions must be restricted as one step in repairing the dire financial situation of the state. It’s no secret that he will likely take a page from Scott Walker’s book in Wisconsin as well as from Michigan and Indiana in attempting to restrict the bargaining rights of public employees to save money. His Executive Order may be the easiest step in that quest though as he would have to break the long and close bond between Illinois legislators and unions to achieve his goal. It’s going to be an interesting four years.

Originally posted by Don Anderson on The Workplace Report with Ancel Glink

Thursday, February 12, 2015

Teacher's Dismissal for Positive Blood Alcohol Test Overturned by Court

The Chicago Board of Education terminated a teacher after she reported to work with a blood alcohol level of .053.  After the assistant principal smelled alcohol on the teacher's breath at 8:30 a.m., he reported this to the principal, who then called the teacher into his office.  The principal called the teacher into his office, and requested that a certified technician perform a breathalyzer test.  The test was administered at 11:32 a.m., and registered at .053 BAC.  Based on the drug and alcohol free workplace policy, the teacher was terminated from her position.

The teacher appealed her termination to the , arguing that CPS failed to prove by a preponderance of the evidence that she was "under the influence" of alcohol, and that her BAC test alone was not sufficient to establish that she was "impaired."  The appellate court reversed the Board's decision to terminate the teacher, finding that decision arbitrary.  In the court's view, the BAC test was not enough to establish that the teacher was "under the influence."  Kinsella v. Board of Education of Chicago et al., 2015 IL App (1st) 132695

Based on this court's ruling, an employer may not be able to rely on a positive BAC test to discipline or terminate an employee for violation of its drug and alcohol policy without additional evidence of "impairment."  

Post Authored by Julie Tappendorf