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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, January 17, 2018

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

We have written a number of blog posts about employee activity on social media and the extent to which an employer can discipline, or even terminate, an employee for social media activities. That is the subject of today's post which was first published on Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink. You can read the original post here: Court Dismisses Free Speech Suit by Deputy Fire Chief against Calumet City

Last week, an Illinois federal district court dismissed a suit against the City of Calumet City after it discharged a Deputy Fire Chief allegedly for a series of critical and political remarks he made on Facebook. Banske v. City of Calumet City, 17 C 5263, 2018 WL 372145 (N.D. Ill. Jan. 11, 2018). According to news reports about the social media posts, his comments included the following:
"It's bad enough that I have spent a lifetime being called a racist by idiots on the left but now the idiots like Mitt Romney are calling me one too because I support Trump. Hey Mitt-go F yourself."
"Protest anything you want but if you interfere with my right to travel or get to my kids or my home you're gonna get run over. And I really don't care if you get hurt."
After the City was made aware of the posts, the Deputy Chief claimed he had a phone conversation with the City's personnel director and the assistant to the Mayor about his Facebook commentary but was not directed to stop posting. Later, according to the Deputy Chief, the Fire Chief informed him that he was being discharged “due to concerns over his private political views” on his Facebook page.
Subsequently, the Deputy Chief filed a lawsuit in federal court against the City, the Mayor, and others alleging that his First Amendment rights were violated when he was terminated. 

In considering the Deputy Chief's claims, the district court analyzed the legal standards for public employee speech under the First Amendment. While public employees have a right to engage in free speech, that right is tempered by a few factors. To establish a First Amendment retaliation claim, a public employee must show that:

  1. he engaged in constitutionally protected speech; 
  2. he suffered a deprivation because of his employer's action; and 
  3. his protected speech was a “but-for” cause of the employer's action.
In dismissing the Deputy Chief's case, the court determined that the Deputy Chief did not establish that his speech was constitutionally protected. One of the significant issues for the court was the plaintiff's position as Deputy Chief. The court noted that an employee who is considered a “policymaker” in the organization may be discharged “when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies.” The outcome may have been different had the Deputy Chief engaged in the political commentary while still a firefighter, and not as a Deputy Chief. But, the law clearly sides with a public employer’s right to demand a certain amount of loyalty and circumspection in an employee’s speech when that employee becomes “management” or is involved in the creation or effectuation of policy within the organization.

Free speech issues are still tricky and the rules can apply differently depending on the facts of the particular situation. Employers should always look at the position and duties of the employee making critical statements, where the statements were made, along with whether the statements are negatively affecting the organization. Employers are rightfully sensitive to negative statements on Facebook because of the possible widespread dissemination  of the remarks. Each case must be evaluated individually though to determine the lawful response. It is good practice to consult with labor and employment counsel before taking action against your public employee as a result of his or her negative statements about the organization or officials.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Tuesday, January 16, 2018

FOIA Bill Would Require Publication of Severance Agreements

Last week, the Illinois House introduced a bill that would amend the Freedom of Information Act to address severance agreements with employees accused of sexual harassment or sexual discrimination. If enacted, HB 4242 would require units of local government to publish notice within 72 hours of making any payment to an employee under a severance agreement. The notice would have to be published on the local government's website and in a newspaper with the largest circulation in the local government for a period of 7 days and would have to include the following information:

(1)  the name of the person receiving the payment;
(2)  the amount of the payment; and
(3) the fact that the person receiving the payment has been accused of sexual harassment or sexual discrimination, as the case may be. 

Interestingly, although FOIA applies to all public bodies, including the state government and its agencies, this proposed FOIA amendment only applies to units of local government and does not cover state agencies. There was a "companion" bill introduced on the same day, however, that would prohibit use of state funds for payment to any state employee "involved with or relevant to allegations and investigations of sexual harassment by a member of the general assembly." HB 4243. If that bill passes, it would seem to prevent not only a severance payout to a state official but also prevent a payout to an alleged victim.

We will keep you posted on the proposed legislation and let you know if it goes anywhere.

Post Authored by Julie Tappendorf

Monday, January 15, 2018

Illinois Supreme Court Rules in Bike Path Immunity Case

The Illinois Supreme Court recently ruled that pubic bodies that operate urban and suburban pedestrian/bicycle paths are not granted absolute immunity from liability under Section 3-107 of the Illinois Tort Immunity Act, though they are protected by the limited immunity afforded under Section 3-106 of that Act.  You may recall that we had reported previously about this case here.

In Cohen v. Chicago Park District, Cohen was riding his bike on the Lakefront Trail in Chicago.  As he attempted to pass a pedestrian, his front tire was caught in a crack in the concrete.  The crack was three to four inches wide, two to three inches deep, and three to four feet long.  Cohen fell off his bike and injured his shoulder, then rode his bicycle home.  He sued the Chicago Park District, and the Park District filed a motion for summary judgment arguing it was immune from liability under Section 3-107(a) and 3-106 of the Tort Immunity Act.

The trial court ruled in favor of the Park District, finding that the District was immune from liability under both Sections 3-107(a) and 3-106 of the Illinois Tort Immunity Act. The appellate court reversed, finding that the absolute immunity provided by Section 3-107(a) did not apply to the Lakefront Trail because it “was intended to apply to roads providing access to primitive, undeveloped recreational areas.” The appellate court also held that summary judgment on the immunity under section 3-106 was inappropriate because the court could not find that the Park District's conduct was not willful and wanton as a matter of law.

The Park District then appealed the case to the Illinois Supreme Court. 

First, the Illinois Supreme Court upheld the appellate court’s ruling that the Park District did not have immunity under Section 3-107(a) but on different grounds.  The appellate court’s analysis focused on the word “primitive” in regard to the types of roads that are covered under Section 3-107(a).  The Illinois Supreme Court, instead, determined that the Lakefront Trail is not a “road” within the meaning of Section 3-107(a), and that a “road” is a public way that permits travel by motorized vehicles such as motorcycles, cars and trucks. 

Second, with respect to the Park District's claim of immunity under Section 3-106, the Illinois Supreme Court found that the park district’s actions were not willful and wanton, so the Park District was immune from liability for Cohen's injuries.  The Court based its determination on the facts that, prior to the accident, upon being notified of the crack in the pavement, a park district employee inspected the crack and placed it on a repair list for a rapid response program, and the bidding process and repair of the crack were completed within 30 days.  Cohen had argued that the Park District could have done more, including barricading the path or using in-house employees to perform temporary repairs.  While the Court agreed that might be true, it held that even if the Park District’s conduct may have been negligent, it did not rise to the level of willful and wanton. So, the immunity under 3-106 would apply.

This case, when read along with another case recently decided by the Illinois Supreme Court, Korbett v. County of Lake, effectively eliminates the absolute immunity provided to public bodies for urban and suburban bicycle/pedestrian paths.  In the Korbett case, the Court ruled that those paths are not “trails” as defined in Section 3-107(b) and in this case, those paths are not “roads” as defined in Section 3-107(a).  

As a result of these recent cases, park districts and other government agencies that manage shared-use bicycle/pedestrian paths are left to rely on the immunity provided by Section 3-106.  Agencies that operate these type of paths need to be aware that Section 3-106 immunity is not absolute and contains an exception for willful and wanton conduct.   

Post Authored by Jim Rock, Ancel Glink  

Friday, January 12, 2018

Appellate Court Rules Against Candidate Who Lost Primary Election

After a candidate in the February 28, 2017 primary election ran for the Peoria city council and lost by a narrow margin, he sued to contest the election and ask the court to issue an injunction to "stay" the general election. The trial court dismissed the case, finding that injunction relief was only available to stay an election based on a limited basis and no exception applied in this case. The court also noted that the candidate did not file his amended complaint in time under the Election Code. The general election took place on April 4, 2017, and the candidate appealed on May 1, 2017.

The appellate court dismissed the appeal based on rulings by the Illinois Supreme Court that found similar cases moot where the election had already taken place and none of the exceptions to the mootness doctrine applied.  Elsamny v. The Peoria County Board of Election Commissioners, 2018 IL App (3d) 170295.

Post Authored by Jessi DeWalt, Ancel Glink

Thursday, January 11, 2018

Can a Public Body Meet on a Holiday?

We have been getting quite a few questions regarding whether a public body can hold a meeting on a state holiday. The answer is...it depends.

Section 2.01 of the Illinois Open Meetings Act provides, in part, as follows:
No meeting required by this Act to be public shall be held on a legal holiday unless the regular meeting day falls on that holiday.
That means that if the public body has adopted an annual schedule of its regular meetings, and one of the regular meeting dates happens to fall on a legal holiday, the public body can conduct its regularly scheduled meeting on that day.

However, a public body should not schedule a special meeting on a legal holiday, which is defined under Illinois statute to include the following:

  • New Years Day
  • Martin Luther King, Jr.'s Birthday
  • Abraham Lincoln's Birthday
  • Casimir Pulaski's Birthday
  • Good Friday
  • Memorial Day
  • Independence Day
  • Labor Day
  • Columbus Day
  • Veterans Day
  • Thanksgiving Day
  • Christmas Day

So, if your regularly scheduled government board meeting falls on January 15th this year you can conduct that meeting. But, you should not schedule a special meeting on that day or any of the other legal holidays in Illinois. 

Post Authored by Julie Tappendorf

Wednesday, January 10, 2018

Annexation Bill Would Limit Lawsuits Challenging Contiguity

There hasn't been much activity in the Illinois General Assembly, but one bill that may be of interest to Illinois municipalities is HB 4203 which proposes changes to the law regarding when a lawsuit can be filed to challenge an annexation. 

Currently, state statute requires that any lawsuit challenging the annexation of property to a municipality has to be filed within one year of the date the date the annexation  becomes final. There is one exception to the one year statute of limitations - challenges involving whether an annexed property is "contiguous" to the municipality at the time of annexation have no time limit on when a lawsuit can be brought. HB 4203 would change that and require that any lawsuit challenging the contiguity of an annexed property be brought within 10 years of the adoption of the ordinance annexing the property to the municipality.

The bill was introduced on December 20th. We will keep you posted on this proposed legislation.

Post Authored by Julie Tappendorf

Tuesday, January 9, 2018

Tort Immunity Act Limitation Period Not Apply to Wage Act Claim

Plaintiff was employed by Winnebago County for nearly 20 years. When he left his job in 2007, he claims he was not compensated for 526 hours of unused vacation time.  In 2016, he filed a lawsuit against the County under the Illinois Wage Payment and Collection Act (Wage Act), seeking $30,142.43 for his unpaid, unused vacation time. 

The County filed a motion to dismiss the complaint, arguing that the lawsuit was filed too late because it was not filed within the one year limitation period established by the Illinois Tort Immunity Act. The trial court ruled in favor of the County and plaintiff appealed.

On appeal, the County argued that the one year limitation period under the Tort Immunity Act applied because the relief being requested was monetary relief similar to damages. Plaintiff, on the other hand,  argued that the 10 year limitation period under the Wage Act applied because the relief he requested was not in the form of “damages” but instead payment of funds the County was contractually obligated to pay him. 

The appellate court agreed with the plaintiff, finding that the arguments made by plaintiff in his complaint were based on allegations that the County failed to perform a contractual obligation (payment of accrued wages). As a result, the court held that the 10-year limitations period in the Wage Act applied to his claims, so the dismissal of his case was reversed. Prorok v. Winnebago County, 2017 IL App (2d) 161032.

Post Authored by Jessi DeWalt, Ancel Glink

Monday, January 8, 2018

PAC Binding Opinions of 2017

It's that time of year when we provide a summary of the binding opinions issued by the Public Access Counselor office of the Illinois Attorney General on FOIA and OMA complaints.  This year, the PAC issued 14 binding opinions, summarized below:

PAC Op. 17-001 (public body must provide detailed factual basis for exemption)
In PAC Op. 17-001, the PAC found the Illinois State Police in violation of FOIA for improperly denying a request for an ISP field report referenced in an accident report the requester had previously received. In the PAC's opinion, the mere existence of an open investigation is not enough to satisfy this exemption, and the ISP was required to explain, in some detail, why release would interfere with the open investigation.

PAC Op. 17-002 (public body must respond to FOIA)
In PAC Op. 2017-002, a reporter sought a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.  

PAC Op. 17-003 (city improperly redacted financial information)
In PAC Op. 17-003, the PAC found a public body in violation of FOIA for improperly redacting and withholding certain financial information from its response to a FOIA request because (1) It failed to provide a written explanation for any denial of a FOIA request, including a partial denial that results in redactions of public records; (2) it improperly redacted financial terms of the district's agreement with the private company was improper but the use of public funds is public information under the Illinois constitution; and (3) it withheld annual budgets where there is no exemption under FOIA that would require a public body's budget to be withheld.

PAC Op. 17-004: (closed session)
In PAC Op. 17-004, the PAC found a municipality in violation of the OMA for improperly discussing an intergovernmental agreement in closed session. The public body relied on the "pending or probable" litigation exception but the PAC rejected that and noted that the newspaper had reported that no lawsuit was pending and that the mayor had stated that that he did not expect a lawsuit to be filed.

PAC Op. 17-005 (statistical traffic count data not exempt)
In PAC Op. 17-005, a requester filed a FOIA request seeking traffic counts from roadway monitoring operations at specific roads. The village denied the request, asserting that the traffic counts were "drafts" that had not been publicly released and were exempt under 7(1)(f). The PAC rejected the village's explanation for the denial, finding that "purely factual material" is not exempt under the deliberative process exemption.

PAC Op. 17-006 (employee records not exempt)
In PAC Op. 17-006, a reporter requested records showing job titles, locations, and number of employees that the Department of Corrections considers "essential.” The Department denied the request. The PAC ruled against the DOC finding that it failed to provide a detailed factual basis for the exemption and failed to provide records to the PAC for confidential review under section 9.5(c) of FOIA. The PAC also rejected DOC’s use of the "attorney-client" exemption, and its argument that the determination of whether an employee is "essential" is a legal analysis that falls under the attorney-client privilege under section 7(1)(m) of FOIA.

PAC Op. 17-007 (public body must respond on behalf of airport authority)
In PAC Op. 17-007, the PAC found a City in violation of FOIA for not responding to FOIA requests to the City’s Airport Board. The PAC disagreed with the City’s contention that the Airport is a separate entity.  Although the Airport has its own board and adopts it own laws, the PAC found that the Airport was a City-owned property, and the Board was created by City ordinance. The Airport Board members are also appointed and may be removed by the City’s mayor and Airport funds are maintained in the City treasury.  Further, the PAC noted that the Airport Board submits reports to the City, and is listed as a City Board on the City’s website. 

PAC Op. 17-008 (Deputy Governor’s emails and daily schedule)
In PAC Op. 17-008, the PAC issued a ruling finding the Governor's office in violation of FOIA for not responding to a request for copies of the Deputy Governor's emails and daily schedule. 

PAC Op. 17-009 (public body must comply with FOIA)
In  PAC Op. 17-009,  the PAC issued an opinion finding a public body in violation of FOIA for its complete failure to respond to a FOIA request.  

PAC Op. 17-010 (employee names on certified payroll releasable)
In PAC Op. 17-010, the PAC found a municipality in violation of FOIA for redacting employee names from a certified payroll record provided in response to a FOIA request. The PAC acknowledged that section 2.10 of FOIA authorizes a public body to redact from certified payroll records the contractor employees' addresses, telephone numbers, and social security numbers, but noted that this statute does not allow redaction of the employees' names. 

PAC Op. 17-011 (9-1-1 tapes releasable)
In PAC Op. 17-011, the PAC found a public body in violation of FOIA for denying a request made by a reporter for a 9-1-1 tape involving the death of a child. 

PAC Op. 17-012 (audio tape recordings of open meetings are subject to release)
In PAC Op. 17-012, the PAC found a public body in violation of FOIA when it denied a request to release audio recordings of meetings of the public body. The PAC rejected the public body's argument that the audio recordings were preliminary because they are used in the preparation of the official minutes of the meeting. 

PAC Op. 17-013 (closed session not proper to discuss board member conduct)
In PAC Op. 17-013, the PAC determined that a Village Board could not go into closed session to discuss a Board member's alleged racists  comments made at a previous Board meeting because a Village Board does not have the power to remove one of its members from office, in the PAC's opinion.

PAC Op. 17-014 (purpose of FOIA request is not a basis for denial)
In PAC Op-014, the PAC found a county in violation of FOIA for denying a request for copies of FOIA requests. The county had denied the request because it believed the request to be improper. The PAC found that to be an improper basis for denial since there is no provision in FOIA authorizing withholding of records based on a belief about the underlying purpose of the request.

PAC Op. 17-015 (failure to respond to FOIA request)
The PAC found the Governor's office in violation of FOIA for failing to respond to a FOIA request for a log of all FOIA requests for a defined period of time. PAC Op. 015.

Friday, January 5, 2018

PAC Finds Violation for Failure to Respond to FOIA Request

Last week, the PAC issued its final binding opinion for 2017. In PAC Op. 17-015, the PAC found the Governor's office in violation of FOIA for failing to respond to a FOIA request for a copy of a log of all FOIA requests received from July to September of 2017. The Governor's office did not respond to the FOIA request, nor to the PAC's request for review, and the PAC found the office in violation of FOIA. No new guidance to assist public bodies in this opinion beyond the obvious - that public bodies have an obligation to respond to FOIA requests.

Post Authored by Julie Tappendorf

Thursday, January 4, 2018

Home Rule Village Had Authority to Remove Library Trustee

In Illinois, state statute has established a number of distinct forms of public libraries, including library districts and municipal public libraries. The Village of Downers Grove, a home rule municipality operating as a commission form of government, has a municipal library that was established by the Illinois Local Library Act. Pursuant to that Act, the Village council appointed members to the library board for six year terms. When one of those members was removed by the Village council prior to the expiration of his term, he sued, claiming that the removal violated state law and exceeded the Village's home rule powers. In Jaros v. Village of Downers Grove, 2017 IL App (2d) 170758, the appellate court upheld the Village council's decision to remove the board member.

The Local Library Act details how members are appointed to a library board. For example, in a city, the mayor, with the approval of the city council, appoints the members of the library board. In a town, township, or village not under the commission form of government, the board members are elected. In a village under the commission form of government, like Downers Grove, the village council is the appointing authority. 

With respect to removal of municipal library board members, the Local Library Act is not as definitive. Section 4-1.1(b) of the Local Library Act provides that the mayor in a city is authorized to remove a library board trustee. The Act does not expressly state the process for removal of a library trustee in a village operating under the commission form of government. However, the Downers Grove Village Code did include provisions detailing how appointed officers on boards and commissions can be removed from their positions. It was that language that the Downers Grove Village Council relied on in removing plaintiff from his position as library board trustee. 

Plaintiff argued that the Village exceeded its home rule authority in removing him from the library board on a number of bases. He argued that the removal violated the Local Library Act and required referendum approval because the Village was changing the form of government by establishing a removal process by local ordinance. He also argued that the Village exceeded its home rule powers.

The appellate court disagreed with plaintiff. First, the court held that the Village, as a home rule municipality, had the authority to establish a removal process by local ordinance. As a result, there was no need to go to referendum. Second, the court found no inconsistency with the village's removal process and state statute, so the village was not preempted. Finally, the court rejected plaintiffs' constitutional claim that he was deprived of his liberty and property interests by being removed from his position.

Post Authored by Julie Tappendorf

Wednesday, January 3, 2018

ELGL Honors Ancel Glink

We would like to thank our friends at ELGL (Engaging Local Government Leaders) for recognizing Julie Tappendorf and Dan Bolin for their appearance on the GovLove podcast! Julie and Dan joined host Stacy Schweikhart to discuss local governments on social media in Episode 147 “Local Goverment Law, Are You Tweeting Into Trouble?” At the 2017 GovieLovie Awards, the episode earned the Tag Team award, for best episode with more than one guest.

Julie and Dan also authored a companion article, “Supreme Court Decision Affects Local Governments on Social Media,” which ELGL recognized as one of its top three most-read articles in 2017. Julie and Dan discussed how the First Amendment affects social media use by governments and their employees, and the importance of adopting a social media policy.

ELGL is a fast-growing, big-tent organization, connecting and educating local government professionals across Illinois and across the country. The GovLove podcast is the leading podcast about local government, and we look forward to joining ELGL for more episodes of GovLove Legal in 2018. ELGL’s website had over one million views in 2017, and was recently named one of the 30 Must-Read State and Local IT Blogs by State Tech magazine. We are excited about ELGL’s work for local government professionals, and we look forward to being a part of another great year for ELGL.

Post authored by Dan Bolin and Julie Tappendorf

Tuesday, January 2, 2018

10 Most Popular Posts of 2017