Monday, January 16, 2017

Police Department's Social Media Policy Unconstitutional

In 2013, a Virginia police department adopted and implemented a social media policy for its police officers. The policy, among other things, prohibited police officers from posting negative comments about (1) the internal operations of the department and (2) specific conduct of supervisors or co-workers that would impact the public perception of the department, stating that such comments were not protected by the First Amendment. The policy also stated that while officers could comment on matters of general or public concern, the comments could not disrupt the workforce, interfere with working relationships or workflow, or undermine public confidence in the officer. 

Relying on the social media policy, the department disciplined two officers for Facebook posts they made about co-workers, supervisors, and the department while off-duty. The posts included comments about their disagreement with recent promotions, and coworker conduct and the promotion of certain officers that the two officers believed should not have been promoted. The posts also included discussions about their their supervisors and lack of leadership in the department. 

Both officers were given an oral reprimand and six months' probation. The officers sued under § 1983 alleging the department's social media policy violated their First Amendment free speech rights. The case made its way to the Fourth Circuit Court of Appeals. That Court found the department's social media policy unconstitutional and held that the disciplinary measures taken against the officers pursuant to that policy were impermissible.

The Court's specific issue with the social media policy was that it was overbroad because it bans employees from speaking on matters of public concern - in this case, speech that is critical of the government employer. The Court had specific concerns with policy provisions that ban social media posts that fall within the following categories:
  1. posts that "would tend to discredit or reflect unfavorably" on the department.
  2. "negative comments on the internal operations" of the department.
  3. discussions about the "specific conduct of supervisors or peers."

In the Court's view, these prohibitions impose a significant burden on the right of government employees to speak out on matters of public concern.

The Court then held that the department could not rely on the policy as a basis to discipline the officers for their social media activities, particularly where the posts fell within the provisions cited above that were found unconstitutional.   Liverman v. City of Petersburg (4th Cir. 2016).

Post Authored by Julie Tappendorf

Thursday, January 12, 2017

AFSCME Sues Illinois Labor Relations Board For Allegedly Violating Open Meetings Act

In an uncanny twist to the ongoing collective bargaining negotiations between AFSCME and the State of Illinois, on December 6, 2016 AFSCME filed a lawsuit alleging the Illinois Labor Relations Board violated the Open Meetings Act when it issued its written decision and order finding that the parties were at impasse in the negotiations. The complaint also included a request that the court issue a temporary restraining order to prohibit the state from implementing the terms of its "Last, Best, and Final Offer."

These unusual circumstances and allegations of Open Meetings Act violations are the result of more than two years of contentious collective bargaining negotiations. By way of background, in early 2015, the State and AFSCME began negotiating for a successor collective bargaining agreement. In those negotiations, the parties negotiated and agreed to a series of Tolling Agreements whereby they agreed to continue meeting and negotiating in good faith for a successor bargaining agreement and to not to engage in strikes, work stoppages, work slowdowns, or lockouts unless they mutually agreed that an impasse had been reached in the collective bargaining or until the Illinois Labor Relations Board resolved the issue concerning the existence of an impasse. To that end, on January 8, 2016, the State determined that an impasse existed and presented AFSCME with a Last, Best, and Final Offer and pursuant to the Tolling Agreement. After AFSCME disagreed that the parties were at impasse, the State submitted the issue to the Illinois Labor Relations Board as an unfair labor practice charge. 

On November 15, 2016, the Illinois Labor Relations Board orally declared there was an impasse in the collective bargaining negotiations. Thereafter, the State began implementing the terms of its Last, Best, and Final Offer, which included the following contract terms: $1,000 merit pay for employees who missed less than 5% of assigned work days during the fiscal year; overtime after 40 hours; bereavement leave; the use of volunteers; the beginning of a merit raise system; drug testing of employees suspected of working impaired; and the formation of a task force to look into workplace safety. The Illinois Labor Relations Board issued its written decision on December 5, 2016, but subsequently reissued the decision at its December 13, 2016 Board Meeting.

Since the ILRB oral decision, AFSCME has launched a full litigation assault to sidestep the Illinois Labor Relations declaration of impasse by first filing for a TRO in St. Claire County on December 1, 2016 to prohibit the State from implementing the terms of its Last, Best, and Final Offer and then filing on December 6, 2016 the action challenging to the Illinois Labor Relations Board’s impasse order as a violation of the Open Meetings Act. In its lawsuit, AFSCME purports that the Illinois Labor Relations Board circumvented the Open Meetings Act by making substantive determinations in private and outside the November 15, 2016 Board meeting. AFSCME’s claims are based on alleged differences between the Illinois Labor Relations Board’s written decision issued on December 5, 2016 and its oral decision issued at the November 15, 2016 Board meeting.

Even though it is unlikely any inconsistencies AFSCME alleges between the Illinois Labor Relation Board’s oral decision and its written order would not have changed the result, the circuit court granted AFSCME’s request for the TRO against the Illinois Labor Relations Board and suspended the enforcement of its written decision permitting the implementation of the State’s Last, Best, and Final Offer. Indeed, the Illinois Labor Relations Board likely cured any error if there was one by reissuing the written order on December 13, 2016. But, the net effect of the granting of the TRO is that the negotiations are back where they started – at a standstill.

We will provide updates or developments as this case proceeds.

Post Authored by Jeff Brown, Ancel Glink

Tuesday, January 10, 2017

Municipality Failed to Properly Fund Police and Firefighter Pensions

In a recent case, a court held that a Village failed to properly fund its police and firefighter pension funds in violation of the Illinois Pension Code. Village of North Riverside v. Boron. 

The Pension Code requires that municipalities contribute a certain amount to their police and firefighter pension funds every year.  Under the Pension Code and the corresponding regulations in the Illinois Administrative Code, a municipality must show “good and sufficient cause” for failing to properly fund its pensions with evidence of some unforeseeable delay or occurrence, an uncontrollable circumstance, or an Act of God.

The Illinois Department of Insurance found that the Village had failed to make the required annual contributions to its police pension fund from 2008-2012, and failed to make the required annual contributions to its firefighter pension fund from 2009-2012.  The Village admitted it failed to make the required contributions, but claimed the failure was caused by mitigating circumstances outside of the Village’s control.  The Illinois Department of Insurance subsequently called a hearing to allow the Village to show “good and sufficient cause” for its failure to properly fund its pensions. 

At the hearing, the Village claimed it was unable to meet its statutorily required funding obligations mainly due to the recession that began in 2008. The Village offered evidence that the Village’s property tax receipts decreased due to the economic downturn and successful property tax appeals. The Village also provided evidence that it lost its largest sales tax producer in 2012. The Village claimed that, as a non-home rule municipality subject to the Property Tax Extension Limitation Law (PTELL), the Village could not increase its property tax levy to cover its losses.  The Village issued bonds and debt certificates in an attempt to make up for the lost revenue, which apparently led to Village’s credit rating being downgraded.

However, evidence was also produced showing that the Village had made the full required contributions to the IMRF for other Village employees (non-public safety).  The evidence also showed the Village’s sales tax receipts had actually increased as a result of tax hikes in 2008 and 2012.  Additionally, the Village admitted it subsidized garbage collection and water services for its residents, unlike many other municipalities.  

At the conclusion of the hearing, the hearing officer determined the Village had not shown “good and sufficient cause” for its noncompliance, and ordered the Village to comply within 30 days. On appeal, the Village argued that (1) “good and sufficient cause” as used in the Illinois Pension Code and the Illinois Administrative Code is unconstitutionally vague because it provides the hearing officer with too much discretion; and (2) that the decision was otherwise arbitrary and erroneous. 

The appellate court rejected the Village's arguments and upheld the decision of the hearing officer.  The court noted that the regulations allowed the Village to present almost any reason for failing to comply, and yet the Village still failed to establish any good and sufficient cause for its noncompliance.  The court also found that the decision of the hearing officer was not erroneous or arbitrary, as the evidence showed that the Village made conscious decisions to prioritize its spending and allocate funds elsewhere in violation of the Pension Code.  The court specifically noted that the Village had used increased sales tax revenue to fill gaps in the Village’s normal revenue stream and that the Village continued to subsidize garbage and water services instead of funding its pensions.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, January 9, 2017

Neighboring Village Lacks Standing to Challenge Rezoning & Development Application

A developer filed an application with the Village of Lemont requesting approval of a rezoning and its development plans for property at Grand Road. The application sought to rezone the property from residential to a manufacturing district so they could use the property as a heavy industrial development.  The property was located close to the Village of Willow Springs, which filed a lawsuit asking the court to enjoin Lemont from approving the rezoning and development. The court dismissed Willow Springs’ complaint based, in part, on a lack of standing, and Willow Springs appealed.

A municipality’s standing to challenge another municipality’s zoning decision requires the first municipality to demonstrate that it would be "substantially, directly and adversely affected in its corporate capacity" by the zoning decision. Willow Springs argued that Lemont’s approval of the zoning application would constitute a public nuisance and that it had a real interest in the proposed development because approval of the application would negatively affect the quality of life of its residents, property values and its village’s growth and development.  However, the appellate court disagreed, finding that Willow Springs failed to demonstrate that as a neighboring municipality it was “substantially, directly and adversely affected in its corporate capacity” by the rezoning. As a result, Willow Springs lacked standing to assert a constitutional challenge.   Village of Willow Springs v. Village of Lemont

The court also found no reason to enjoin future action that would prevent Lemont from approving the proposed development, noting that “Illinois courts have long refused to preemptively enjoin legislative action, holding that challenges are more properly made to a law’s enforcement once it has been enacted,” 

Finally, Willow Springs argued that it would suffer irreparable harm because the proposed development is inconsistent with the character of the adjoining area of Willow Springs, resulting in diminished property values, lost property tax, congested roads which are safety hazards and result in degraded air quality. The Court found these to be “exceedingly generic” allegations for proposed new facilities since the development was not yet constructed or operating. The court also acknowledged that the property had been previously zoned for industrial use prior to being annexed to Lemont and that Lemont had planned for industrial use on this property in its comprehensive plan, evidence that tended to support the rezoning application.

Post Authored by Megan Mack, Ancel Glink

Friday, January 6, 2017

New Requirements for Law Enforcement Agencies Re: Sexual Assault Crimes

A new state law (Public Act 099-0801) contains new requirements for law enforcement agencies regarding the handling of sexual assaults and sexual abuse crimes. Among the changes are:
  • Mandatory Report Writing
  • Additional Responsibilities for Responding Officer 
  • Collecting, Storing, and Testing of Sexual Assault Evidence
  • Release of Information to the Victim Relating to Evidence Testing
The Illinois Chiefs' association has worked with the Illinois Attorney General's office to help prepare report templates and guidelines for implementing the new law. Forms and additional information are available on the Attorney General's website here. The Attorney General's office has also prepared this detailed Bulletin for Law Enforcement regarding the new law.

If you have questions regarding this document, you can contact Jessica O’Leary, Assistant Attorney General, Office of Illinois Attorney General Lisa Madigan, Policy Division, at or 312-814-1003, or your legal counsel.

Post Authored by Ellen Emery, Ancel Glink

Thursday, January 5, 2017

Final 2 Binding PAC Opinions of 2016 (Open Meetings)

In the last two binding opinions of 2016 issued by the Public Access Counselor's office of the Attorney General (PAC), the PAC found two public bodies in violation of the OMA.  With these 2 opinions, the PAC issued 15 binding opinions in 2016 (5 of which were issued in December).

PAC Op. 16-014: Public Body's Advance Notice Rule for Recording Meetings Unreasonable

In PAC Op. 16-014, the Norwood Park Watchdog group filed a complaint with the PAC alleging that the local school district board violated the Open Meetings Act when it prohibited him from recording the board's open session. The board had rejected his request made 10 minutes before the meeting based on a local board policy that required a person to notify the board president or superintendent in advance. Although the board's recording policy was silent on what advance notice was required, the board had applied the policy to require 24 hours advance notice. The board explained that the advance notice was required to ensure that the recording equipment was properly placed to avoid recording the images of students in attendance at a school board meeting.

The PAC rejected the board's arguments and ruled that the school board's "advance notice" requirement for recording board meetings was not reasonable under the OMA. The PAC noted that the board had not cited any compelling reason for requiring advance notice (the PAC did not accept the board's argument that children may be present, instead stating that the board could simply move its meetings if it were concerned about student privacy. In sum, the PAC ordered the board to revise its policy consistent with its opinion. 

PAC Op. 16-015: Public Body's Final Action on Item Not Listed on Agenda Violated OMA

In PAC Op. 16-015, a Village Trustee filed a complaint with the PAC alleging that his Board violated the OMA by voting on an item that was not on the agenda. At a board meeting, one of the board members made a motion to approve a settlement agreement under the agenda item identified as "Old Business." The minutes showed that the Board attorney had cautioned the board that it could not take action on the agreement because it was not on the minutes. Nevertheless, the board took a vote and the motion passed. Not surprisingly, the PAC found the board in violation of the OMA for taking final action on a matter that was not identified on the agenda. 

Post Authored by Julie Tappendorf

Wednesday, January 4, 2017

2 Recent PAC Opinions Deal with Employee Salaries

The Public Access Counselor (PAC) was a little busy in December cranking out the last of the binding opinions for 2016. This post summarizes 2 of these opinions, both of which deal with public employee salary information:

In PAC Op. 16-012, the PAC found a City Housing Authority in violation of FOIA for improperly denying a FOIA request for the names and titles of staff members receiving raises and bonuses. The Authority denied the request, claiming the information was protected as private information, would constitute an invasion of privacy if released, and that the Personnel Records Review Act prohibited disclosure of this information. The requester appealed to the PAC, and the Authority further defended its refusal to provide the information by arguing that the requester would use it to harass employees.

Not surprisingly, the PAC found the Authority in violation of FOIA. Consistent with past opinions, the PAC noted that records pertaining to a public employee's compensation (i.e., salary and bonuses) is a public record subject to release. The PAC also rejected the Authority's argument that the information could be used to harass public employees, noting that the requester's motives for requesting public records is irrelevant. In short, the Authority was ordered to release the requested information.

In PAC Op. 16-013, a reporter filed a request for review with the PAC alleging that a City Council violated the Open Meetings Act when it went into closed session to discuss pay raises for City employees. The City Council argued that it was authorized to go into closed session under section 2(c)(1) of OMA, which allows a public body to go into closed session to discuss the "compensation" of employees. The PAC rejected the City's argument, however, finding that this particular exemption only applies to discussion of compensation of specific employees, and the City Council discussed an "across the board" pay raise rather than raises for named employees.  The City also argued that the closed session was authorized under section 2(c)(2) of OMA, which allows a public body to discuss "deliberations concerning salary schedules for one or more classes of employees" in closed session. The PAC rejected that argument, however, because the City Council did not cite that exception when it went into closed session. The PAC concluded that the City Council violated OMA.

The reporter had made an argument that even if the City Council had cited 2(c)(2), it would not have applied because the City Council discussed salaries for non-union employees, and the reporter argued this section only applies to employees subject to a collective bargaining agreement. Because the City Council had not cited 2(c)(2) to go into closed session, the PAC did not issue an opinion on whether a discussion of salary schedules in closed session applies only to employees subject to a collective bargaining agreement or to all public employees. 

Post Authored by Julie Tappendorf

Thursday, December 29, 2016

Illinois Court Rejects Religion-Based Challenge to Community College’s Vaccination Policy

Nicholas George sued Kankakee Community College (KCC) and Presence Hospitals PRV (Presence) alleging violations of his constitutional rights to religious freedom, equal protection, and due process, among others after George (a student enrolled in KCC’s paramedic program) was prohibited from participating in the mandatory clinical portion of a paramedic course operated by Presence because he refused vaccinations against influenza, hepatitis B, measles, mumps, and rubella (MMR). The vaccinations were required by the Presence-operated hospital policy.  Although George had informed the hospital that he was objecting to the vaccinations on religious grounds, he was placed on academic warning and his request for an exemption to the vaccination policy was denied. After George’s complaint was initially dismissed, he appealed to an Illinois appellate court.

With respect to George’s claim that his religious freedom rights were violated, the court found that Presence’s policy did not discriminate against religion since it required all persons interacting with patients receive the MMR vaccination. Although the Illinois constitution protects religious opinions, state actors are permitted to impose regulations that could restrict religious freedom if those restrictions promote the safety interests of the state, as was the case here.

George also alleged that his equal protection rights were violated because other individuals were allowed to work or take classes in the hospital without receiving vaccinations. The court found George’s complaint insufficient since he did not allege that other students in his paramedic course were allowed to participate in clinical rotations without receiving the proper vaccinations.  Even if George could show he was treated differently than other students enrolled in a hospital course, students seeking entry into clinical rotations are not members of a protected class and therefore the court would apply the rational basis test.

George also claims that his procedural due process rights were violated because Defendants failed to give him with notice and a hearing before disqualifying him from the paramedic course. The court also rejected this claim based on its earlier determination that his free exercise rights were not violated.

In short, the appellate court affirmed the trial court’s dismissal of George’s complaint. George v. Kankakee Community College.

Post Authored by Katie O'Grady, Ancel Glink

Wednesday, December 28, 2016

Court Interprets Tort Immunity Act in Connection with Bike Death at Forest Preserve

The estate of Molly Anne Glynn sued the Forest Preserve District of Cook County following Glynn’s death after she was stuck by a tree limb while riding her bicycle on one of the District’s paved bicycle paths. The District claimed it was immune from liability under the Local Government and Governmental Employees Tort Immunity Act. Section 3-107(b) provides immunity for an injury caused by a condition of “[a]ny hiking, riding, fishing or hunting trail,” while section 3-106 provides immunity from ordinary negligence “where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities.”

Plaintiff responded that although the bicycle path itself was recreational property, the tree that struck Glynn was about 7 feet from the bike path in an area of Erickson Woods that was not permitted to be used for recreational purposes, so the District could not rely on the Tort Immunity Act.

The trial court had certified two questions to the Illinois appellate court which were addressed in Foust v. Forest Preserve District ofCook County.

The first question was: 
(1) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of property intended or permitted to be used for recreational purposes pursuant to Section 3-106 of the Tort Immunity Act?
The appellate court first analyzed whether Erickson Woods was permitted or intended for recreational purposes as a whole or whether the intended use of the specific location of the tree was relevant. The court relied on the District’s brochure, which stated that Erickson Woods was suitable for “picnicking, hiking, cycling, inline skating, cross-country skiing, and fishing”, among other activities, to find that the property as a whole was intended or permitted to be used for recreational purposes. As a result, 3-106 immunity applied.

The second question certified by the trial court was: 
(2) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of a trail pursuant to Section 3-107(b) of the Tort Immunity Act? 
With respect to immunity under section 3-107(b), the court determined that the District was not immune because the tree limb was not a condition of the riding trail since it was hanging about the trail and did not fall until it hit the rider. The court stated that had the facts been different (i.e. had the tree limb fallen to the ground and the rider collided with it), it could have been a condition of the path under those facts.  But, since the tree limb was not a part of the trail under these circumstances, the District was not covered by 3-107(b) immunity.

Post Authored by Katie O'Grady, Ancel Glink

Tuesday, December 27, 2016

City Ordinance May Have Established Employment Contract

In 2007, Anthony Boswell was hired as the Executive Director of the City of Chicago’s Office of Compliance.  Prior to this period, the City of Chicago had been involved in a series of lawsuits later known as the Shakman litigation, which resulted in the City's agreement to eliminate political consideration from employment. The federal courts eventually adopted the City’s hiring plan which included Boswell, as the head of the Office of Compliance.  Boswell was appointed for a fixed term to be the head of the Office of Compliance and could not be removed except for cause.

Boswell resigned in 2010 and two years later sued the City of Chicago for breach of contract and promissory estoppel.  Boswell argued his work was met with “resistance and hostility” and he was often subject to “a campaign of petty and overt harassment.”  

The trial court dismissed the case, but the appellate court reversed, finding that Boswell's argument that the City's ordinance created a contract for the executive director position was sufficient to move forward.  In the court's view, the ordinance specified the intent to create a contract with the executive director and the intent of by the city council to set the executive director apart from every other city employee. The court also held that the executive director of an independent compliance office is not a typical "at-will" employee and should be able to rely on some contractual rights in order to exercise independence, discretion, and latitude necessary for this type of position. So, the court reversed the dismissal of Boswell's claims, and the case moves to the next stage where Boswell will have to show that the City's ordinance actually created a contract. 

The court also addressed Boswell’s promissory estoppel claim. It acknowledged that estoppel against public bodies is generally disfavored and allowed in only in rare circumstances, when necessary to prevent fraud and injustice. Here, however, Boswell's claims that the City promised that his office would be independent from political pressures and that he would be in control over his office were sufficient to move his estoppel claim forward. Boswell v. City of Chicago, 2016 IL App (1st)150871.

Post Authored by Megan Mack, Ancel Glink

Wednesday, December 21, 2016

FOIA Lawsuit Not Properly Brought Against Individuals

Linda Korner filed a FOIA request with the Illinois Department of Financial and Professional Regulation in 2013, asking for copies of an "investigative file" regarding complaints she had filed with the Dept. against veterinarians who treated her dog. The Department denied her request. Two months later, a new law was passed making complaints and investigatory materials confidential. 

Korner filed suit shortly thereafter, naming the Attorney General, the Department Secretary, and the Public Access Counselor as defendants. Her complaint asked the court to declare that the defendants violated Korner's rights under FOIA by withholding the documents she requested. She argued that since the confidentiality law did not come into effect until August of 2013, two months after the Department denied her FOIA request, the Department was obligated to provide her with her requested documents.

The defendants filed a motion to dismiss, arguing that her FOIA lawsuit was not properly filed because it only named individuals as defendants. The court agreed, and dismissed her suit because she failed to name any public body as a defendant. Korner v. Madigan, 2016 IL App (1st) 153366 

Post Authored by Julie Tappendorf