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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, September 19, 2018

Reminder of Deadline to Modify Elected Official Compensation

We have reported on this issue in the past, but wanted to send another reminder this year since we are approaching the deadline to change your elected official's compensation in time for next spring's election.
Section 2 of the Local Government Officer Compensation Act states that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.”  50 ILCS 145/2.  While the 180 day calculation seems simple, the actual date will differ depending on the type of government unit.

For example, for townships, it is easy to calculate the 180 days, because all township officials, except assessors, take office on the third Monday in May (May 20, 2019), so the deadline to set compensation for elected township officials is November 21, 2018.  60 ILCS 1/50-15.  

The deadline for setting compensation is more complicated with other local governments that do not have fixed dates for their officers taking office. 

For municipalities, the Illinois Municipal Code states that terms for municipal elected officials commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but then that ordinance cannot fix the date later than the first regular or special meeting in the month of June after the election.  65 ILCS 5/3.1-10-15. So, the date on which new municipal officers will take office will vary from municipality to municipality, depending on local ordinances, meeting dates, and other factors. As a result, a municipality might want to act soon if it wants to change the compensation for its elected officials to ensure that the action takes place at least 180 days prior to the new officers taking office, which could be in April, May, or June.

Post Authored by Julie Tappendorf

Tuesday, September 18, 2018

FCC Releases Small Wireless Facilities Draft Order

On September 5, the Federal Communications Commission (FCC) released a draft Declaratory Ruling and Third Report and Order, focusing on state and local management of small wireless facilities infrastructure deployment. The draft order is scheduled for the FCC’s September 26 open meeting, and if approved would enact substantial new limits on local wireless siting review.

You can read more about the draft order on the Illinois Municipal League's website here

Monday, September 17, 2018

A New Take on Takings?

Rose Mary Knick was not happy with her local township. The township passed an ordinance requiring the owners of private cemeteries to open them to the public. A township official inspected Knick’s property, determined that certain stones were grave markers, and issued a violation for failing to hold open the cemetery to the public. Knick disputed that a cemetery existed on her property, and filed suit alleging that the ordinance was an unconstitutional taking of private property. However, Knick’s federal lawsuit was dismissed on longstanding Supreme Court precedent, as she had not yet sought “just compensation” under state law.

Under the Fifth Amendment, governments are prohibited from taking private property for public uses “without just compensation.” Takings under the Fifth Amendment are a concern whenever local governments physically occupy private property or enact laws that restrict how private property can be used.  

The Supreme Court case of Williamson County v. Regional Planning Commission v. Hamilton Bank of Johnson City (1985) has long governed Fifth Amendment takings claims. In Williamson County, The Supreme Court held that a property owner has not been denied “just compensation” for its property unless they have exhausted their state law remedies to obtain compensation. Now, Knick’s case may upend over 30 years of Supreme Court precedent.

On appeal to the Third Circuit, Knick argued that her facial takings claim was exempt from the exhaustion requirement, and, even if it wasn’t, the court should overlook Williamson County.  The Third Circuit disagreed, finding that her takings claim was not an underlying challenge to the validity of the township’s ordinance, but only a claim for just compensation.  Knick did not allege that that the taking by the township was invalid (i.e, for lack of a public purpose). If she had, her takings claim would be exempt from the state law exhaustion requirement and she could file directly in federal court. The Court held that state law inverse-condemnation mechanisms are better equipped to value what compensation Knick was owed, and that she needed to exhaust those remedies first.

Knick has now brought her dispute with her township to the highest court in the land, and oral arguments are set for October. While Knick’s case turns on seemingly mundane procedural issues, the outcome could have a significant impact on local governments. If the Supreme Court sides with Knick, it will become much easier for property owners to challenge land use regulations as takings. A property owner could file suit directly in federal court, even when the government has not yet refused to pay just compensation. State law remedies (eminent domain/inverse-condemnation proceedings), already exist to ensure just compensation is paid. Allowing these claims to proceed in a second forum may result in a proliferation of takings lawsuits.  It will all turn on Knick and her supposed cemetery.

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, September 13, 2018

FOIA Denial Letters: Don’t Forget to Include Citations and Reasons for Denial!

In Blanco v. Joliet Police Department, after Blanco was arrested by the Joliet Police Department, he sent a FOIA request to the PD asking for any documents and recordings related to his arrest. The PD denied his request under the Juvenile Court Act, and Blanco sued.

Blanco claimed that the PD failed to cite a FOIA exemption and did not prove that the requested records were exempt.  He sought the release of the records and a civil penalty of up to $5,000.  In response, the PD argued that the Juvenile Court Act applied because Blanco was with two minors at the time of his arrest.  The PD also stated that the records contained exempt personal information under 7(1)(c) and 7(1)(d)(iv) of FOIA. The PD further cited 7(1)(a) which prevents disclosure of information prohibited by law and 7(1)(bb), which prevents disclosure of information prohibited by the Juvenile Court Act.  The Circuit Court agreed with the PD and dismissed the case.

Blanco appealed, arguing: 1) the PD failed to comply with FOIA’s requirement that the denial letter include a specific exemption claimed and a detailed factual basis and citation, 2) the PD should have been fined a civil penalty for failing to disclose the requested documents, and 3) the Juvenile Court Act does not prohibit the disclosure of these documents. 

The Court acknowledged that the PD’s denial letter raised questions of whether it complied with FOIA by specifying the exemption and specific reason for the denial. However, the Court noted that even assuming that the denial letter did not comply with FOIA, it is not automatic that the requester would be entitled to have the documents released to him. The Court found that without the record or transcripts on appeal (Blanco failed to provide those to the Appellate Court), it had no way of knowing what happened in the circuit court, so it upheld the Circuit Court's ruling in favor of the PD. 

While the PD was able to get out of possible penalties because of Blanco's procedural deficiencies, this case is a reminder to public bodies of the importance of including the citation for the applicable exemption and detailed factual reasons why it denied the request (whether in whole or in part) when it issues the written denial letter.

Post Authored by Erin Pell, Ancel Glink

Tuesday, September 11, 2018

PAC Issues Binding Opinion on Failure to Respond to FOIA Request

In its 11th binding opinion of 2018, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request, and failing to respond to the PAC's request for review. This opinion doesn't offer any new guidance to public bodies beyond what we've reported on in the past in summarizing similar binding opinions issued by the PAC. PAC Op. 18-011.

Monday, September 10, 2018

Drone On! New Quorum Forum Podcast Episode Released

Whether you think drones are pretty cool, or really creepy, they are increasingly used in commerce and recreation. In our latest podcast episode of Quorum Forum, we discuss how local governments can regulate drones, and appropriately use drones. We also review new laws affecting local government employers and more. 

Tune into this latest podcast episode at Drone on!

If you have ideas for future podcast topics, email us at podcast@ancelglink.com. 

Friday, September 7, 2018

New State Law Preempts Local Government Regulation of Drones

Just last month, the Illinois General Assembly passed a law preempting local government regulation of unmanned aircraft systems (commonly referred to as drones). 

In P.A. 100-735, the state declared that the regulation of drones is an "exclusive power and function of the State." The new law prohibits any unit of local government, including home rule units (except Chicago), from enacting any ordinance or resolution that regulates unmanned aircraft systems. The law became effective August 3, 2018.

So, what does this mean for Illinois local governments? The law does not seem to prohibit units of local government from controlling or regulating drones that fly over their own government-owned property, which would be more of an "ownership" exercise of authority rather than "regulatory" exercise. But, the law does appear to hinder a local government from regulating drones through its exercise of zoning or other powers over private property.

It will be interesting to see how the FAA will react to this state law given that the FAA has enacted a substantial number of regulations on unmanned aircraft systems. 

For more information about this new law and how it affects local government regulation and control of drones, stay tuned for an upcoming episode of our podcast Quorum Forum, titled Drone On. We will update you as soon as that episode is released.

Tuesday, September 4, 2018

7 Years of Municipal Minute!

7 years ago, on September 3, 2011, Municipal Minute went live with its first post:  "Tweeting into Trouble." More than 1,400 posts later, and we are still reporting on new cases, legislation, and issues of interest to local government officials and employees. 

We welcome suggestions from our readers on future topics, and particularly appreciate it when readers alert us to PAC opinions or cases they find interesting and relevant to Municipal Minute.

Thanks for continuing to check in with us at Municipal Minute - we look forward to at least another 7 years of reporting on local government news.

Thanks again!
Julie Tappendorf
Ancel Glink

Thursday, August 30, 2018

PAC Orders Release of Unredacted Copy of Settlement Agreement

In PAC Op. 18-010, the PAC found a public body in violation for FOIA for not disclosing the details about claims that were the subject of a settlement agreement.

A union organization filed a FOIA request seeking records pertaining to a settlement agreement between a school district and its former principal. The district provided a redacted copy of the settlement agreement but did not cite an exemption for the redactions in the initial response. In a supplemental response, the district cited 7(1)(c) claiming that the redacted information was protected because release would constitute an unwarranted invasion of personal privacy.

The union appealed to the PAC, which reviewed the unredacted copy of the agreement. The PAC noted that the redacted information described the nature of the principal's allegations against the district in broad, general terms but did not detail any circumstances or events giving rise to the allegations. The PAC rejected the district's argument that the issues surrounding the allegations were sensitive and highly personal in nature, and determined that the public had the right to see the terms that led to the district paying a settlement to the former employee in exchange for his resignation. The PAC concluded that the redacted information was not exempt under 7(1)(c) of FOIA and ordered the district to release an unredacted copy of the settlement agreement. 

Wednesday, August 29, 2018

Amendments to Library District Trustee Qualifications

Illinois recently enacted P.A. 100-0746 which amends the Public Library District Act of 1991.

The new law provides that a person is not eligible to serve as a library trustee in a library district unless:
  • he or she is a qualified elector of the library district; and 
  • has resided in the library district at least one year at the time he or she files nomination papers or a declaration of intent to become a write-in candidate or is presented for appointment.

 In addition, a person is not eligible to serve as a library trustee for a library district if:
  1. at the time of his or her appointment or filing of nomination papers or a declaration of intent to become a write-in candidate, is in arrears in the payment of a tax or other indebtedness due to the library district; or
  2.  has been convicted of any infamous crime, bribery, perjury, or other felony.

This law applies to trustee candidates who file nomination papers by petition or write-in candidates in the Consolidated Election of 2019 and to all appointees to a vacant trustee position who are appointed after the effective date of this amendment.

The law took effect immediately upon becoming law on August 10, 2018.

Tuesday, August 28, 2018

7th Circuit Upholds Smart Meter Program Against Constitutional Challenge

A group of concerned citizens sued the City of Naperville claiming that the City's smart meter program constituted an illegal search under both the U.S. and Illinois constitutions. Specifically, the citizens argued that the City's collection of data and recording of energy consumption levels at individual homes through the smart meters reveals "intimate personal details of the City's electric customers." The district court had dismissed the complaint and denied the citizens request to amend their complaint. The citizens appealed to the Seventh Circuit Court of Appeals. In a recent decision, the Seventh Circuit found that (1) the smart meter program was a search under the constitution but that (2) the search was reasonable. Naperville Smart Meter Awareness v. City of Naperville, 7th Cir. Aug. 16, 2018.

In determining that the smart meter program was a search, the Seventh Circuit looked at the type of data the program collected. Specifically, the smart meter program collected data at 15 minute intervals, and that data could be used by law enforcement to conclude that an occupant was, for example, using halide lights to grow marijuana based on the amount of energy coming from the home. 

The court did not stop the analysis there, however, Although the program constituted a "search," if that search was "reasonable," then the City could collect the data without a warrant. In this case, although residents have a privacy interest in their energy consumption data, the data is not collected for "prosecutorial intent." Moreover, the City's interest in collecting the data through the smart meter program was in furtherance of the City's modernization of the electrical grid, an important government interest of both the City and the federal government. Monitoring energy consumption is important in reducing outages and strain on the energy grid, as well as reducing costs to consumers, among other important government interests. The court rejected the citizens' argument that the search was unreasonable in this case because the City requires installation of smart meters. 

In sum, although the City's smart meter program was considered a "search," the court found that it was a reasonable one and does not require a warrant.

Post Authored by Julie Tappendorf

Monday, August 27, 2018

New Publication Requirements for Severance Agreements

In January, we reported on HB 4242 that would amend FOIA to require units of local government  to publish notice within 72 hours of approving a severance agreement involving the payment of money to a government employee or contractor accused of sexual harassment or sexual discrimination. 

Last week, HB 4242 was enacted into law as P.A. 1040, with an effective date of August 23, 2018. The approved version of this legislation is changed from what was originally introduced and reported on by Municipal Minute.  We have included a summary of the law in the form enacted below.

As enacted, the law requires the local government to (1) post notice on the government's website and (2) make available to the news media for inspection and copying the following information about the severance agreement and payment within 72 hours of approving the severance agreement:
  1. the name and title of the person receiving the payment;
  2. the amount of the payment; and
  3. that the person receiving payment has been found to have engaged in sexual harassment or sexual discrimination (the original bill only required accusation of this conduct); and
  4. the date, time, and location of the meeting at which the separation or severance agreement was approved.
The new requirements are incorporated into the Local Records Act, the statute that governs records retention and preservation by local governments. (The earlier version of the bill would have amended Freedom of Information Act.) 

Also new in the enacted version are certain exceptions that allow the local government to withhold the information if disclosure would:

1. interfere with pending or actually and reasonably contemplated law enforcement proceedings;
2. interfere with pending or actually and reasonably contemplated legal or administrative proceedings initiated by the complainant;
3. result in disclosure of the complainant's identity (unless he or she consents); or
4. endanger the life or physical safety of the complainant.

The law states that the law does not supersede confidentiality provisions of the severance agreement but also does not limit disclosure of records required to be disclosed under FOIA. It's not clear how these two provisions work in the context of the remainder of this statute or even with each other.

Any local government approving a severance agreement that falls within this new law would be advised to consult with its attorney to ensure compliance with these new requirements, whether that means disclosure of the required information or determination that one of the exceptions apply.