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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

Friday, August 17, 2018

Elected Township Officials Prohibited From Being Employed by Township

Given the activity at the Illinois General Assembly, we will have a number of new laws to report on over the next few days/weeks. Today, we report on a new law affecting elected township officials.

Pursuant to P.A. 100-868, township officials who are elected to a township position (or appointed to fill a vacant elected position) are prohibited from also being employed by the township. The prohibition applies to township trustees, supervisors, highway commissioners, clerks, assessors, and collectors. The law becomes effective January 1, 2019.

Post Authored by Julie Tappendorf

Thursday, August 16, 2018

Facebook Post Threatening Witnesses Costs Poster $17,000 in Sanctions

In a recent lawsuit that alleged employment discrimination and retaliation against a government employer, the court ordered the plaintiff to pay just under $17,000 in sanctions for posting threats on Facebook targeted at potential witnesses in her lawsuit. Emerson v. Dart, (7th Cir. Aug. 14, 2018).

Emerson, a correctional officer in Cook County, Illinois, filed a lawsuit against the County alleging retaliation in violation of her civil rights suit. The case proceeded to discovery. Shortly after learning the County was questioning co-workers as potential witnesses, she posted to a Facebook group shared by more than 1,600 employees of the Cook County Department of Corrections the following:
To my fellow officers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES, (1) IS A SGT, (2) OFFICERS, (1) OPR INVESTIGATOR, on the job 18mths, this fight is from 2009 & I’ve been off since 2012, sooooo do the math. Yes, I will definitely put your name out there in due time [emoji]. This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL. SO GLAD THAT THE ARROGANCE OF THIS EMPLOYER HAS THEM BELIEVING THEIR OWN [emoji]
The County asked the judge for sanctions against Emerson for witness tampering. The circuit court  ruled in the County's favor and ordered Emerson to pay just short of $17,000 in sanctions to the County (the amount the County incurred in attorneys' fees relating to the misconduct). 

On appeal, the Seventh Circuit Court of Appeals upheld the sanctions award, finding Emerson's Facebook post to be a "bald effort to keep witnesses from testifying." The appellate court also upheld the amount of the sanction, finding the County's report of time spent litigating the sanctions issue to be acceptable.

Facebook may be "free," but that doesn't mean certain conduct on Facebook won't cost you.

Post Authored by Julie Tappendorf

Wednesday, August 15, 2018

Government Severance Pay Act Becomes Law in Illinois

Yesterday, the Government Severance Pay Act became law when it was approved by the Illinois Governor. P.A. 100-895. We reported on this legislation when the bill was introduced earlier this year.

Under the new law, any covered unit of government that enters into a contract or employment agreement, or renews or renegotiates an existing contract or agreement, with an officer, agent, employee, or contractor must include the following provisions in the contract:

(1) a requirement that severance pay may not exceed an amount greater than 20 weeks of compensation; and
(2) a prohibition on payment of severance pay if the individual has been fired for misconduct by the unit of government.

Misconduct is defined in the new law to include, among other things, the following:
  • conduct that is a deliberate violation or disregard of reasonable standards of behavior of an employee
  • intentional and substantial disregard of the employer's interests or the employee's duties
  • chronic absenteeism or tardiness in deliberate violation of known policy after a reprimand
  • willful and deliberate violation of a state standard or regulation
  • violation of the employer's rules
  • other conduct, including criminal assault or battery on an employee, customer, invitee or abuse or neglect of someone under the employee's professional care.
The Act applies to all state agencies, units of local government (i.e., counties, municipalities, townships, special districts), school districts, and other bodies created by state statute or state constitution.

The new law does not appear to apply to existing employment agreements between government bodies and employees, although a unit of government would have to comply with the new contractual requirements when renewing or renegotiating an existing employment agreement. That will certainly affect the negotiations between employers and employees in any renewal of an existing employment agreement that includes a severance pay provision in excess of 20 weeks.

The text of the new law (without definitions) is set out below:
Section 10. Severance pay.

(a) A unit of government that enters into a contract or employment agreement, or renewal or renegotiation of an existing contract or employment agreement, that contains a provision for severance pay with an officer, agent, employee, or contractor must include the following provisions in the contract:
     (1) a requirement that severance pay provided may not exceed an amount greater than 20 weeks of compensation; and
    (2) a prohibition of provision of severance pay when the officer, agent, employee, or contractor has been fired for misconduct by the unit of government.
(b) Nothing in this Section creates an entitlement to severance pay in the absence of its contractual authorization or as otherwise authorized by law.
The law takes effective January 1, 2019.

Post Authored by Julie Tappendorf

Monday, August 13, 2018

Top 10 Posts of 2018 To-Date

It's been awhile since we've done a "top 10" list of the most popular blog posts. Today, we highlight the 10 most read posts of 2018, to-date, with a few updates:

Bill Would Prohibit Use of Public Funds For Employee Professional Development and Training Expenses

Update: This was by far the most read post of 2018, and the one that generated quite a bit of feedback from Illinois government officials and employees. As of 8/6/18, this bill doesn't seem to be active since it was referred to committee on 1/16/18. 

President's Blocking of Twitter Users Found Unconstitutional

Update: The White House unblocked the Twitter users following this ruling, but also appealed the decision, so stay tuned for a follow up.

Bill Proposes Local Government Email Act

Update: This bill had sat in committee since April until a couple of weeks ago when a new co-sponsor was added so there may be some life to this bill.

New OMA and FOIA Bills Introduced

Update: Neither of these bills have seen any activity or movement since April/May.

Teacher Fired for Social Media Posts About Student

Police Officers' Emails on Private Devices Subject to FOIA

Alderman Texts and Emails on Private Devices Not Subject to FOIA

City Not Liable for Flooding on Residents' Property

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

New Law Allows Website Posting for Prevailing Wage Ordinances

Friday, August 10, 2018

From The Workplace Report: NLRB Offers New Guidance Regarding Employee Handbooks

From Ancel Glink’s sister employment law blog, The Workplace Report With Ancel Glink: NLRB Offers New Guidance Regarding Employee Handbooks.

NLRB General Counsel Peter Robb recently issued a memorandum outlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision (365 NLRB No. 154 (Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here.

The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules.

Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh any relatively insignificant restrictions on those rights. Some of the examples mentioned in the memo include:
  • Rules prohibiting uncivil behavior (like the use of disparaging or offensive language)
  • No-photography rules and no-recording rules
  • Rules against insubordination or other on-the-job conduct that negatively affects the workplace
  • Disruptive behavior rules (like creating a disturbance or causing problems with clients or co-workers)
  • Rules protecting confidential, proprietary, and customer information or documents
  • Rules against defamation or misrepresentation
  • Rules against using employer logos or intellectual property
  • Rules requiring authorization to speak for the company
  • Rules banning disloyalty, nepotism, or self-enrichment
Category 2 (Case-by-Case) Rules: These rules are not clearly lawful or unlawful. Rather, the employer’s and employees’ interests must be weighed on a case-by-case basis to determine whether the rule is justified. Examples of such rules include:
  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in or voting for a union
  • Confidentiality rules regarding employer business or employee information (as opposed to confidentiality rules regarding customer or proprietary information [which are generally lawful], or confidentiality rules directed at employee wages, terms of employment, or working conditions [which are generally unlawful])
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of fellow employees)
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark)
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations)
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)
Category 3 (Unlawful) Rules: These rules are generally unlawful because they restrict the employees’ rights severely enough to outweigh any potential employer justifications for them.  The memo provides only two examples of rules that fit this category:
  • Confidentiality rules specifically regarding wages, benefits, or working conditions
  • Rules against joining outside organizations or voting on matters concerning the employer
Although these guidelines do not apply to government employers, state labor boards often refer to NLRB guidelines and rulings in evaluating government rules. So, it might be worth taking a look at your employee handbook to see if you need to update or modify it.

Original Post Authored by Matt DiCianni, Ancel Glink

Thursday, August 9, 2018

School Security Agent Not Entitled to PSEBA or PEDA Benefits

In a recent case, an appellate court denied PSEBA and PEDA benefits to a school security agent/truant officer, finding that the school employee was not a "law enforcement officer" entitled to benefits under either state law. Stimeling v. Peoria Public Sch. Dist. 150.

The Peoria Public School District employed security agents as part of the school's "police department." After learning that it had no authority to operate a police department, the District inactivated the police department and stopped providing police training to its security agents. One of its security agents incurred an injury while on duty, and filed for benefits under the Public Safety Employee Benefits Act (PSEBA) and the Public Employee Disability Act (PEDA). The District denied the request, and the employee filed a lawsuit, arguing that he was a "law enforcement officer" under both statutes and was, therefore, entitled to benefits.

Both the trial court and the appellate court ruled against the employee, finding that he was not a police officer or law enforcement officer under either statute. The appellate court noted that the District was not statutorily authorized to establish a police department or to employ law enforcement officers. As a result, the employee was not an eligible employee entitled to benefits under either statute.

Wednesday, August 8, 2018

Did You Hear the One About the Priest Who Walked into a Bar?

For decades, the Illinois Liquor Control Act contained restrictions against locating a new licensed establishment in proximity to a church or school.  235 ILCS 5/6-11.  Despite this restriction, Section 6-11 of the Liquor Control Act also contained dozens of exceptions to this rule which were enacted by the General Assembly and approved by a sitting Governor.  That’s right – each time a business which planned to sell beer, wine or liquor wanted to operate near a church or school, it took an act of the legislature to grant permission.

Finally, by broad bipartisan votes, the State of Illinois has granted local liquor control commissioners the ability to relax this restriction.  Public Act 100-663, which became law last week, allows a local liquor control commissioner to grant an exemption to the prohibition if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.

So, if a community wants to exercise greater local control, it must adopt an ordinance that delegates authority to the Mayor or Village President (local liquor commissioner) to grant exceptions to the proximity rules described in Section 6-11. The law does not describe any limitations on the scope of local control, so the exceptions granted by the local liquor commissioner may be partial or complete and can be subject to conditions.

Post authored by Adam Simon, Ancel Glink

Tuesday, August 7, 2018

City and Park District Not Liable for Alleged Defective Design of 606 Trail

Guzman was running on the Bloomingdale Trail (also known as the “606 Trail”) when a bicyclist struck her from behind and she was injured. Guzman sued the Chicago Park District, the City of Chicago, the bicyclist that struck her as well as Collins Engineering, the project manager for the development of the 606 Trail.

The Park District argued the case should be dismissed Section 3-106 of the Illinois Tort Immunity Act. That statute says that a public entity or employee will not be liable for an injury if the claim is based on a condition of any public property intended or permitted to be used for recreational purposes except where the public entity is guilty of willful and wanton conduct. The circuit court agreed and dismissed the case, and Guzman appealed.

Although Guzman admitted that the 606 Trail is public property used for recreational purposes, she argued that the design of the trail was too narrow to provide sufficient space for users to pass one another, is not a “condition” within the meaning of the Tort Immunity Act. Guzman specifically argued that the term “condition” refers to things that are actually on the trail itself, such as snow, but her argument was that the 606 Trail design was defective.

On appeal, the appellate court examined a series of cases where the claims were not based on activities conducted on recreational property, but rather based on the recreational property’s design or construction, including claims that a sidewalk was built too high, a midblock crosswalk was negligently misplaced and that a golf box tee was placed in a dangerous location for spectators.  In all of these cases, courts have found that immunity applied to bar lawsuits related to the construction of recreational property. Based on these cases, the court that the Tort Immunity Act barred Guzman’s claims of defective design and both the Park District and City of Chicago were immune from liability.

Post Authored by Christy Michaelson, Ancel Glink

Monday, August 6, 2018

New Podcast: What's the Big Deal with Small Cells?

The increased demand for wireless services means that street lights, utility poles, buildings, and more are now home to small wireless facilities. Ancel Glink's telecommunications attorney Adam Simon stops by a regular meeting of our podcast, Quorum Forum, to discuss how municipalities can regulate these small cells. We also go "In the Zone" with Ancel Glink attorney Greg Jones for the latest in economic development from Ancel Glink's land use newsletter.

Questions? Show ideas? Email us podcast@ancelglink.com!

You can also subscribe to "In the Zone," Ancel Glink's land use newsletter at inthezone@ancelglink.com

Monday, July 30, 2018

Court Finds Requests for Electronic Records Are Not Unduly Burdensome

Those of you who regularly read the blog or attend our FOIA speeches are likely familiar with the case of Hites v. Waubonsee Community College. We previously reported on the appellate court’s 2016 decision in that case, in which it found that individual data points within an electronic database are public records subject to FOIA. The appellate court also remanded the case to the trial court to address the College's argument that complying with the following 7 FOIA requests qualified as "unduly burdensome": 

1) the zip codes of people taking the National Safety Council’s Defensive Driving Course in 2011, 
2) the zip codes of people taking GED classes in fall of 2011 at the Aurora campus, 
3) the zip codes of all people taking ESL classes in the fall of 2011 at the Aurora campus, 
4) the raw input for the ”city” field on the student registration forms for all students in the fall 2011 at the Aurora campus, 
5) the raw input for the “county code” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, 
6) the raw input for the “US citizen” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, and 
7) the raw input for the “Are you in the United States on a visa-nonresident Alien” field on the student registration forms for all students in the fall of 2011 at the Aurora campus.

Trial Court Ruling

Back at the trial court level, the College argued that compliance with these remaining 7 requests would be unduly burdensome because the College's database system is complex and the data did not reside in any single database or report. and because of the amount of staff time required to respond to all of these requests.

In considering the "unduly burdensome" argument, the court looked at the following three elements:

1) compliance with the request as stated must be unduly burdensome,
2) there is no way to narrow the request, and
3) the burden on the public body outweighs the public interest in the requested information. 

The trial court found that the 7 requests were unduly burdensome as testimony showed that a response to all requests would like take over 20 personnel days, which would impede College staff’s ability to perform their other duties.  Further, the trial court found that some of the requests would require searching databases that were not in the control of the College.  The trial court also found that the burden on the College outweighed the public interest because the requester only sought the demographic information to speculate about what businesses the students might frequent.

Appellate Court Ruling

Hites (the requester) appealed the case, and the appellate court reversed and remanded the case to the trial court, finding that the record did not support the trial court's ruling in favor of the College that response to the FOIA request would be an undue burden. Hites v. Waubonsee Community College, 2018 ILApp 2d 170617, July 20, 2018.

With regard to the first element - that compliance would be unduly burdensome - the appellate court found that the College’s alleged burden was improperly padded with time that staff would spend on other activities.  The appellate court determined that the record did not show that It would take weeks or even months to respond to the requests.   Further, the appellate court found that the record did not show that outside databases would need to be searched to obtain the requested information.  Rather, the information could all be retrieved from two databases which were under the control of the College. 

 As for the second element - that there is no way to narrow the request - the appellate court looked to Section 3(g) of FOIA, which requires that the public body extend the requester an opportunity to narrow the request.  The court found that the trial court erred as it did not make a necessary finding as to whether the 7 requests could be narrowed. 

For the third element - whether the public interest in the records outweighs the burden on the public body - the appellate court noted that while the trial court only identified one public interest - to learn student demographics in order to speculate about business, other public interests were contained in the record.  The appellate court noted that the requester sought the data to determine whether the College was fulfilling promises regarding the construction of a new campus, whether it was working in the City’s best interest, whether certain agreements between the College and the City needed to be revisited, and whether students were being sent to campuses outside Aurora.  The appellate court found all of these reasons to be legitimate public interests, which do outweigh the burden on the public body.  

This case is significant as it shows the high burden that must be met for a public body to claim records are unduly burdensome.

Post Authored by Erin Pell, Ancel Glink

Friday, July 27, 2018

Cook County Proposes 2 Referenda Questions Regarding Minimum Wage and Sick Leave

In 2016, the Cook County Board of Commissioners passed two ordinances regarding minimum wage and sick leave. Both ordinances took effect last summer, with the minimum wage increase being phased in over the next few years. Many Cook County municipalities (over 100) have chosen to "opt out" of the two ordinances by passing their own ordinances to that effect. 

This week, the Cook County Board of Commissioners took action to place two advisory referenda on these two topics on the November ballot directed at municipal voters. Although the referenda are advisory only, Cook County municipalities should be aware of these ballot questions as there may be questions from municipal officials and citizens as to what effect these questions might have if they are approved. In short, advisory referenda have no legal, binding effect.  

The ballot questions read as follows: 

(1) “Shall the minimum wage in your municipality match the $13 per hour Cook County minimum wage law for adults over the age of 18 by July 1, 2020, and be indexed to the consumer price index after that?”
 [ ] Yes
 [ ] No
(2) “Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?”
[ ] Yes
[ ] No

Wednesday, July 25, 2018

Court Dismisses Zoning Challenge as Moot

A property owner filed a lawsuit against a municipality challenging a city's amendment to its zoning ordinance to require a special use for residential uses on property zoned in the light commercial zoning district. The court dismissed the lawsuit because the owner failed to exhaust his administrative remedies by not applying for a special use permit. The owner then filed an application for a special use permit, but the city rejected it because it was defective. In 2017, the city rezoned his property, which rezoning contained the same residential zoning restrictions as the previous zoning code amendment.  

Subsequently, the owner filed a second lawsuit against the city claiming that the zoning amendment passed by the city in 2013 was invalid because he did not receive individual notice of the meeting of the city council where the 2013 amendment was adopted. The trial court dismissed the case, and the appellate court affirmed, both finding the owner's case moot because even if the 2013 amendment were held invalid, the 2017 rezoning decision would remain in effect with the same residential restrictions being challenged by the property owner.

Although the substance of the case is mostly procedural in nature, the appellate court's statements on the effect of a city's zoning approvals is interesting. The owner argues that he has a right to develop his property consistent with the zoning that existed when he bought the property. The court rejected that argument, finding that an owner has "no constitutionally protected interest" in the continuation of zoning. The other important issue is that the court acknowledges that the property owner should not be able to challenge a special use permit requirement without having gone through the special use permit process.

Post Authored by Julie Tappendorf