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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, October 23, 2019

PAC Finds Private Company Reports Not Proprietary Under FOIA



In the recent PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. 

The FOIA request came in response to a city ordinance requiring all manganese-bearing materials operators provide the city with quarterly reports concerning the amount of material being handled at their facilities. The city refused to hand over the manganese reports of the private entity, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information.

The PAC rejected the city’s argument that the disclosure of the manganese reports was proprietary and confidential, stating that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

Post Authored by Rain Montero & Julie Tappendorf

Thursday, October 17, 2019

Federal Court Upholds On-Site Drug Use at Safehouse



In a decision that could be of interest to municipalities seeking to combat the growing drug epidemic, a federal court in Pennsylvania recently ruled that safehouses do not violate the Controlled Substances Act when they provide facilities where drugs are used under monitored, sterile conditions. U.S. v. Safehouse.

Safehouse, a nonprofit directed at fighting drug addiction and overdose, sought to open an “Overdose Prevention Site” to offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. Specifically, the Safehouse facility plans to offer medication-assisted treatment, medical care, referrals to a variety of other services, and the use of medically supervised consumption and observation rooms. Drug users who choose to use the medically supervised consumption room will have access to sterilized consumption equipment and fentanyl test strips. Safehouse staff members  supervise the participants’ consumption and are ready to intervene with reversal agents to prevent fatal overdose. Safehouse staff does not, however, handle or provide any of the drugs to the participants.

After Safehouse announced its plans, the federal government filed a lawsuit claiming that the on-site consumption of illegal drugs at Safehouse’s facility violated the Controlled Substances Act, which prohibits any property owner from maintaining a place that facilitates the use of a controlled substance. On October 2, 2019, a federal judge ruled in favor of Safehouse and rejected the government’s contentions. In that ruling, the judge stated that the “the ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it.” The judge reasoned that the stated purpose for Safehouse’s facility was to administer medical care and encourage drug treatment by connecting drug users with social services, and that none of these purposes are consistent with a criminal intent to facilitate drug use.

Post Authored by Rain Montero & Julie Tappendorf


Tuesday, October 15, 2019

Court Addresses Political Retaliation Claims in Connection With Sheriff's Election



In Briggs v. Potter County, a federal court of appeals addressed a political retaliation claim involving correctional officers at a county jail in Pennsylvania after a contentious primary election that involved their boss, the chief deputy sheriff.

Hunt and Briggs—both correctional officers at the jail—ran against Drake, the incumbent Chief Deputy Sheriff. Drake had recently retired from the Pennsylvania State Police and was appointed as Chief Deputy Sheriff, which was how the last three sheriffs were elected. As the primary campaign progressed, Hunt and Briggs were publicly outspoken about this method of electing sheriffs. Hunt went a step further and filed complaints against Drake with the District Attorney, the Pennsylvania Attorney General, and the Potter County Commissioners for engaging in political activity while on the job. Ultimately, Drake won the primary and general elections.

Before Drake took office, but after he won, Briggs received several reprimands, including sleeping during a shift. Eight days after Drake took office, Briggs was terminated. Hunt, the union steward, grieved for Briggs. Hunt was then fired after requesting video footage of other officers sleeping on the job. 

Briggs and Hunt filed suit against Drake and the County. They argued that their First Amendment rights to speech and association regarding political activities were violated. Hunt also claimed whistleblower protections under Pennsylvania law. The district court did not find a viable retaliation claim because of the length of time between the primary election and the firing of both Hunt and Briggs. Further, the court found no whistleblower protection because the correctional officers’ speech did not relate to a matter of public concern.

On appeal, the 3rd Circuit Court of Appeals disagreed with the court’s ruling on the retaliation claims. The appeals court found that Briggs was fired a mere eight days after Drake became sheriff and that Hunt was unlawfully retaliated against for his union activities after grieving Briggs’ termination. The appeals court also found whistleblower protections for Hunt because he spoke on matters of public concern when he filed complaints against Drake, including bringing claims of alleged corruption within the sheriff’s department and campaign violations under county, state, and federal law.

Although the court allowed the claims against Drake and members of his staff to move forward, the court dismissed all claims brought against the County because the officers failed to show a County policy or custom that caused “the specific deprivation of constitutional rights at issue” of the two officers.

Post Authored by Mike Halpin & Julie Tappendorf

Monday, October 14, 2019

Quorum Forum Podcast: Q&A on Recreational Marijuana


Recreational marijuana is coming to Illinois on January 1, 2020, and local governments have a lot of questions about implementation of the new law and how it will impact communities. At this year's Illinois-APA conference in Evanston, Ancel Glink attorneys participated in a Q&A with Illinois planners about recreational marijuana. That Q&A is now available as a "special meeting" on Quorum Forum Podcast Episode 30, which you can access here.

Do you have questions about recreational cannabis? Email us at podcast@ancelglink.com.

Friday, October 11, 2019

No Federal Due Process Liability for Accident in City Swimming Pond


The 7th Circuit Court of Appeals recently dismissed a case against a Wisconsin City involving an accident in a public swimming pond. Estate of Swannie Her v. City of West Bend (7th Cir. 9/6/19)

The City of West Bend, Wisconsin owns and operates a public park that includes a man-made swimming pond. The pond is divided into 3 zones, including a children's play area, a diving area, and a general swimming area. Six year old Swannie Her was at the park with her family when she left the children's play area of the pond to enter the diving area. She was found unresponsive at the bottom of the pond, and later died. Shortly thereafter, her family sued the City in federal court, claiming among other things that the City violated due process when it "created the danger" in operating a man-made swimming pond. The 7th Circuit rejected those claims, finding that the court would not impose a federal due process duty on the City for operating a swimming pond. 

Thursday, October 10, 2019

Ninth Circuit Upholds City's Short Term Rental Ordinance


Last Thursday, the 9th Circuit Court of Appeals dismissed a class action suit brought against the City of Santa Monica that challenged the City’s short-term rental ordinance on the basis of the dormant Commerce Clause. Rosenblatt v. City of Santa Monica.

The City’s ordinance prohibits property rentals of 30 days or less but has an exception for rentals where a primary resident remains on the property. A resident and homeowner in Santa Monica who rents out her house on Airbnb filed a lawsuit against the City claiming that the ordinance directly and indirectly regulated and burdened interstate commerce in violation of the dormant Commerce Clause. She also argued that the real purpose for the ordinance was to increase demand for the City’s luxury hotels that pay a 14% hotel tax to the City after the City experienced sharp declines in hotel tax revenues.

In upholding the dismissal of the case, the Court found that the complaint failed to allege a Commerce Clause violation because the ordinance does not favor in-state over out-of-state interests. The Court noted that the ordinance applies equally to persons nationwide and to Santa Monica residents who rent a home from another resident. Moreover, the Court also found that the home-sharing exception had no obvious advantage for Santa Monica residents over out-of-state homeowners. At most, the Court found that the ordinance resulted in “less accessible, available, and affordable” travel lodging in Santa Monica. However, this was not enough to meet the high burden of a dormant Commerce Clause claim, and there was a strong enough governmental interest in “preserving the City’s available housing stock and the character and charm which result, in part, from cultural, ethnic, and economic diversity of its resident population.”

Post Authored by Rain Montero & Julie Tappendorf

Wednesday, October 9, 2019

Protest Policy at Public Arena Found to Violate First Amendment


An interesting First Amendment case was recently decided by the 3rd Circuit Court of Appeals regarding the constitutionality of a "protest policy" at a publicly-owned arena. Pomicter v. Luzerne County Convention Center Authority

The Luzerne County Convention Center Authority owns the Mohegan Sun Arena, a large event space in Pennsylvania. The publicly-owned arena hosts athletic and other entertainment events. The arena's "protest policy" allows people to express their views, subject to several limitations. These include (1) requiring protesters to stand in designated areas on the concourse, (2) prohibiting protesters from using profanity or vulgarity, and (3) prohibiting any artificial voice amplification. 

An animal rights activist and organization protesting a circus event sued the Authority contenting that the protest policy violated the First Amendment. The district court agreed, finding all three challenged restrictions in the protest policy in violation of the First Amendment. 

The Authority appealed to the 3rd Circuit, which upheld the decision in part and reversed it in part.  First, the 3rd Circuit held that the policy's designated area restrictions were reasonable, as they were intended to maintain orderly and safe movement of patrons into and out of the arena. However, the 3rd Circuit agreed with the district court that the profanity ban was unreasonable and violated the First Amendment, finding that the profanity ban only applied to protesters and was not applicable to patrons attending the sporting and other events at the arena.  Similarly, the 3rd Circuit struck down the amplification ban, finding that the Authority did not provide any reasonable justification for the ban.

Tuesday, October 8, 2019

Court Upholds Real Estate Transfer Tax on Transfers to/From Freddie Mac/Fannie Mae


The City of Chicago, like many other Illinois home rule municipalities, imposes a real estate transfer tax on the transfer of real property in the City. A group of residents recently challenged the City's imposition of that tax on transfers to and from Freddie Mac and Fannie Mae, arguing that the tax was preempted by federal law that expressly exempts governmental entities from state and local taxation. The City defended its tax, arguing that these organizations were not "governmental bodies" so they were not exempt from taxation. In a recent ruling, the Appellate Court agreed, upholding the circuit court's dismissal of the lawsuit. Trilisky v. City of Chicago.

Monday, October 7, 2019

Court Upholds City's Amusement Tax on Video Streaming Services


The City of Chicago has enacted a 9% "amusement tax" which it imposes on a wide variety of "amusements" in the City of Chicago. In 2015, the City issued Ruling 5, which expanded the scope of the amusement tax to include amusements that are delivered electronically to patrons in the City, which include the privilege of watching electronically delivered television shows, movies, or videos; the privilege of listening to electronically delivered music; and the privilege of participating in games, online or otherwise. 

A group of Chicago residents challenged the constitutionality of the amusement tax as it applied to video streaming services such as Netflix, Hulu, and similar services. Specifically, the residents claimed that the tax was invalid because:

(1) streaming services are outside the scope of the City’s amusement tax ordinance; 
(2) the City taxes streaming services differently than it taxes equivalent in-person amusements in violation of the Illinois Constitution’s uniformity clause; 
(3) applying the tax to streaming services imposes a discriminatory tax on electronic commerce in violation of the federal Internet Tax Freedom Act (ITFA); and 
(4) the City is taxing activity outside its borders in violation of the U.S. Constitution’s commerce clause. 

The Cook County Circuit Court ruled against the residents and upheld the tax, and the residents appealed. The Appellate Court upheld the City's imposition of the tax on video streaming services, rejecting the residents' arguments and finding the ordinance valid. It was significant that the residents challenged the ordinance on "facial" grounds, the most difficult challenge for the residents to prove because the City only had to show any circumstance where the ordinance could be validly applied. Labell v. City of Chicago.

Friday, October 4, 2019

Quorum Forum Podcast: Live from the IML 2019!


Ancel Glink's own podcast, Quorum Forum, just released a new episode: Episode 29: WAGERING, WATCHDOGS, AND WEBSITES - LIVE FROM IML 2019! 

Details about this episode are below:

The latest Quorum Forum podcast was recorded live from Kitty O’Shea’s at the 2019 Illinois Municipal League Conference! State Rep. Chris Welch and Kurt Asprooth join us to discuss sports betting and gaming, while Keri-Lyn Krafthefer discusses government transparency and watchdog groups. Finally, Matt DiCianni takes a look at the future of local government websites. 

You can access Episode 29 here.

What interesting things did you learn at IML this year? Email us at podcast@ancelglink.com! 

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Wednesday, October 2, 2019

PAC Again Addresses "Resident Only" Public Comment in Binding Opinion


More from the PAC Office of the Illinois Attorney General - this time, a binding opinion on public comment at meetings. 

In PAC Op. 19-009, the PAC found a city in violation of the Open Meetings Act for prohibiting a member of the public from addressing the city council at a council meeting. A member of the public claims she stood up to speak at a city council meeting during public comment but was told by the mayor that he would not allow her to speak because she was not a city resident. 

She subsequently filed a complaint with the PAC claiming the city council violated the OMA by not letting her speak at the meeting. The PAC first noted that the city council had not adopted public comment rules so the council could not impose a restriction on public comment. The PAC rejected the city's reliance on Roberts Rules of Order as its public comment rules since the city could not identify specific rules addressing public comment at meetings. Since it had no rules in place, the city council could not impose a "resident only" restriction. But, even if the if the city council had adopted a "resident only" rule for public comment, the PAC stated that such a rule would violate the OMA because the public comment requirement of the OMA allows "any person" to address the public body, whether they are a resident or not. 

The PAC could have left its opinion there but instead it again seemed to engage in a First Amendment "designated forum" analysis of proper "time, place, and manner restrictions." Frankly, it isn't clear how the First Amendment would apply to this particular situation. But more concerning to this author, however, is that the PAC seems to be overstepping its statutory authority over OMA and FOIA issues by wading into constitutional issues best left to the courts. All that being said, the PAC has been clear in the past that public bodies should not adopt, impose, or enforce "resident only" restrictions or preferences for public comment at meetings, so that rationale is consistent with prior opinions.

Tuesday, October 1, 2019

PAC Publishes Index of Binding Opinions 2010-2019


I was checking out the PAC website to see if they had published any new binding opinions and discovered an index published by the PAC of all of its binding opinions from 2010 to-date. This is a very helpful resource for public bodies because it organizes the binding opinions by category, making it easier for a public body to find out whether the PAC has issued an opinion on a particular topic. 

For example, if a public body wants to know whether the PAC has issued a binding opinion on the authority to charge for copies, whether resumes are releasable, or how the "preliminary records" exemption has been applied, it can consult the FOIA index to identify opinions in which these topics are discussed. Since all of the PAC's binding opinions are available on the Attorney General's website, the public body can just pull up the cited PAC opinion. Or, if you want to find summaries of all of the PAC binding opinions from 2010-2018, you can find them right here on the Municipal Minute blog. Yep, we've been around that long!

You can access the FOIA index here and the OMA index here.