Tuesday, November 24, 2015

Judge Gets Reprimanded for Facebook Posts About Cases

In another installment of "be careful what you post on social media," today's post involves a Minnesota judge who was reprimanded for posting online about his trials.  Here are a couple of examples of his posts:

In August of 2014, he posted on his Facebook page:
My day yesterday in the Hennepin County District Court in Minneapolis: . . . Criminal Vehicular Homicide where defendant stoned on Xanax supplemented it w/a lot of booze and then drove wrong way down a freeway colliding w/an innocent citizen driving the right way down the same freeway killing him. . . . and most interesting -- three kidnappings . . . where the three were physically tortured to try and find the drugs.
In July, 2015, he posted the following after the defense counsel had an apparent panic attack and was taken away by ambulance:
Now we are in chaos because defendant has to hire a new lawyer who will most likely want to start over and a very vulnerable woman will have to spend another day on the witness stand. . . . I was so angry that on the way home I stopped to see our District Administrator and told him, “Michael, you are going to have to just listen to me bitch for awhile.” . . . [W]e know the new lawyer (probably quite justifiably) will be asking for another continuance. Terrible day!!!
A complaint was filed against the Judge with the Board on Judicial Standards. After investigation of the complaint, the Board issued a final reprimand, which you can find here. The Board determined that the Judge had violated various judicial rules of conduct, including the requirement that judicial duties take precedence over a judge's personal activities and that a judge be dignified and courteous with litigants, among others. 

The Judge defended his actions by stating that he believed his Facebook posts could only be viewed by his 80 "friends," consisting of family members, friends and members of his church. However, the Board determined that they were, in fact, available to the public. 

Although this case dealt specifically with the judicial rules of conduct, the analysis is a good lesson for everyone about the public nature of social media. Although the Judge thought his posts were only seen by his Facebook friends, they were more widely accessible to the public. Even if the Judge had employed strict privacy settings, that could not protect him against a complaint filed by one of his Facebook "friends" - Social Media 101 says your co-workers are the most likely to rat you out to your supervisor.  

The lesson of the day is a very simple one - be careful what you post about your job on social media.
Post Authored by Julie Tappendorf

Monday, November 23, 2015

ADA/FHA Case by Owner of Drug and Alcohol Facility Not Ripe

The authority to zone and regulate land use is one of a local government’s most significant powers. Although that authority is generally derived from state statute or state constitution, it may be limited by applicable federal laws, including the Americans with Disabilities Act (“ADA”) and Fair Housing Act (“FHA”). These two laws were the subject of a land use dispute between Safe Harbor, the owner and operator of an “executive retreat for individuals recovering from alcohol and drug addiction,” and the Town of East Hampton.
Safe Harbor sought approval to open its drug and alcohol rehabilitation facility in a residential area in East Hampton. The Town told Safe Harbor that it would have to apply for a special permit because the use was not permitted by-right in the zoning district. Safe Harbor appealed to the Zoning Board, which agreed with the Town’s interpretation.  Safe Harbor then sued, claiming that the Town violated the ADA and FHA by not providing it with a reasonable accommodation to allow it to operate its facility on its property.
The case made its way to the Second Circuit Court of Appeals. Safe Harbor Retreat, LLC v Town of East Hampton, No. 15-797-cv (2d Cir. 10/23/2015).  The Town argued that Safe Harbor’s case  should be dismissed because its claims were not ripe  since it had never applied for and been denied a special permit.  The Court of Appeals agreed, and dismissed Safe Harbor’s case as unripe. The Court also determined that Safe Harbor had failed to adequately state a claim that East Hampton’s zoning regulations were discriminatory on their face or as applied to Safe Harbor. 
Post Authored by Julie Tappendorf

Friday, November 20, 2015

Local Government Law Institute December 4th!

Next month, the Illinois Institute for Continuing Legal Education (IICLE) will be presenting its annual "Local Government Law Institute" in Chicago. This popular program is geared towards lawyers with an interest or practice in local government law. Ancel Glink's Julie Tappendorf is one of the faculty members.

The program is scheduled for Friday, December 4, 2015. Registration starts at 8:00 a.m., and the program begins at 8:45 a.m.  The last session ends at 4:45, immediately followed by a cocktail reception that you won't want to miss.

This year's sessions and topics include the following:

  • Legislative & Case Law Update
  • Intergovernmental Cooperation & Dysfunction
  • Lunch with the Masters
  • From Body Cameras to Twitter Wars: Risk Management in Modern Law Enforcement
  • Advanced Governance: Practice, Procedure, Communication & Technology
  • Modern Economic Development Trends for Local Government
The program includes lunch and a cocktail networking reception for participants.  Previous attendees have raved about the content of the program, and particularly appreciate the interactive approach to each session.   

For more information about the program and to register, click here.

Thursday, November 19, 2015

Ancel Glink Defense E-News Released

Ancel Glink's litigation team just released the fourth quarter edition of its Defense E-News.  This edition contains summaries of a number of significant state and federal cases that affect local governments including decisions involving excessive force, religious discrimination, land use, and school bullying among many others. The newsletter also provides updates on upcoming events and activities involving our litigation attorneys. You can find this edition of Defense E-News on Ancel Glink's website, in the Resource Center. Other editions of this newsletter, and our land use newsletter, can also be found in the Resource Center under the heading "Newsletters."  

Tuesday, November 17, 2015

City's Revocation of Medical Marijuana Dispensary Approval Overturned

In 2013, Illinois passed a law legalizing medical marijuana but that didn’t translate to immediate sales of medical marijuana. That's because Illinois law mandates that dispensaries only sell marijuana grown in Illinois at licensed cultivation centers. Crops take time, and the first of those marijuana crops are just now being cultivated for sale in licensed dispensaries. 

That delay nearly cost a licensed dispensary in Peoria the right to open its business. In 2014, the City granted a zoning certificate to a licensed dispensary. A year later, the City revoked its previous approval based on its reading of the City Code that the dispensary’s zoning certificate had expired because the business did not open within one year. The dispensary appealed to the City’s Zoning Board of Appeals. The City defended its decision by arguing that the certificate expired by its own terms on September 14, 2015, when the dispensary did not open for business.  According to the City Attorney (arguing on the City's behalf), “It’s tough to be a marijuana dispensary if you have no marijuana.” 

The ZBA rejected the City’s argument and reversed its decision to revoke the zoning certificate last week. The ZBA based its ruling in part on the fact that the dispensary could not have opened because there was no product to sell, through no fault of the dispensary. According to news reports, the dispensary is set to open in early December.

Post Authored by Julie Tappendorf

Friday, November 13, 2015

Facebook Has Special TOS for Local Governments

Today, I have another Facebook tip for local governments with official Facebook pages. As those of you on Facebook already know, it is very easy to set up a Facebook page, whether a personal or official one. But how many of you have read Facebook's TOS (terms of service)?  Anyone? Facebook's TOS or SRR as Facebook calls it, is pretty extensive, and applies to all users.  There are, however, a few special rules for state and local governments, which you can find on Facebook's site here.  

One important term to note is special government term no. 5, which requires a state or local government to post a disclaimer on its official Facebook page referring visitors to the government's official website (if it has one).  
5. Disclaimer Requirement
If you have an official website, your Page must contain, in a prominent location: "If you are looking for more information about [Government Entity], please visit [website URL]."
The other special terms relate to how and where disputes with Facebook will be handled.  

Post Authored by Julie Tappendorf

Wednesday, November 11, 2015

IDOT Violated FOIA in 11th PAC Opinion of 2015

Just last month we wrote about the Public Access Counselor office citing the "unduly burdensome" exemption under FOIA in response to a request for copies of that office's advisory opinions.  The PAC had advised the requester that because there were over 3000 records that would require review and redaction, it would be unduly burdensome for the PAC to comply with the request.  As we noted in our post, because the public body involved in that request was the same office that enforces FOIA, the response could provide some guidance on what the PAC finds "unduly burdensome."  

This week, we got a little more insight into the "unduly burdensome" exemption in a newly issued binding PAC opinion.  PAC Op. 15-011. Here, on June 22, 2015, a labor union representative filed a FOIA request with IDOT for all certified payrolls for projects awarded in Christian County from June 2014 to present. On July 22, 2015, IDOT responded that it had received the request on July 11, 2015, and requested that he narrow his request to specific contracts as complying with the original request would be unduly burdensome. The requester refused to narrow his request, and instead filed a request for review with the PAC. IDOT defended its actions with the PAC by stating that each certified payroll record contained a variety of exempt information, including social security numbers and other private information, and redaction of the hundreds of pages of records would be a very labor intensive project. 

The PAC first determined that IDOT failed to respond to the FOIA request within the statutory time frame. Under section 3(d), a public body that "fails to respond to a request received may not treat the request as unduly burdensome under subsection (g)." Although IDOT did respond to the request, the PAC interpreted this sentence to also apply to untimely responses. As a result, IDOT was precluded from treating the request as unduly burdensome. 

Even though the PAC could have concluded its opinion there, it elected to address the issue of whether IDOT could have denied the request as unduly burdensome had it issued a timely response. The PAC noted that this required it to determine whether the public interest in disclosure of the records outweighs the burden of compliance on the public body. In this case, the PAC found that redaction of the certified payroll records would not be unduly burdensome because section 2.10 of FOIA expressly provides that certified payroll records are public records, subject to redaction. Although the PAC recognized that review and redaction of these records was a "burden" on IDOT, it did not find that burden to be undue, in light of the public interest in a union having access to these records.  Specifically, the PAC noted that:
Compliance with any FOIA request imposes some administrative burden on a public body. The issue is whether the public interest in disclosure justifies the burden.
In short, the PAC found IDOT in violation of FOIA.  That makes it 0-11 for public bodies in 2015.

Tuesday, November 10, 2015

Fire Chief’s Message to Staff About Possible Layoffs Not Protected Speech

By now, we know that the speech of a public employee about their employer is not protected if the content of the statements were related to their duties or if it reflects personal opinion resulting in disruption to the operations of the employer. Enter the Fire Chief in Lincoln Heights, Ohio.

Evidently, Lincoln Heights, Ohio is a hotbed of litigation, so much so that the liability insurance risk pool to which it belonged notified it that it was terminating the Village’s membership in the pool because of the excessive number of claims against it. Fire Chief Jonah Holbrook  received a copy of this letter from Village Manager Stephanie Dumas with a warning from her that the Village might have to eliminate its Fire Department. Holbrook quickly passed a copy of that letter along to the members of the Fire Department, stating that they might lose their jobs and they should attend the upcoming Village Board meeting.  The issue was discussed at the Village Board meeting a few days after Holbrook’s message and Manager Dumas reported on the issue in open session. He also posted the following on his Facebook page a couple of days later:
To all of the current/past employees who support the fire department. As some of you may know, the fire department, police department and maintenance department are in jeopardy. Due to insurance related issues that were made public at last Monday's (7/28) council meeting. Council has the meetings recorded by video and there is online access, but I do not know the site. As of now, there is a chance the departments will face even more severe issues, as of October 2nd, 2014 if they cannot find another insurance company.  
Holbrook filed his First Amendment claim, alleging that he was discharged because he engaged in protected speech. The court, however, ruled against him, finding that his statements were not made as part of his job and any concern for the community that might lose its fire department. Instead, the court determined that his statements were based on a personal concern for members of his staff and others.  As a result, the statements were not protected speech by the First Amendment.

The lesson public employees should take from this case is that their First Amendment protections are not unlimited, and even statements about their job that appear to be "matters of public concern" will not always be protected, particularly if the statements are more in the nature of a personal concern.

Read the entire post here.

Post originally authored by Margaret Kostopulos, Ancel Glink

Monday, November 9, 2015

Officers Immune for Actions in Banning Person from City Meetings and Property

Open meetings laws protect the rights of the public to attend meetings of government boards and councils so the public can witness the policies and actions of its elected or appointed officials in person. However, these rights are not unlimited, and circumstances may prevent members of the public from witnessing all government activities. For example, most state meetings laws allow government bodies to close a portion of a meeting to discuss confidential matters, such as litigation and personnel issues.  Another example would involve a public body banning a particular member of the public because of disruptive behavior.  Today's post involves this latter situation. Vincent v. City of Sulphur.

During an altercation at a bank, an individual threatened to kill the Sulphor Louisiana mayor and a city councilman. Police investigated, and ultimately issued a "no-trespass" order prohibiting the individual from entering certain city property.  The individual sued, claiming that his due process rights, among others, were violated by issuance of the no-trespass order.

On appeal, the 5th Circuit Court of Appeals found that the officers were entitled to immunity for their actions in issuing the no-trespass order for two reasons. First, the order was reasonably limited as it only applied during the period of time the officers were investigating the charges against the individual subject to the order. Second, the nature of the city's security interests were greater than the individual's right to prior notice and a hearing, as the justification for the order was to protect two city officials from potential future violence. Because the officers were immune, the court did not need to reach the question as to whether they violated the individual's due process rights.

Post Authored by Julie Tappendorf

Friday, November 6, 2015

How to Verify a Government Facebook Page

Twitter has "verified" celebrity, business, and other official Twitter accounts for some time, but Facebook's verification process is fairly new. Surprisingly, few government bodies have gone through the process for verifying their Facebook pages, maybe because verification has not been widely publicized. Verification can be beneficial to government bodies concerned about impersonation or parody accounts that can often confuse and mislead the public.

You will know if a government page is a verified page if it has a blue checkmark next to its name. For example, the City of Evanston's Facebook page is verified - check out the blue checkmark next to the City's name on its Facebook home page here.

The process for verifying your government Facebook page is as easy as filling out a form that looks like this (see below).  After receipt of the form, Facebook will review the information provided, and if approved, place the checkmark on your page.  

Thursday, November 5, 2015

Don't Forget Audit Disclosure Requirements

Many local governments are finishing up their annual audits, and we wanted to again remind you of new state law disclosure obligations for municipalities and counties. 

P.A. 98-0738, effective January 1, 2015, requires the auditor conducting the municipal or county audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting. Municipalities and counties with websites must post this information on their websites, in addition to other filing and disclosure requirements already in effect (i.e., filing an electronic copy with the state comptroller). 

Post Authored by Julie Tappendorf

Wednesday, November 4, 2015

Prayer at Public Meetings

Recent news reports about a high school football coach being disciplined for praying on the football field have raised a few questions about the constitutional limits on prayer and governments. Specifically, the question that this raises is how the Establishment Clause squares with the Free Exercise Clause. One area that received a lot of attention a year or so ago is prayer at government board and council meetings. We wrote about last year's Supreme Court case on this issue previously, and this issue is the subject of this month's Ancel Glink Q&A (see below):

From Ancel Glink's Monthly Q&A from November 2015:

Can a public body begin its meetings with a religious prayer?
ANSWER: Yes, but with limits. The United States Supreme Court has decided many cases on this subject but its decisions do not give clear guidance. If a public body wishes to include a prayer as part of its meeting, here are a few guidelines to follow so as to avoid conflicts with the First Amendment:
  1. Seek out clergy from a variety of denominations and faith traditions to lead the prayer.
  2. Include a statement at the top of the printed agenda which says that says that the government body "does not endorse religious faith. The prayer is intended to lend solemnity to the public meeting and invite an attitude of respect and consideration."
  3. Request the cleric to speak in nonsectarian terms, not referring to any specific denomination or creed, nor advocating particular beliefs, emphasizing the purpose of the prayer as stated on the agenda. If the cleric does not abide by this request, don't invite him/her back.
  4. Do not provide compensation to the cleric from public funds
  5. Conduct the prayer before the roll call which begins the official meeting. Typically the Pledge of Allegiance is recited before the roll call; this would be the best moment for the prayer.
Original Question of the Month Authored by Paul Keller, Ancel Glink