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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, February 16, 2018

Water Bill Customer's Name Not Exempt Under FOIA

A requester submitted a FOIA request with a city asking for a copy of the water bill for a particular address. The city provided a copy of the bill, but redacted the customer's name, mailing address, and account number, citing 7(1)(b) of FOIA ("private information"). The requester filed a complaint with the Public Access Counselor (PAC) office of the Attorney General, who found the city in violation of FOIA in its second binding opinion of 2018.

In PAC Op. 18-002, the PAC rejected the city's argument that the water customer's name was exempt from release under the "private information" exemption (section 7(b) of FOIA), finding that the definition of "private information" in section 2(c-5) of FOIA did not expressly exempt a person's name from release. The PAC also cited section 2.5 of FOIA that states that records of a public body that relate to the receipt of public funds are deemed public records subject to release, and determined that a utility bill "clearly relates to the City's receipt of public funds." 

In sum, the PAC ordered the City to provide a copy of the requested water bill to the requester displaying the customer's name.

Post Authored by Julie Tappendorf

Thursday, February 15, 2018

Library District Annexation Bill Introduced

There has been quite a bit of new legislation introduced over the past few weeks, including a recent bill that would affect library districts in Illinois.

HB 4519 would amend the Public Library District Act to mandate that a referendum be held prior to annexing territory to a library district of any property that meets the following criteria: (1) the territory is within the boundaries of a municipality/school district that is within the district, (2) the territory is contiguous to the district, and (3) the territory is not served by a local public library. 

Currently, the law only requires a referendum to annex territory meeting this criteria if 10% of the voters in (a) the library district or (b) the property to be annexed file a petition for a referendum (what is known as a backdoor referendum). If this bill passes, however, the library board will be required to submit the question of annexation to referendum after it passes the annexation ordinance and only if a majority vote in favor of the referendum can the territory be annexed to the library district. 

Tuesday, February 13, 2018

Bill Would Eliminate "Builder's Choice" on Form of Performance Security

Under Illinois law, a municipality or ocunty can require a developer or builder to post security to guarantee the completion of public improvements related to a development. However, the law currently allows the developer or builder to choose the form of the security. Specifically, the law states that if a municipality or county requires performance security to be posted, the builder or developer has the option to file a letter of credit, surety bond, or letter of commitment in an amount equal to or greater than 110% of the amount of the bid on the particular improvements, and the municipality or county is obligated to accept it. 

HB 4531 would modify the statute to eliminate the language giving the developer or builder the choice on the form of security that it posts with the municipality or county. If passed, the law would allow a municipality or county to choose the form of security (except for cash bonds, which would be eliminated from the "menu" of forms of security under the statute). The bill would also eliminate the limitation on the amount of security that must be posted (currently, the statute allows the builder or developer to post security of its choosing in an amount of 110% of the improvements). Finally, the bill removes the home rule preemption language.

We'll monitor this legislation to see if it moves forward.

Monday, February 12, 2018

New OMA and FOIA Bills Introduced

There have been a couple of new bills introduced to amend the Open Meetings Act. The first (HB 4583) adds new obligations on public bodies in complying with the OMA. The second (HB 5433) would offer OMA and FOIA training alternatives to municipal officials. 

HB 4583 would amend the OMA to do the following:

  1. Require that all special meetings be noticed in the same manner as regular meetings.
  2. Eliminate the provision in the OMA that states that the failure of a public body to post notice and an agenda of a meeting on its website does not invalidate the meeting or any action taken at the meeting.
  3. Require a public body with a website to post the meetings of all regular, special, and emergency meetings, including meetings of subsidiary bodies.
  4. Authorize a court to declare null and void any final action taken at a meeting in violation of the law, whether the meeting is closed or open. (Currently, the OMA only authorizes a court to invalidate actions taken in closed session).
  5. Mandates a court to award reasonable attorneys' fees to a prevailing party who brought a lawsuit to enforce the OMA. (Currently, the court has the authority, but not the obligation, to award attorneys' fees to prevailing parties).

HB 4533 would amend the OMA to authorize an alternative training program for elected or appointed officials. Currently, the only authorized OMA training for members of a public body is the electronic training program offered by the Public Access Counselor's office of the Illinois Attorney General. If passed, this bill would allow members of public bodies of a municipality to satisfy their OMA training obligation by attending a training conducted or sponsored by an organization that represents municipalities (i.e., the Illinois Municipal League). 

The bill also proposes to amend FOIA to authorize a similar alternative training program for FOIA officers.

Thursday, February 8, 2018

Alderman's Texts and Emails on Private Device Not Subject to FOIA According to Court

The use of private cell phones by elected officials brings up a variety of legal issues, including whether the emails or text messages sent and received by the private device are subject to public release under the Freedom of Information Act. We have discussed this issue at length on the blog, including reporting about the Illinois appellate court's decision in Champaign v. Madigan where the court held that communications sent/received on city council members' private cell phones might be subject to FOIA under certain circumstances. You may remember that the Illinois Attorney General had taken a much broader position - that all communications sent/received by an elected official is subject to FOIA but the court limited that in its ruling in Champaign.

Recently, the Cook County Circuit Court dealt with this issue in a case called Ahmad v. City of Chicago. In that case, Ahmad had filed a FOIA with the City of Chicago for the release of texts and emails sent by or to a City Alderman relating to Ahmad or his property. The City denied the FOIA request, and Ahmad sued claiming that the communications were releasable because they related to City business. The City argued that because an Alderman is not a "public body," FOIA did not apply to the communications on the Alderman's private cell phone.

The circuit court agreed with the City, finding that the Alderman was not acting as a "public body" when he sent and received emails and texts to and from constituents relating to Ahmad and his property. The court noted that FOIA only applies to public bodies, not public officials. The court also acknowledged the holding in the Champaign case that there are three situations where communications sent to received by an elected official on his or her private device would be subject to FOIA - i.e., when those communications are (1) forwarded to a government account; (2) sent during a meeting of the public body; or (3) sent to a majority of the public body. Unless one of these three circumstances exists, these emails and texts were not subject to FOIA because the Alderman was not a "public body" subject to FOIA. The court rejected Ahmad's argument that Chicago Alderman are acting in a quasi-executive manner in zoning matters, finding that the ultimate authority in granting zoning approvals lies with the City Council and not just one Alderman. 

In sum, the court made it clear that the "public body" is the legislative body as a whole, and not an individual Alderman. Because an individual Aldermen is not a public body under FOIA, he or she is not subject to FOIA's disclosure requirements except in one of the three limited circumstances discussed in the Champaign case.

Tuesday, February 6, 2018

Board Member Political Emails Not Covered by OMA

A reader shared a recent advisory opinion issued by the Public Access Counselor of the Attorney General that addressed a claim that board members violated the OMA when they emailed each other about a referendum. The PAC ruled that the members of the board did not violate the OMA in 2017 PAC 49878.

A school district was contemplating issuance of working cash fund bonds in the amount of $20 million. In response, residents of the district filed a referendum petition to place the question of the issuance of the bonds on the spring 2018 ballot. Another group of residents filed an objection to the validity of the referendum petition. The PAC opinion notes that a couple of the school district board members had emailed each other about the referendum objection process, which led to the complaint filed with the PAC claiming the board members violated the OMA.

The school district argued that the board member emails did not violate the OMA because the board members were not "discussing public business" in those emails under section 2(a) of the OMA. The PAC agreed, finding that the emails between the board members were limited to the mechanics of filing the objections to the referendum petition and not business of the school district. Instead, the board members were acting as private citizens exercising their political rights, and not representatives of the school district board. Board members' private actions "are not automatically converted into the business of the Board solely because the actions could have an impact on the business of the public body." In short, the PAC found the emails to be more in the nature of "political discussions," which are not covered by the OMA. 

Monday, February 5, 2018

Illinois' Gun Ban Within 1000 Feet of Public Parks Unconstitutional

On February 1st, the Illinois Supreme Court found an Illinois statute that bans persons from carrying or possessing firearms within 1,000 feet of a public park unconstitutional. People v. Chairez, 2018 IL 121417.

The Unlawful Use of Weapons Statute, 720 ILCS 5/24 et seq., prohibits people from carrying guns in certain public areas, including schools, public housing, public parks, courthouses. The law also prohibits guns on any public way within 1,000 feet of schools, public parks, courthouses, public transportation facility, or public housing. A violation is a class 3 felony.

Mr. Chairez pled guilty to possessing a firearm within 1,000 feet of a public park but later sought to vacate his conviction based on his claim that the statute was unconstitutional. The Illinois Supreme Court agreed, and struck down that portion of the statute that banned guns within 1,000 feet of a public park. The Court determined that the 1,000 ban was a severe burden on a person's Second Amendment right to carry a firearm, and that the state had failed to show how the 1000 foot ban actually reduces gun violence to children in public parks. The Court also noted the difficulty in a person determining the 1,000 foot area for purposes of compliance with the statute.

The Court did not address the 1,000 foot ban as it applies to the other statutory public areas (i.e., schools, courthouses, public housing), nor does the opinion affect the ban within public parks and the other statutory public areas.

Post Authored by Megan Mack and Julie Tappendorf, Ancel Glink

Wednesday, January 31, 2018

Teacher Fired for Social Media Posts About Student

A teacher was fired for her social media activities that referenced a dispute she had with a student in one of her classes. After the student challenged an answer on a test that had been marked wrong by the teacher, both the teacher and the student posted about the incident, and each other, on various social media platforms, including Facebook.  After the teacher's posts were made available to the school, the teacher was terminated. According to news stories about the termination, the teacher's posts included the following:
After the semester is over and she's no longer my student, I will post her name, her picture and her bio on Facebook, Twitter, Instagram and LinkedIn. Count on it. For now, I'm bound by university rules that grant her more latitude in freedom of speech than I have. After she graduates and I retire, all bets are off.
In another Facebook post, the teacher posted a meme of a wrapped present with the following message: 
I'm sorry if I upset you. Please accept this complimentary (sex toy) and go f--- yourself. 
As we have discussed in past blog posts, employees can be disciplined, and even terminated, for their social media activities, subject to certain constitutional and labor law rights and protections. Employees need to be aware that their social media activities are not always protected.

Post Authored by Julie Tappendorf

Tuesday, January 30, 2018

Court of Appeals Finds Reapportioned Ward Map Constitutional

The Seventh Circuit Court of Appeals recently upheld the City of Chicago Heights' reapportionment map of its aldermanic districts against a challenge that the map was unconstitutional. McCoy v. Chicago Heights Election Commission,

In 1987, a class of African-American plaintiffs sued the City and the Chicago Heights Park District claiming that the City and Park District's methods for electing representatives diluted their voting rights. Early in the litigation, these election practices were found to violate the Voting Rights Act of 1965, and the parties entered into various consent decrees. The most recent consent decree, entered in 2010, established a 7-ward single aldermanic form of government, and included a ward map that complied with applicable constitutional requirements. The decree required the City to reapportion wards as population changed.

In 2014, the City sought court approval of a reapportioned map that included population changes from the 2010 census results. Plaintiffs objected to the proposed map, and after various hearings, the court approved the reapportioned map. 

Plaintiffs appealed to the Seventh Circuit, asking the court of appeals to reverse the district court's approval of the reapportioned ward map. The plaintiffs also argued that the district court should have considered plaintiffs' own proposed map.

The Seventh Circuit rejected the plaintiffs' arguments, and upheld the reapportioned ward map approved by the district court. The Seventh Circuit first held that the local government has the responsibility to prepare and submit a reapportioned ward map and the district court did not err in refusing to consider plaintiffs' proposed map. Next, the Court addressed plaintiffs' argument that the City's map violated the Equal Protection clause. The Court noted that the Constitution does not require "exact mathematical precision" in drawing voting district boundaries, but does require a government to make an "honest and good-faith effort to construct its districts as nearly of equal population as is practicable." Any deviation of less than 10% is presumptively constitutional. Any deviation greater than 10% requires the government to present justifications for the deviation.

In this case, the City's map had an overall deviation of 12%, so the district court held a hearing to allow the City to present its justifications. The City presented evidence to support the deviation, including the City's consideration of historical ward boundaries, natural boundaries of major thoroughfares in drawing the ward map. The district court had accepted the City's justifications in approving the ward map, and the Seventh Circuit agreed that the map satisfied the constitutional principle of "one person, one vote." 

Post Authored by Julie Tappendorf

Monday, January 29, 2018

PAC Rejects Village's Use of "Deliberative Process" FOIA Exemption

The Public Access Counselor (PAC) issued its first binding opinion of 2018 finding a public body in violation of FOIA in PAC Op. 18-001.

A reporter had filed a request with a village for an unredacted copy of the resignation letter that had been submitted by the former village president. The village provided the letter to the reporter but had redacted one portion, citing 7(1)(f) of FOIA. The reporter filed a complaint with the PAC claiming that village violated FOIA by redacting the requested record. The village responded that the information was redacted because it was exempt under 7(1)(n) and 7(1)(f) of FOIA. The village supported its denial by stating that the redacted information related to a public body's adjudication of employee grievances and that information within the letter expressed opinions that are not final.

The PAC reviewed the unredacted record and determined that the village violated FOIA in redacting a portion of the resignation letter. The PAC rejected the village's argument that the redacted information was subject to the "deliberative process" exemption of 7(1)(f), finding that although the information may have been the former village president's opinion regarding his decision to resign, that opinion was not expressed as part of a "deliberative or decision-making process." The PAC then noted that the communication represented his "final decision" to resign, so it could not be part of a predecisional, deliberative process. It also was not part of the "give and take" of a decisional process. 

The PAC also rejected the village's argument that the redacted information was exempt under 7(1)(n) because it related to the adjudication of an employee grievance or disciplinary case because the village had not identified any ongoing or contemplated grievance, complaint, or disciplinary action that was or would be adjudicated. 

In sum, the PAC found the village in violation of FOIA and ordered the village to release an unredacted copy of the resignation letter to the reporter.

The PAC opinion provides some insight into how the PAC interprets the "deliberative process" exemption contained in 7(1)(f) of FOIA.

Post Authored by Julie Tappendorf

Thursday, January 25, 2018

Court Dismisses Discrimination Claims Because Plaintiff Failed to File Complaint with Human Rights Commission

In Gillard v. Board of Trustees of Community College District 508, the appellate court dismissed a case alleging discrimination in a place of public accommodation in violation of the Illinois Human Rights Act because the plaintiff failed to exhaust her administrative remedies. The appellate court made it clear that the circuit court has no jurisdiction to hear the alleged discrimination claims because the plaintiff did not first file a complaint with the Human Rights Commission within 180 days of the alleged discrimination. The court rejected the plaintiff's argument that the court should hear her case because she "inadvertently" missed the deadline to file with the Commission, and her case was dismissed.

Post Authored by Julie Tappendorf

Wednesday, January 24, 2018

Bills Would Prohibit Use of Public Funds for Employee Professional Development and Training Expenses

A couple of new bills have been introduced in the Illinois General Assembly that would restrict the use of local government funds for expenses related to local officials' attendance at conferences or conventions.  At this time, none of these have passed the house or senate.

HB 4246 would prohibit the use of any public funds by a unit of local government for expenses connected with attendance by an employee or contractor of a unit of local government at any convention or gathering of personnel. The bill defines "convention or gathering of personnel" to mean any gathering where employees or contractors from 2 or more units of government gather for professional education, training, retraining, or personnel development. 

This bill would seem to cover conferences hosted by the ILCMA, IML, TOI, IAPD, and ILA, among many other conferences that provide education and professional development training to local government employees. The bill would exempt public safety personnel from the ban, and would allow public funds to be spent pursuant to a contract that predated the new law - that would appear to cover employment agreements where the unit of local government agreed to cover an employee's conference and training expenses.

HB 4247 would amend the State Finance Act to prohibit state appropriations for contracts to rent or pay for access to physical space for booths, hospitality suites, or other physical space at a convention or gathering of personnel (again, the bill exempts conferences for public safety personnel). 

HB 4248 appears to be a combination of the provisions of HB 4246 and 4248.

Because these bills, if passed, would have a significant impact on local government expenditures on professional development, training, and education of its employees, we will keep you posted on their progress through the General Assembly.

Post Authored by Julie Tappendorf