Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


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

Saturday, December 31, 2011

Blog in Review 2011 – Twitter-Style

In recognition of all who successfully populate the Twitterverse with succinct, to-the-point content, we have summarized the most popular Municipal Minute posts of 2011, in 140 characters or less:

AG releases OMA training program required for elected and appointed officials.  9/21, 12/27

Governments must post salaries of certain employees. 10/6

PAC issues binding opinions on FOIA requests for review in 2010 and 2011. 12/5, 12/6

Recent changes to FOIA favorable to governments. 9/3

Texts on personal cell phones are public records may be subject to release under FOIA. 11/17

Government officials should beware of disqualifying conflicts of interest. 9/14

How to avoid council wars and power plays.  9/19

Governments tweeting into trouble? 9/3

Guidelines for drafting social media policies.  9/26, 9/27

NLRB Report summarizes employee social media cases. 10/31

Is social media content a public record? 10/12

Chicago’s weed ordinance upheld on aesthetic grounds. 12/12

Just compensation determined at time of taking, not filing of condemnation action. 12/2

Court rules in favor of municipality in billboard case where removal tied to lease term. 11/16

DC assault weapon ban and handgun limits upheld but long gun limits struck down. 11/11

Happy New Year!

Wednesday, December 28, 2011

2011 Land Use Book Now Available

The American Bar Association (State and Local Government Section) has published its annual compilation of land use-related articles and reports released in 2011.  At the Cutting Edge 2011, edited by Dwight Merriam, is an essential resource for land use lawyers, planning professionals, and others interested in keeping up with current trends and issues affecting land use law.    

The book covers a wide range of land use issues, including the following:
  • protecting citizen speech (anti-SLAPP);
  • local ethics rules and land use;
  • promoting green transportation choices;
  • land use regulation of cellular towers;
  • land banking of vacant property;
  • changes in beachfront property law;
  • comprehensive planning law;
  • form-based codes in New England;
  • the Religious Land Use and Institutionalized Persons Act (RLUIPA);
  • condemnation law; and
  • underutilization and the public use doctrine.
Three Ancel Glink attorneys contibuted to this year's publication.  David Silverman authored an article on promoting green transportation.  Brent Denzin and Julie Tappendorf co-authored an article on land banking of vacant property

Visit ABA's website (publications page) to get yours today!

Tuesday, December 27, 2011

Open Meetings Electronic Training Program Now Available

The OMA electronic training program for elected and appointed officials is now available on the Illinois Attorney General's website.  As we reported previously, public officials currently in office have a year to complete their training (by January 1, 2013) and officials who take office after January 1, 2012, have 90 days after taking office to complete their training.  (Practical tip 1:  although the program appears to be available now, you might want to wait until after January 1st to complete the training -- see "glitch" discussion below).

You can access the OMA training program by clicking the "Electronic Training" link on the Attorney General's website.  Then, you will need to register as an OMA Public Body Member, requiring you to create an account using the online registration form.  This account will allow you to review your training records and print out your training certificate once you successfully complete the program (assuming you can get past screen 14 - more on that later).  (Practical tip 2: When you choose your own password, make sure it is 8 characters in length (not 7, not 9, but exactly 8) and the password must contain a "special character."  Not a number.  Trust me, it doesn't work unless you follow the password instructions to the letter...I mean, special character).

After you create your account, you will be able to access the training program.  There are 58 screens you have to progress through to complete the training.  For obvious reasons, I won't share any of this information because if you are required by law to complete the training program, you need to find out for yourself!  

One important tip about the training program - make sure you give yourself plenty of time to get through the training.  The program froze up more than once, requiring me to log off and restart.  Fortunately, you can choose to go back to where you left off when you logged off.  Unfortunately, I never got past screen 14 because the program froze each time I answered the question.  In all likelihood, these program glitches will be fixed by January 1, 2012, the effective date of the training requirement.  Apparently, I was premature in trying to cross this one off the "to-do" list.  I will, as my grandmother used to say, "hold my horses" and try again next week.

Friday, December 23, 2011

$1.5 Million Penalty for Clean Water Act Violations

Today's story offers a lesson for municipalities and contractors: state agency approval may not shield activity from federal environmental laws. 

The EPA and Department of Justice (DOJ) announced that Wright Brothers Construction Co. and the Georgia Department of Transportation (GDOT) have agreed to pay a $1.5 million penalty and spend more than $1.3 million to offset environmental damages to resolve alleged violations of the Clean Water Act (CWA). The civil penalty is one of the largest ever under the CWA provisions prohibiting the unauthorized discharge of dredged or fill material into waters of the United States.

The complaint alleges that between 2004 and 2007, Wright Brothers, with approval from GDOT, buried all or portions of seven primary trout streams in violation of the CWA. Wright Brothers was hired by GDOT to dispose of excess soil and rock generated during two GDOT highway expansion projects in northeast Georgia. The contracts between GDOT and Wright Brothers specifically required Wright Brothers to obtain written environmental clearance from GDOT prior to using any site as a fill site. GDOT approved sites that included streams considered to be waters of the United States. These actions resulted in the unauthorized disposal of more than one million cubic yards of excess rock and soil, impacting approximately 2,800 linear feet of stream.

Under the settlement, Wright Brothers and GDOT must perform injunctive relief measures, including purchasing 16,920 mitigation credits at an estimated cost of $1.35 million to offset the impacts to waters of the United States that cannot be restored. The credits must be purchased from mitigation banks servicing the area in which the violations occurred. A mitigation bank is a wetland, stream, or other aquatic resource area that has been set aside for the purpose of providing compensation for impacts to aquatic resources that occurred under a federal, state, or local permit.

Wright Brothers and GDOT will also remove piping and restore the bed and bank of a 150-foot stream channel that was impacted from the disposal activities. When complete, the restoration activities and injunctive relief measures will mitigate the 2,800 feet of stream impacted by the CWA violations.

The settlement is subject to a 30-day comment period and final court approval.

For more information on the settlement, visit the EPA's website.   

Post authored by Brent Denzin.

Thursday, December 22, 2011

MWRD Agrees to $50 Million in Green Infrastructure Projects in Settlement with EPA

The EPA announced a settlement with the Metropolitan Water Reclamation District (MWRD) to address the problem of raw sewage being released into Chicago area waterways during rain storms. MWRD has also agreed to pay a civil penalty of $675,000 and make an enormous investment in storm water/flood abatement projects.

First, the settlement requires MWRD to implement a $25 million to $50 million green infrastructure program that will reduce storm water runoff in communities.  Among other green infrastructure projects, MWRD agreed to distribute rain barrels and develop projects to build green roofs, install rain gardens, or use pervious paving materials in urban neighborhoods.

Second, the settlement includes a requirement to complete the Deep Tunnel—an enormous public works project designed to detail floodwaters, in a series of stages in 2015, 2017, and 2029. 

Third, the settlement requires MWRD to control trash and debris in overflows using skimmer boats to remove debris from the water so it can be collected and properly managed, making waterways cleaner and healthier.

For more information, check out the DOJ's website.

Post authored by Brent Denzin.

Wednesday, December 21, 2011

Reduce Costs of Environmental Compliance and Flood Mitigation

On February 8, 2012, the Metro West Council of Government will present a seminar titled "Eliminating Waste, Saving Money:  Strategic Steps to Reduce Costs of Environmental Compliance and Mitigate Flood Impacts."  The seminar will focus on quick and easy steps to protect communities from environmental liability and reduce impacts of flooding—while saving money in the process. 

Ancel Glink Attorney Brent Denzin will address various ways communities can streamline their codes and ordinances.  Brent will also provide tips for compliance practices.  Eric Neagu of Weaver Boos Consultants will discuss ways communities can reduce costs by incorporating green infrastructure and reducing flooding and storm water pollution.

The seminar will be held at the Sugar Grove Fire Protection District building located at 25 Municipal Drive, Sugar Grove, Illinois, from 9:00 a.m. to 10:30 a.m.

Please RSVP by Friday, February 3rd via e-mail or fax to:

E-mail:  kburgess@metrowestcog.org 
Fax: 630-256-3169           

Tuesday, December 20, 2011

New Laws Impacting Municipalities Take Effect January 2012

With only two weeks left in 2011, and many lucky folks heading out of the office for the rest of the year, we thought it would be helpful to provide a brief summary of some of the new laws affecting municipalities that take effect on January 1, 2012. 

In no particular order, here they are:

Public Officials Must Complete Electronic Open Meetings Act Training. 

As we reported on September 21, 2011, P.A. 97-0504 added a new training requirement for all elected and appointed public officials.  Officials holding office on January 1, 2012, have one year to complete the training. Officials taking office after January 1, 2012 will have 90 days to complete the training. Officials who have already completed an OMA training program do not have to take it again.

The electronic training program is administered by the Public Access Counselor (PAC).  Upon completion of the training, each official must submit a certificate of completion to the PAC. A certificate of completion covers the official for any committee or subcommittee of the public body and for every other public body of which the official may be a member.

Municipalities Must Post Employee Salary Information.

As we reported on October 6, 2011, P.A. 97-0609 amended the Illinois Open Meetings requiring IMRF employers to post the total compensation package for the following employees: 

·     each employee receiving a total compensation package that exceeds $75,000 a year within six days after approving its budget.

·     each employee with a total compensation package equal to or in excess of $150,000, at least six days before an IMRF employer approves the package.

Under the new law, “total compensation package” is defined as salary, employer-paid health insurance premiums, housing allowance, vehicle allowance, clothing allowance, bonuses, loans, vacation days which will be earned in that year and sick days which will be earned in that year. 

If an employer maintains a website, it can post the information on its website or post the information available at its main office.  However, if an employer selects this option, it must also post directions on its website on how to access the information.  If the employer does not have a website, it must post the information at its main office.

Contractors Subject to New Record-Keeping Obligations under Prevailing Wage Act.

P.A. 97-0571 amends the Prevailing Wage Act to require contractors and subcontractors to keep records for at least 3 years from the date of the last payment on a contract or subcontract.  The new law also requires contractors to file a monthly certified payroll signed by the contractor or agent certifying that he or she has examined the payroll records.  Contractors now have 3 days (instead of 7) to make records available for inspection by the public agency.  For certain violations, contractors can be barred from public works projects for a four year period.   

Municipalities Can Recover Overpayment of Wages and Benefits.

P.A. 97-0120 amends the Illinois Wage Payment and Collection Act to authorize municipalities to make deductions from employee wages or final compensation for overpayments that result from a typographical or mathematical error made by the municipality or to collect a debt owed to a municipality.  The amount of the deduction cannot exceed 15% of the net amount of the payment.  Prior to making the deduction, the municipality must certify that (i) the employee has received notice of a wage deduction and opportunity for a hearing. (ii) the employee has been afforded a hearing by the municipality to dispute the debt.

Back Seat Passengers Now Have to Buckle Up.

P.A. 97-0016 requires all back seat passengers to wear a seatbelt, but exempts passengers of emergency vehicles and taxi cabs.

In closing, I have the following words of wisdom for 2012:

Buckle Up…

The Chicago Bears are not going to the playoffs. 
But, there's always next year...

Friday, December 16, 2011

Can a Taxpayer Sue for Illegal Municipal Expenditures Without Showing Pecuniary Harm?

The answer is....

It depends (in this case, on the Circuit in which the taxpayer resides)

In Highway J Citizens Group v. Village of Ritchfield, a citizens group challenged an annexation by the Village of Ritchfield, Wisconsin of certain property located in the Town of Polk.  Plaintiffs claimed that the annexation did not meet the statutory contiguity requirement and resembled a "balloon on a string," contrary to state annexation laws.  The complaint alleged that the annexation caused damages to members of the citizens group who resided in the Town of Polk due to lost property tax revenue and to members of the group who reside in the Village of Ritchfield (the annexing municipality) because the Village was required to make substantial annual payments to the Town as a result of the annexation.

The trial court dismissed the case, finding that plaintiffs lacked standing to challenge the annexation.  The appellate court affirmed on the same basis.  The appellate court held that a taxpayer cannot "simply challenge an ordinance merely because he or she disagrees with the legislative body."  Instead, a taxpayer must have "sustained, or will sustain, some pecuniary loss before he or she has standing."  Because the members of the citizens' group were not owners of property within the annexed territory, they had no direct, legal interest in the annexation.  According to the court, plaintiffs' allegations of pecuniary harm were no different than the harm suffered by any other taxpayer in the Town of Polk or Village of Ritchfield. 

So, why do we care about an unpublished decision out of Wisconsin?  Well, just last month, plaintiffs filed a petition for certiorari to the United States Supreme Court.  In their brief, plaintiffs argue that the Supreme Court and five of the Circuit Courts of Appeal (First, Second, Sixth, Ninth, and D.C.) do not require actual pecuniary harm to establish municipal taxpayer standing.  According to plaintiffs, the Third, Fourth, and Seventh Circuits do require a showing of actual pecuniary harm.  It is this alleged Circuit split that forms the basis for plaintiffs' writ of cert to the Supreme Court. 

While this particular case focuses on the narrow issue of whether a municipal taxpayer has standing to challenge an annexation, the question presented to the Supreme Court could have broader application in taxpayer challenges to any municipal expenditure. 

It remains to be seen whether the Supreme Court will grant cert and answer the plaintiffs' question:  Does a taxpayer have standing to sue for illegal municipal expenditures without having to show pecuniary harm? 

Thursday, December 15, 2011

Supreme Court to Hear Argument in Environmental Dispute (Sackett v. EPA)

In January, the U.S. Supreme Court will hear oral argument in a case involving governmental enforcement of federal environmental laws against private property owners.  In Sackett v. EPA, a property owner challenged the EPA’s use of so-called “administrative compliance orders.”  The EPA uses these administrative orders to allege that a property owner is in violation of an environmental law provision and to demand that the owner bring the property into compliance.  The Supreme Court will decide whether a property owner can immediately go to court to challenge the EPA's order or whether the owner must wait to challenge the order until after the EPA sues the property owner in a civil or criminal action. 

The case involved a challenge to an EPA compliance order that asserted that the Sacketts had violated the Clean Water Act when they filled in a wetland on their property without a permit.  The compliance order required the Sacketts to remove the fill material and restore the property to its original condition.  The owners requested a hearing before the EPA, which was denied.  The Sacketts then filed a lawsuit with the district court claiming that the compliance order was arbitrary and capricious, violated their due process rights, and was unconstitutionally vague.  The district court dismissed the Sacketts' case.  On appeal, the Ninth Circuit affirmed, concluding that the Sacketts were not entitled to pre-enforcement judicial review of the EPA compliance order. 

The question presented to the Supreme Court is deceptively simple - Is a property owner entitled to judicial review of an EPA administrative compliance order?  The issues surrounding that question, however, are far from simple and have kept quite a few environmental advocates and opponents (and their lawyers) busy.   In fact, 14 amici briefs were filed in support of the Sacketts, including briefs filed by the National Association of Home Builders and the American Civil Rights Union, among others.  A common theme among these briefs is the assertion of a conflict between these environmental laws and the Fifth Amendment right that no person be deprived of property without due process of law. 

Those of us who work in the land use field are very interested in seeing how the Court will resolve the alleged conflict between environmental protection and property rights. 

We will keep you posted on this case.  For more information about this case, visit Scotusblog.

Tuesday, December 13, 2011

Ancel Glink's Parks Group is Now Tweeting

Ancel Glink's parks practice group just joined Twitter.  (Try saying that 3 times in a row).  For recent developments and news about park districts, park departments, parks and recreation, and anything and everything parks, follow us at:

And don't forget to follow Ancel Glink's land use and economic development practice group at:


Never more than 140 characters.

Monday, December 12, 2011

Chicago’s Weed Ordinance Found Constitutional

Like most other municipalities throughout the state and across the country, the City of Chicago has in place an ordinance that regulates the height of weeds on private property. The City’s weed ordinance was recently the subject of a constitutional challenge by a property owner who was cited, and found to have violated, the ordinance. The appellate court upheld both the weed ordinance and the City’s administrative proceedings in Schacter v. City of Chicago.

In this case, the property owner had asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the weed ordinance. Specifically, the owner alleged that the weed ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the "strict scrutiny" test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose.

In addressing the owner’s constitutional challenge to the weed ordinance, the appellate court first rejected the property owner’s claim that the court should apply strict scrutiny in reviewing this ordinance, finding no “fundamental constitutional right” at issue.  Instead, the court determined that the City's prohibition on properties containing weeds averaging over 10-inches tall was rationally related to a legitimate interest, even if that interest was solely aesthetics. In supporting its decision, the appellate court cited the U.S. Supreme Court’s decision in Berman v. Parker¸ where the Supreme Court long ago recognized that the:

concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean…

Municipalities have traditionally justified and supported their “weed ordinances” with recitals that emphasize the health and safety benefits to the regulation (control of rodents, prevention of disease, etc). Based on this decision, aesthetics alone may provide sufficient justification and support for a municipality’s property maintenance regulations. 

Post authored by Julie Tappendorf, Ancel Glink.

Wednesday, December 7, 2011

Ancel Glink's Winter Issue of "In the Zone" Just Released (Controversial Land Uses)

Check out the winter issue of Ancel Glink's e-newsletter, In the Zone:  Current Trends in Land Use Law, for updates on land use and economic development topics.  This edition focuses on "controversial land uses" including municipal regulation of landfills, billboards, cellular facilities, and agricultural uses.  

Here are a few teasers of articles you can find in this issue:

Municipal Regulation of Billboards, Landfills, and Horses Upheld by Illinois Courts
This article compares three recent Illinois cases that considered challenges to municipal regulation of various controversial land uses, including billboards, landfills, and agricultural uses. 

In our first case, the court upheld a municipal zoning decision resulting in the removal of a billboard - a common eyesore that many local governments desire to eliminate.

An even more onerous land use - a landfill - is the subject of our second case.  The court in this case considers what constitutes a fundamentally fair landfill siting hearing, a procedural due process concept that can also be applied to traditional zoning hearings.

Our third case reminds municipalities of the importance of carefully defining controversial land uses in local zoning ordinances - here, agricultural uses and the boarding of horses.

Cellular Antennas, Shot Clocks and Zoning:  Two Years Later
We also discuss another controversial land use that might create the biggest paradox in a community - the erection of cellular towers; no one wants one nearby, but no one is willing to put down their phone.  This article summarizes how courts have reviewed cellular zoning decisions in light of the FCC's latest administrative order adopting "shot clock regulations" to place time limits on a municipality's review and consideration of a cellular tower application.

Tax Relief for CME, CBOE, Sears Meets Stunning Defeat in Illinois House
Perhaps, the biggest thing to happen during the recent veto session of the Illinois General Assembly is what did not happen, as a tax package designed to keep several high-profile firms in Illinois earned only eight votes in the Illinois House, after passing out of the Senate with a veto-proof majority.  CME, CBOE and Sears are each seeking millions of dollars in tax relief before a tax increase kicks in next July.  Observers expect that this will not be the end of the tax relief effort, and the legislature may take action on a new plan as early as Monday, December 12th. 

Tuesday, December 6, 2011

Part 2: PAC Binding Opinions of 2010 in Review - FOIA

Yesterday, I reported on the six binding opinions issued by the Illinois Attorney General (PAC) in 2011.  Today, I have summarized the four binding opinions issued in 2010.

Spoiler alert - just as in 2011, the PAC ruled against the public body in each of the 2010 opinions summarized below.

PAC Opinion 10-001  (copies)
An individual filed a FOIA request seeking a copy of a public body's water meter card showing reading for a six month period.  The public body responded that the requestor could inspect a copy of the records, but the public body was not obligated to provide a copy of the records.  On appeal, the PAC determined that the public body violated FOIA by not furnishing copies of the records as required by Section 3(b) of FOIA.

PAC Opinion 10-002  (fees for copies)
An individual filed a FOIA request for certified payroll records and contracts with various contractors.  The public body charged a fee for the copies that were provided to the requestor as well as a fee for duplicate copies that were retained by the public body.  The individual appealed the duplicate fee charges to the PAC.  The PAC determined that although FOIA requires a public body to retain a copy of the original request and response, the public body is not entitled to pass on duplicate copy costs to the requestor.  In short, the PAC determined that the public body violated FOIA.

PAC Opinion 10-003  (autopsy reports)
Reporters filed a FOIA request for autopsy records of Christopher Kelly (fundraiser for former Governor Blagojevich) and Michael Scott (President of the Chicago Board of Education), both suicide victims.  The requested documents included photographs, toxicology reports, police reports, and various other records.  The public body requested pre-authorization from the PAC to deny the request based on the "personal privacy" exemption, arguing that the privacy interests of the victims' families outweighed the public's interest in the release of these records.  The PAC denied the pre-authorization request except as it related to post-mortem photographs, ordered the public body to release the records, and determined that the public body violated FOIA by not releasing the records. 

PAC Opinion 10-004  (settlement agreement)
A reporter filed a FOIA request for a copy of a settlement agreement in an employment discrimination case.  The public body denied the request, stating that it did not have a copy of the settlement agreement because the lawsuit was defended by the public body's insurance carrier.  The PAC determined that Section 2.02 of FOIA expressly states that settlement agreements are public records subject to release to the public and that the public body violated FOIA by not providing a copy of the settlement agreement. 

Monday, December 5, 2011

PAC Binding Opinions of 2011 in Review - FOIA

UPDATED 4/9/2012:  Under state law, the Public Access Counselor of the Office of the Illinois Attorney General, is authorized to issue binding opinions in response to requests for review submitted by members of the public.  The PAC was granted this authority in 2010 when the General Assembly amended both the OMA and FOIA.  A request for review can be filed when a Freedom of Information Act request has been denied by a public body or when a public body has allegedly violated the Open Meetings Act.  According to a story published by the Chicago Tribune today, most of the complaints filed with the PAC involve FOIA requests rather than open meetings.  For example, last year, the PAC handled more than 5,200 new matters regarding public access, but only about 200 were for allegations of open meetings violations. 

According to the AG's website, the PAC has issued just 11 binding opinions in the two years since the PAC was created -- four in 2010 and seven in 2011 and all involving FOIA appeals.  I have summarized the 2011 opinions in this post and will provide a summary of the 2010 opinions in a future blog. 

Spoiler alert - the PAC ruled against the public body in each of the seven opinions from 2011 that are summarized below and, in all but two of the opinions, the requestor appealing the FOIA denial was a reporter.

PAC Opinion 11-001  (arrest records)
An individual filed a FOIA request seeking arrest records and gunshot residue test report. The request was denied based on the criminal history record exemption under Section 2.15 and because the public body did not possess the gunshot residue report.  On appeal, the PAC first determined that since the gunshot residue report was not in the public body 's possession, the denial was permissible. However, the PAC also determined that the arrest records were not exempt under FOIA and, therefore, the public body violated FOIA by improperly denying the records.

PAC Opinion 11-002 (police officer assignments)
A reporter filed a FOIA request seeking records containing the number of sworn officers assigned to each district. The public body denied the request under Section 7(1)(v), claiming that the information related to the mobilization and deployment of police personnel. The PAC determined that the records were not exempt because the public body failed to demonstrate how the number of officers assigned to a district could reasonably be expected to jeopardize the effectiveness of security measures or safety of the officers or public.  In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-003 (unduly burdensome)
A reporter filed a FOIA request seeking various records relating to a university’s presidential search.  The university sought pre-authorizations to withhold certain information under Section 7(1)(c) as personal privacy information, which was partially denied by the PAC. The university then partially denied the FOIA request. A subsequent request was filed, seeking the documents previously denied and the university denied the subsequent request, asserting that providing the requested documents would be unduly burdensome and that the request was a “repeated request” from the same person for the same records. The PAC found that the university violated FOIA because the public body did not either (1) previously disclose the requested records or (2) property deny the previous request.

PAC Opinion 11-004 (settlement agreements)
A reporter filed a FOIA request seeking a copy of a settlement agreement between a public body and a former employee.  The public body denied the request under Section 7(1)(s) which permits a public body to withhold records relating to insurance or self-insurance claims and loss or risk management information because the settlement amount was paid by the public body’s insurance carrier.  The PAC determined that the settlement agreement was not exempt under FOIA because (1) FOIA was recently amended to expressly provide that settlement agreements are public records subject to release and (2) Section 7(1)(s) only protects proprietary information regarding policies, procedures, and practices of the self insurance or risk management pool or association, and not information relating to individual claims or losses, including the amount to settle a claim.  In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-005 (workers compensation records)
A reporter filed a FOIA request seeking 50 individual reports containing “nerve conduction velocity” results conducted as part of workers compensation claims involving employees at a particular correctional center.  The requestor subsequently clarified his request to the public body that personal identifying information could be redacted.  The public body denied the request, claiming that the tests were risk management records protected by Section 7(1)(s).  Based on similar analysis as contained in PAC Opinion 11-004, the PAC found that the records were not "proprietary" insurance or risk management documents and that the public body violated FOIA.

PAC Opinion 11-006 (electronic records on private devices)
As I discussed in more detail in a separate blog post on November 17, 2011, the PAC issued a binding opinion regarding the denial of reporter's FOIA request for text messages, emails, and other electronic records on public officials’ personal cell phones and other devices.  The public body had argued that the records were not “public records” subject to release, but the PAC disagreed and determined that the public body violated FOIA. 

PAC Opinion 11-007 (copies)
An individual filed a FOIA request for electronic and paper copies of mining plans with the Department of Natural Resources.  The Department responded that the records were available on microfiche and invited the requester to schedule an appointment for inspection.  The requester filed a request for review with the PAC, arguing that the Department's response was a denial of his request for a printed copy of the reclamation plan.  The PAC agreed, finding that the Department violated FOIA by refusing to provide copies of the records. 

Post updated 4/9/2012 by Julie Tappendorf, Ancel Glink

Friday, December 2, 2011

Just Compensation Determined at Time of Taking, Not Filing of Condemnation Action

On December 1, 2011, the Illinois Supreme Court decided Forest Preserve of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759 (2011).  The case involved a challenge to a condemnation action filed by the District to take 204 acres of land consisting of an existing public golf course and undeveloped land.  The landowners challenged the condemnation on a number of grounds, including the jury’s determination of value as of the date of the filing of the action.  In this decision, the Supreme Court determined that the taking occurs when the government (1) deposits the amount of compensation that has been ascertained and awarded and (2) acquires title and the right to possess the property and not at the time of filing of the action.

This case began with the filing of the condemnation action by the District in 1999.  The next seven years were spent sorting out the legal rights and responsibilities between the landowners.  No final action could be taken on the condemnation action until the landowners’ legal issues were resolved.  Finally, in 2007, a jury trial on the condemnation action was held where it was determined that the fair market value of the property was approximately $11 million, a valuation only slightly above what the District offered the landowners in 1999.  The jury based the property valuation on the value as of the filing date in 1999.  The landowners challenged that valuation, contending that the property had increased in value from 1999 to 2007 to be more than twice that amount or $25.5 million. The appellate court vacated the jury verdict on the issue of fair market value, and sent the case back to the trial court to determine whether the jury verdict awarded just compensation to the landowners as required under the state and federal constitutions.  On appeal, the Supreme Court affirmed the appellate court.

The dispute as to fair market valuation arose because provisions of Illinois’ Eminent Domain Act suggest that the date of valuation is the date on which the condemnation action is filed.  In vacating the jury’s valuation, the Illinois Supreme Court relied on the U.S. Supreme Court’s decision in Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984), which held that the constitutional fifth amendment right to just compensation entitles a landowner to fair market value on the date of taking, which it defined as payment and the passing of title.  The Illinois Supreme Court explained that establishing a taking at this point in time would (1) enable Illinois trial courts to hold post-trial Kirby hearings to ensure that just compensation is properly awarded to landowners and (2) align Illinois eminent domain law with federal eminent domain law, ensuring its constitutionality. 

Post authored by David Silverman.

PSEBA Benefits Begin on the Date of Termination of Employment, Not the Date of Injury

On December 1, 2011, the Illinois Supreme Court held that benefits under the Public Safety Employees Benefits Act (PSEBA) begin on the date of termination of employment, reversing an appellate court’s decision that PSEBA benefits attach on the date of the injury.             

The case, Nowak v. City of Country Club Hills, involved a police officer who was injured in the line-of-duty.  Three years after his injury, he was awarded a line-of-duty disability.  The officer claimed that he was entitled to reimbursement of the portion of his health insurance premiums that he paid while still employed during the three year period from his injury to the disability determination.  The trial court held that PSEBA attaches on the date of the determination of the disability.  The appellate court reversed, holding that benefits kick in on the date of the injury. 

The Illinois Supreme Court reversed the appellate court’s decision, agreeing with the trial court that PSEBA benefits do not begin until the officer’s employment was terminated.  The Court first examined the language of the statute, finding that it was silent on the issue of when the employer’s obligation attaches.  Because the statute could be reasonably interpreted in one of two ways (as the trial court and appellate court established in their differing opinions) the Supreme Court found the language ambiguous and turned to the legislative history for guidance.  Relying on statements made by legislators in debating the bill, as well as a public policy analysis, the Court determined that the legislature intended PSEBA to be a post-employment benefit, meaning that PSEBA benefits will attach on the date that it is determined that an officer’s injury is “catastrophic” and therefore eligible for a line-of-duty disability pension, not on the date of injury.

The relevant portion of the Act is set out below:

An employer who employs a full-time law enforcement…officer…who…suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority…820 ILCS 320/10(a).

Thursday, December 1, 2011

Ninth Circuit Will Rehear County Gun Show Ban Case

On November 28, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled that it would rehear en banc its May 2, 2011 decision in Nordyke v. King.  That case involved a challenge to a municipal gun show ordinance.  The plaintiffs had promoted gun shows at the Alameda County fairgrounds from 1991 until the county enacted the ordinance in 1999 after a shooting.  Plaintiffs initially challenged the ordinance based on First Amendment and Equal Protection grounds, which were rejected by the U.S. District Court. The plaintiffs appealed to the Ninth Circuit after the District Court refused to allow them to add a Second Amendment claim in an amended complaint.
In the May decision, a three-judge panel of the Ninth Circuit affirmed dismissal of the plaintiffs’ First Amendment claim, holding that it was not convinced that Alameda had adopted the law to limit free expression among "gun culture" members or that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment.  The panel had also ruled in favor of the County on plaintiffs’ Equal Protection Clause argument. 
However, the panel ruled in favor of the plaintiffs on their Second Amendment argument, holding that they should be allowed to amend their complaint to add a Second Amendment claim because of recent decisions by the U.S. Supreme Court in the six years since they had initially raised their claim.  Specifically, the panel stated that:  “Since then, all of the Supreme Court’s modern Second Amendment case law has been created.  See McDonald v. Chicago, 130 S. Ct. 3020 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008).”  The panel then remanded the case to the District Court.
Based on this ruling, the full Ninth Circuit will have a chance to review Alameda County’s ordinance based on the analysis contained in McDonald and Heller. 

Wednesday, November 30, 2011

Identity of Anonymous Web Poster Protected by Illinois Court

As people increasingly turn to the internet for their news, online message boards and other forums are becoming a popular way for individuals to weigh in on current events and news stories.  Many users of these online message boards and forums post their comments and opinions using an anonymous user name.  Anyone familiar with these sites can attest to the diversity of opinions and viewpoints expressed by these anonymous posters, which can often be critical of a particular individual or topic and, in some cases, personally offensive.  The law is clear that anonymous speech is constitutionally protected. However, those protections do not extend to defamatory statements, raising the following questions:  (1) when is a particular comment defamatory such that it is not constitutionally protected and (2) can an individual discover the identity of an anonymous poster?

An Illinois appellate court addressed both of these questions recently in Stone v. Paddock Publications, Inc., 2011 IL. App (1st) 093386.  In that case, a village board trustee filed a defamation lawsuit relating to anonymous comments made against the trustee’s son.  An example of one of the anonymous poster’s comments is as follows:  “Seems like you are very willing to invite a man you only know from the internet over to your house – have you done it before, or do they usually invite you to their house?”  Other challenged comments are set out in the decision.  As part of her lawsuit against the anonymous poster, the trustee filed a petition seeking discovery of the poster’s identity.  The trial court granted the trustee’s petition, but the appellate court reversed the trial court’s decision. 

In reaching its decision, the appellate court created a new test for determining whether a plaintiff can pierce the veil of anonymity in online postings.  That test requires that a plaintiff establish that her complaint states a valid, legal claim for defamation.  If the plaintiff meets this initial test, then the court will order that the identity of an anonymous poster be revealed for use in the defamation lawsuit. 

In applying the test to the facts of this case, the appellate court found that the trustee was not entitled to the information because she could not meet her burden to show that the statements against her son were defamatory.  Specifically, the court determined that no reasonable person would find that the statements by the anonymous poster “stated a fact.”  In addition, the court found that the statements could be subject to an innocent construction.  In ruling that the plaintiff was not entitled to release of the poster’s identity, the appellate court stated as follows:

While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court’s order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their ‘tormenters’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals.  Putting publishers and website hosts in the position of being a ‘cyber-nanny’ is a noxious concept that offends our country’s long history of protecting anonymous speech.

While the appellate court refused to order the disclosure of the anonymous poster’s identity in this case, this decision certainly leaves the door open for another plaintiff under a different set of facts to obtain that information.  Online posters should be aware that their right to anonymous speech is not unlimited.

Tuesday, November 29, 2011

House Vote on Pension Reform Bill Expected Today

The House is expected to vote today on Senate Amendments 1 and 2 to House Bill 3813.   The bill, as amended by the Senate, is intended to close certain loopholes in the Illinois Pension Code to address recent situations that have allowed union leaders to collect both a government and union pension for the same service time or to base their government pension on their higher salary earned while employed with a labor union. The bill will affect police officers, firefighters, state university employees and downstate teachers, among other government employees. The bill also requires reporting of fraudulent activity to be reported to the applicable pension fund or state's attorney and changes the method for calculating "final average salary" for certain Chicago employees. 

UPDATE 11/29/11 - House Bill 3813 passes both houses and is sent to the Governor.

Monday, November 28, 2011

Deadline Approaching to Adopt Ordinance for a Referendum on Electric Aggregation

In order to place a referendum question on the issue of electric aggregation on the March 20, 2012 ballot, a municipality must pass an ordinance initiating the question on or before January 3, 2012.  For those municipalities that plan to cancel their second meeting in December, an ordinance should be placed on the agenda for action at their first meeting in December in order to meet the January 3, 2012 deadline. 

Last month, I reported on the Illinois statute that authorizes municipalities to enter into contracts with electricity suppliers on behalf of residents and small commercial retail customers within their jurisdiction.  The contracts provide for the bulk purchase of electricity from a supplier and then the sale of that electricity at fixed rates in municipalities. By aggregating the buying power of a large number of small customers, a municipality should be able to obtain a better rate for its residents than if residents shop for electricity on an individual basis. 

There are two ways to initiate the process.  The second type, the most popular option, is an "opt-out" program that automatically includes each residential unit and certain small commercial retail customers in the pool unless the customer affirmatively decides not to participate.  If the residents approve the referendum, the municipality must then develop a plan of operation and governance for the aggregation program and hold at least two public hearings on the plan.  An RFP must also be prepared and issued for companies to submit proposals to provide electric services to the municipality. Thereafter, the Illinois Power Agency Act mandates that the aggregated electricity supplier must notify customers of the rates, conditions of enrollment, and the option and method for customers to "opt-out" of the aggregation program.

UPDATE 2/6/2012:  The deadline for placing a referendum question on electric aggregation on the March 20th primary ballot has passed.  A number of Illinois municipalities met the deadline, so quite a few people will be voting on this issue in March.   For municipalities who have not yet put the electric aggregation referendum on the ballot, there is still plenty of time to have the question put on the ballot for the general election in November. 

Wednesday, November 23, 2011

Turkeys and Land Use?

Just last week, the board of county commissioners of Gibson County, Indiana reviewed a draft of a proposed subdivision control ordinance.  Apparently, the county currently has no zoning or subdivision regulations in place as land use regulation has been a controversial topic in the county for decades. 

The new subdivision ordinance would establish regulations for future minor and major subdivisions, including street, lot, and utility standards.  The proposed subdivision ordinance does not, however, regulate turkeys.  That became clear at a recent county commissioner meeting when a homeowner asked if the new ordinance would prevent a turkey farm from locating near her home.  The county attorney responded that the subdivision ordinance does not regulate or control the use of land, including turkey farming, concluding that:  “We do not have any type of zoning.” 

Besides providing a very simple illustration of the regulatory distinction between subdivision and zoning ordinances, this story is the only land use issue that is in any way relevant (yes, it's a stretch) to the upcoming holiday. 

Happy Thanksgiving!

Monday, November 21, 2011

Hearing on Landfill Petition Not "Fundamentally Unfair"

This case involved a decision by the Yorkville city council to deny a siting application to construct a landfill in the city.  The applicant, Fox Moraine, LLC, had challenged the denial with the Illinois Pollution Control Board (IPCB) on various grounds, including that the hearing was "fundamentally unfair" and the decision was inconsisent with the siting criteria required by law.  The IPCB ruled in favor of the city, and Fox Moraine appealed to the Second District Court of Appeals.

In considering the merits of Fox Moraine's appeal, the appellate court determined that although there were some questionable activities by certain city council members, the proceedings as a whole were not “fundamentally unfair.”  As a result, the appellate court upheld the IPCB’s decision affirming the City’s denial of the siting application.

While this case required the appellate court to consider criteria and procedures unique to landfill siting applications, the analysis used by the court to determine whether the proceedings were “fundamentally fair” can be instructive to municipalities in conducting other public hearings, such as those required for zoning applications.  For example, the case involved claims of bias on the part of the city council members and allegations that the members considered information outside the public hearing record - issues that could certainly find their way into a traditional zoning hearing.

To show bias, a petitioner must show whether a disinterested observer might conclude that the siting authority or its members had prejudged the facts or law of the case.  Here, the court determined that Fox Moraine had forfeited its claim of bias of certain council members by failing to raise the issue during the hearing, finding that the law is clear that a claim of disqualifying bias must be raised at the original proceeding.  The court also rejected Fox Moraine’s claim that the mayor was biased because she has no vote in the matter and there was nothing in the record to support Fox Moraine’s bias claims. The court further rejected Fox Moraine’s claim that the council rushed the final vote because fundamental fairness requires only that the record be made available for review by the entire council prior to voting and that the council’s decision be in writing and contain the reasons for the decision.  The court also found no evidence in the record to support Fox Moraine’s claim that one council member conducted her own research outside the record. 

As to Fox Maine's allegations of improper ex parte communications between city council members and the public, the appellate court recognized that these communications are inevitable because the members are local elected officials and not judges.  A reviewing court will not reverse a decision because a city council member has received an improper ex parte communication without evidence of prejudice to the petitioner.

The appellate court did, however, find certain actions by city council members to be questionable, including one council member’s creation of an anti-landfill website.  The court determined that this council member appeared to have pre-judged the application and may have failed to review the application based on the statutory criteria.  Nevertheless, the court determined that this was harmless error because even if the council member had been disqualified for bias, that would have left a majority of the council members voting against the application. 

The appellate court also rejected the city’s argument that a memorandum from its attorney was privileged, finding that the privilege had been waived by council members when they referenced the memorandum during the hearings.  Nonetheless, the court found that consideration of this memorandum by city council members without making it part of the record was harmless error as there was no prejudice to Fox Moraine.

Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Most municipalities understand that cellular facilities are necessary to serve the needs of residents who increasingly rely on their cell phones. The need to site antenna facilities in a particular community can, however, conflict with a municipality’s desire to preserve and protect property values and the aesthetic character of a community. The Telecommunications Act of 1996 was intended to strike a balance between respect for local land use control and promotion of competitive telecommunication services by establishing certain procedural and substantive regulations for local land use decisions on cellular facilities.

Two years ago, the FCC issued a ruling that clarified certain provisions in the Act. The ruling addressed three principle issues: (1) the time-frame for local zoning authorities to act on cellular zoning applications; (2) the right of cellular service providers to non-discriminatory treatment; and (3) whether ordinances requiring all cellular zoning proposals to apply for a variance are per se unreasonable.
One of the most significant issues addressed in the ruling was the establishment of a “shot clock” for a municipality’s evaluation and decision on a zoning application. The rationale behind the new time limits was that language in the Act requiring local governments to “act on any request…within a reasonable period of time,” was too vague.  A local zoning authority has 90 days (co-locations) or 150 days (all other applications) to make a final, written decision on a zoning application for a cellular facility. Once a zoning application is deemed complete, the shot clock begins to run. A municipality can have an additional 30 days to request additional information for the application, which tolls the clock. If a municipality fails to act within the time frames, there is a rebuttable presumption that the municipality has acted, or failed to act, unreasonably and the cellular provider can bring suit.

Cases in the past two years have considered a variety of challenges by cellular providers, including claims of shot clock violations and discrimination and bias on the part of municipal officials.  Based on these cases, there are a few tips that municipalities should consider in processing, reviewing, and deciding zoning applications for cellular facilities. 

One way to avoid a claim of unreasonable delay is for a zoning official to obtain the provider’s consent to extensions of time. While repeated delays might test the bounds of a provider’s patience, limited extensions for substantive purposes should be granted if the parties are acting in good faith. In at least one case, a court held that a provider that agreed to an extension of time was barred from making a claim for unreasonable delay so long as a final decision was made within the extended time.
As a general rule, courts have upheld zoning decisions by municipalities that have treated cellular zoning applications similarly to other applications, and have applied objective standards in a non-discriminatory manner.  Courts have also been reluctant to grant injunctive relief to a cellular provider solely because a municipality violated the shot clock requirements.  However, a court might be more favorably inclined to issue an injunction if it finds that the municipality's delay in processing an application is based on some bias against the provider.  For that reason, municipalities should remind their zoning board, plan commission, and corporate authorities to review cellular zoning applications dispassionately since courts have easily seen through decisions that are rooted in a pre-existing bias against wireless facilities.  

Post Authored by Adam Simon.

Friday, November 18, 2011

Handouts Available for Municipal Law Seminar

Ancel Glink attorneys conducted a municipal law training session for local government officials in Normal, Illinois, on November 17, 2011.  The presentations included the following topics:

You can download a copy of the handout materials for each of the sessions by clicking on the topic link above.

Thursday, November 17, 2011

Texts on Personal Cell Phones Must be Released under FOIA

UPDATEBoth a circuit court and appellate court upheld the PAC ruling that the cell phone records were releasable under FOIA. You can read about the circuit court ruling here and the appellate court ruling here.

In a binding opinion dated November 15, 2011, the Illinois Attorney General determined that the City of Champaign violated the Illinois Freedom of Information Act when it partially denied a request for text messages sent between city council members on their personal cellphones during city council meetings. 

A news reporter had filed a FOIA request for all electronic communications, including cell phone text messages on city-issued and personal cell phones, city-issued and personal email addresses, and Twitter accounts.  The city approved the request in part by releasing those records that were in the city’s possession, including communications that "passed through" city equipment.  However, the city denied the request for emails, text messages, and other electronic communications on city council members' private computers or cell phones.  The city's justification for the denial was that these communications were not “public records” under FOIA.  The reporter appealed the city’s decision to the Public Access Counselor’s (PAC) office of the Attorney General. 

The PAC's analysis turned on “what is a public record?”  The PAC first determined that electronic communications that do not relate to city business (such as messages regarding personal meetings or family matters) are not public records subject to FOIA, whether those communications are sent via city-owned equipment or personal equipment.  

The PAC next determined that electronic communications by public officials that relate to city business are public records subject to FOIA, regardless of how the communications are sent.  In this case, the PAC determined that the city violated the Act by not providing text messages and emails between city council members that pertained to city business, even if the communications were created on private equipment that the city had no control over.  The city was ordered to furnish copies of the records to the reporter.

This opinion raises a number of interesting issues for public bodies and officials.  First, the statute that authorizes the PAC to issue binding opinions on FOIA matters states that the opinion is binding on the requestor and the public body.  The statute is silent as to whether a binding opinion creates any precedent, raising the question whether this particular opinion would apply to other governmental bodies.  Of course, even if the opinion were not binding precedent similar to an appellate court decision, in all likelihood, the PAC would take the same position if faced with similar circumstances in another community.

The next question is whether the retention obligations under the Local Records Act are also triggered for these records, meaning that local governments would have to maintain and retain these electronic communications unless permission is granted to destroy them?

That raises a more practical issue:  how can a local governmental entity respond to a FOIA request within the statutory time frame when the records being requested are not under the control of the government body?  A related question is how can a local government meet its retention obligations under the Local Records Act where it has no control or possession over the records?

Although this opinion is binding only on the City of Champaign and the reporter who requested the records, public bodies and officials need to be aware of the position being taken by the PAC with respect to electronic communications.  Local officials who use their personal cell phones, computers, tablets, and other electronic devices to communicate on government business should be advised that their communications may be subject to FOIA, even if they do not “pass through” city equipment.  Local governments may need to consider implementing local policies to govern the use of personal equipment for communications about government business consistent with the PAC’s opinion.
Post authored by Julie Tappendorf, Ancel Glink.