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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

Monday, October 31, 2011

NLRB Issues Report on Employee Social Media Cases

Local government employers, like other bosses, are struggling with critical social media posts by employees.  Can an employer terminate or discipline a worker for complaining about his or her boss or company on Facebook?  Will social media policies protect an employer?  The answers to these questions are not yet clear, although a report recently issued by the National Labor Relations Board (NLRB) will provide some guidance.

In a recent report issued by the acting general counsel of the NLRB, the NLRB reviewed 14 cases involving investigations into the use of social media by employees.  A copy of the report can be found on the NLRB's website.  A summary of a few of these cases follows:

In one case, the NLRB ruled that a nonprofit employer unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance that had been previously expressed by one of their coworkers.  The workers were found to be engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow co-workers on Facebook.  The NLRB cited the Meyers ruling that an activity is concerted when an employee acts "with or on the authority of other employees, and not solely by and on behalf of the employee himself."  In this case, the discussion was initiated by one worker in an appeal to her coworkers on the issue of job performance, resulting in a "conversation" on Facebok among coworkers about job performance.  The NLRB ruled similarly in three other cases included in the report.

In another case, however, the NLRB ruled that a reporter's Twitter postings did not involve protected concerted activity.  Encouraged by his employer, a reporter opened a Twitter account and began posting news stories.  A week after the employee posted a tweet critical of the newspaper's copy editors, the newspaper informed the employee he was prohibited from airing his grievances or commenting about the newspaper on social media.  The reporter continued to tweet, including posts about homicides in the City and a post that criticized an area television station. The newspaper terminated the reporter based on his refusal to refrain from critical comments that could damage the goodwill of the newspaper.  The NLRB found that the employee's conduct was not protected and concerted because it (1) did not relate to the conditions of employment and (2) did not seek to involve other employees on issues related to employment.  The NLRB issued a similar ruling in a case involving a bartender who posted a Facebook message critical of the employer's tipping policy, finding the posts mere "gripes" that are not protected.

The NLRB also ruled that several employer social media policies were overbroad where the policies could be construed to prohibit protected conduct.

What does this mean for local government employers?  First, employers must be cautious in disciplining or terminating employees for critical posts on social media sites.  An employer should ask itself whether  the posts are "protected and concerted activity" or merely constitute "gripes" about an employer that are not protected?  Second, an employer should review its social media policy to make sure it is not overbroad in prohibiting protected activities.  Finally, an employer should be careful not to enforce social media policies in an arbitrary or discriminatory manner.

Friday, October 28, 2011

Annual Review of the Law Just Published by The Urban Lawyer

The State and Local Government Law Section of the American Bar Association, with the University of Missouri-Kansas City School of Law, just released the “Annual Review of the Law” edition of The Urban Lawyer.  This national journal on state and local government law includes more than a dozen articles on recent developments in the area of local government and land use law.

Three Ancel Glink attorneys contributed articles to this publication.  Julie Tappendorf, author of this blog, with co-author Brent Denzin, wrote an article titled “Turning Vacant Properties into Community Assets Through Land Banking.”  A copy of this article is available for download on the publications page of this blog.  In addition, David Silverman authored the article “Green Transportation:  Roadblocks and Avenues for Promoting Low-Impact Transportation Choices.” 

This edition includes a number of other articles of interest to local government officials, including articles on ethics in land use written by Patty Salkin, land use regulation of cellular telecommunication facilities written by Robert Foster, recent developments in condemnation law authored by Robert Thomas, and religious land use developments written by Dan Dalton.  

Wednesday, October 26, 2011

Upcoming Audio/Web Conference on Social Media and Ethics

On November 9, 2011, from 4:00 to 5:30 p.m. ET (3:00 to 4:30 p.m. CT), the American Planning Association (APA) will present an audio/web conference titled “Social Media and Ethics.”  The APA describes the program as follows:

"In this brave new world of media, what is ethical? Social media applications have created new ways to communicate but are seldom addressed in administrative rules. What can you say to whom, and how? This Audio/Web Conference explores how social media affect planners and planning commissioners and whether ethical considerations are the same for both groups.”

I will be presenting the program with Patty Salkin, Associate Dean at the Albany Law School and author of the popular land use blog "Law of the Land.” 

For more information about the program and to sign up, visit the APA’s website at:  http://www.planning.org/audioconference/series/socialmedia.htm

Tuesday, October 25, 2011

Municipal Electric Aggregation

A number of municipalities are taking advantage of an Illinois statute that allows municipalities, after referendum approval, to enter into contacts with electricity purchase agreements on behalf of  consumers within their jurisdiction.  The agreements provide for the bulk purchase of electricity from Commonwealth Edison and then the sale of that electricity at reduced rates in municipalities that have approved the concept.  By aggregating the buying power of a large number of small customers, a municipal entity should be able to get a better deal for its customers than if they shop for electricity on an individual basis. 

To initiate the process, a municipality must place a referendum question on the ballot.  If the referendum is approved, then the municipality can choose one of two programs for the purchase of electricity.  The first type is an "opt-in" program that requires an individual customer to enroll in the electricity aggregation program before being included in the pool of customers.  The second type is an "opt-out" program that automatically includes each household in the pool unless an individual affirmatively decides not to participate.  The second type is the most popular program because customers are more likely to utilize this service if it is provided to them on a default basis.  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 be prepared and issue for the services, and the municipality must notify customers of the rates, conditions of enrollment, and if applicable the option for customers to “opt-out” of the aggregation.
Because of the complexity of the process, many municipalities have either retained a consultant familiar with the electric aggregation process or joined forces with other municipalities in moving forward with the aggregation process.

In 2011, 24 municipalities in Illinois placed referenda on their ballots.  21 of these referenda were approved.  Given the popularity of this program, many more communities are likely to place referenda on the Spring 2012 ballot.

For more information about electric aggregation, you might review the article published by the Illinois Municipal League in the October 2011 edition of the Municipal Review.  

Friday, October 21, 2011

Constitutionality of Chicago’s Public Expression Policy Analyzed by Seventh Circuit Court of Appeals

In Marcavage v. City of Chicago, the Seventh Circuit Court of Appeals considered a constitutional challenge to the City’s public expression policy filed by protestors of the seventh annual Gay Games in Chicago.  Plaintiffs, members of the Christian ministry organization “Repent America,” had appeared at various events held during the Games.  After Chicago police officers ordered the plaintiffs to change the location of their protest at events held at Soldier Field, Wrigley Field, Navy Pier, and Gateway Park, plaintiffs filed a lawsuit claiming that the City had violated their First Amendment rights to free speech, their Fourteenth Amendment right to equal protection, their rights under the Illinois Religious Freedom Restoration Act, among other claims.  The district court granted the City’s motion for summary judgment on all counts, and the plaintiffs appealed to the Seventh Circuit.
The court of appeals upheld the district court’s ruling that Chicago police officers did not violate the First Amendment when they ordered the protesters to move from one area at Soldier Field and Wrigley Field to designated areas.  The appellate court found that the officers’ actions were content-neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels for communication. The court also rejected plaintiffs’ claims that the officers violated their right to equal protection finding that the plaintiffs were not similarly situated to other users of these areas.  Finally, the court determined that police did not violate the Fourth Amendment when they arrested the protestors because probable cause existed for their arrest.  The court also found that the restrictions on public expression at Navy Pier did not violate the Illinois Religious Freedom Restoration Act because the city properly designated it a non-public forum. The court did, however, remand the case to the district court to determine whether the public expression policies at Gateway Park are appropriate given that the park is a traditional public forum.

Thursday, October 20, 2011

Municipal Regulation of Urban Agriculture

Urban agriculture has taken on a new life recently, driven by an emphasis on local and organic food, as well as the economic downturn.  Small vegetable gardens in the back yard are rarely a cause for concern.  But, what if an owner replaces lawns with row after row of crops?  What if that same owner sells the crops at the local farmers' market?  Finally, what if a property owner decides to raise chickens, goats, or other livestock?  Are these agricultural uses consistent with a municipality's existing zoning regulations? 

Municipalities are addressing the zoning issue in a variety of ways.  Some municipalities have cited property owners for illegal agricultural uses in a residential district.  For example, DeKalb County, Georgia cited a property owner for growing too many vegetables on his two-acre residential lot.  The issue centered on the owner's sale of the crops at the farmers' market, turning this otherwise lawful use into an illegal commercial use.  The owner was fined $5,000, but eventually was successful in rezoning his property to allow the commercial agricultural use.  Similarly, Lee County, Florida cited a property owner for keeping 10 chickens on a residential property.  In Hollywood, Florida, a lawsuit was filed by a property owner challenging the legality of his neighbor keeping 15 chickens on the property. 

Other communities have amended their zoning ordinances to allow limited agricultural uses in residential zoning districts.  Denver, Colorado enacted an ordinance that allows residents to keep chickens and goats.  Northbrook, Illinois amended its zoning ordinance to allow front yard vegetable gardens.  The City Council in Naperville, Illinois declined to amend its zoning ordinance to require permits for chicken coops and to establish a 25-foot distance between a chicken coop and any neighboring home.   Chicago amended its zoning code earlier this year to expressly authorize urban farming of fruits, vegetables, and fish.

What does this mean for local governments?  As an initial matter, the municipality should determine its position on urban agriculture.  Are vegetable gardens acceptable but not the commercial sale of crops?  Does a municipality want to allow livestock in residential districts?  Should a municipality impose lot size or locational restrictions on urban agricultural uses?  Once a municipality has identified the scope of acceptable agricultural uses, then it should examine its existing zoning regulations to determine whether amendments are necessary.  A municipality should be prepared for citizen opposition to any proposal to expand agricultural uses involving livestock or other animals (chickens, bees, goats) in residential zones. 

Tuesday, October 18, 2011

Chicago Considers Amending Vacant Property Ordinance that Defines Banks as Owners

This summer, the Chicago City Council passed a vacant property ordinance that established certain property maintenance obligations on the owners of vacant property. The ordinance became effective in September and defines any entity that holds the mortgage on a property as a property owner.  Under the ordinance, a lending institution would become responsible for maintaining properties on which it holds mortgages even before foreclosure.

Banks had raised questions about the legality of the vacant property ordinance, claiming it was unconstitutional because it was overly broad and a violation of the equal protection rights of lenders who may be listed as mortgagee on the property, but not the official owners of title.  A number of banks had threatened to sue the City over the ordinance.

This week, a revised ordinance was introduced before a City Council committee. The new proposal is a compromise between City officials and banks and would require banks to start maintaining vacant properties within 60 days of default on a mortgage.  The required maintenance would include securing or boarding up of buildings, mowing the grass, and shoveling the snow, among various other maintenance obligations.  Signs would also have to be posted with contact information for those responsible for the properties.  Violations could lead to fines of up to $1,000 a day.

Monday, October 17, 2011

New Economic Development Financing Authority

The Illinois General Assembly recently enacted Public Act 97-0094, authorizing municipalities to appropriate and spend public money for economic development purposes.  The new statute is set out below:
65 ILCS 5/8-1-2.5.  Expenses for economic development.  The corporate authorities may appropriate and expend funds for economic purposes, including, without limitation, the making of grants to any other governmental entity or commercial enterprise that are deemed necessary or desirable for the promotion of economic development within the municipality. 
The Illinois Municipal League supported the legislation, which the League described as a necessary tool for municipalities in attracting businesses given the current economic climate.  This new authorization is particularly important for non-home rule municipalities who have been limited in their ability to expend public funds for economic development.  This new statute will allow municipalities to be more creative in incentivizing economic development beyond what is currently authorized in the Illinois TIF and business district statutes, as well as existing statutory authority to rebate sales and property taxes. 
The statute is too new to determine what limitations an Illinois court might place on the use of public funds for private development.  At the very least, when a municipality approves a grant or other economic incentive for a development or project, it should consider adopting specific findings that the development or project is necessary or desirable to the promotion of economic development within the municipality. 

Wednesday, October 12, 2011

Is Content Posted to a Social Media Site a Public Record that Must be Retained?

Most states have record retention laws that require local governments to preserve and retain public records unless permission is granted for destruction of a particular record or category of records.  With more local governments establishing a social media presence on Facebook, Twitter, and other popular sites, questions have arisen as to whether these sites, and content posted on these sites, are considered "records" that must be retained under state record retention laws.  The Attorney General in at least one state (Florida) has issued an opinion that social media content is a public record that must be retained.  The New York State Archives has issued a preliminary opinion that social media content is likely to be subject to state record retention laws and should be preserved.  The Secretary of State for the State of Washington has published guidelines to assist local governments in determining whether social media content is a public record subject to preservation.  It is likely that other states will follow. 

In Illinois, there are no current policies in place to govern the retention or preservation of local government social media content.  The Illinois Local Records Management Services recently announced that it was in the process of drafting a social media retention policy.  Because it is expected to take some time before a final policy is issued, it is recommended that local governments retain, capture, or archive electronic publications and records to the extent possible.  Certain records that link to the local government's web page are in and of themselves original documents and should be archived according to current record retention requirements.  For example, ordinances and minutes of meetings that are typically posted on a web site as a convenience to the public are also available as a paper record.  Since the web-linked version is not the original source of these documents, it should not need to be archived.  However, content that is originally created on a social media site such as Facebook or Twitter that does not exist in any other form may need to be captured and archived until permission is obtained to destroy the record. 

Thursday, October 6, 2011

Municipalities Required to Post Employee Salaries

The Illinois General Assembly recently enacted Public Act 97-0609 amending the Illinois Open Meetings, and the Illinois Pension Code.  The new posting requirements are effective January 1, 2012, and require the following: 
  • Within six days after approving its budget, an IMRF employer must post the total compensation package for each employee receiving a total compensation package that exceeds $75,000 a year.
  • At least six days before an IMRF employer approves an employee’s total compensation package that will equal or exceed $150,000 a year, the employer must post the total compensation package for that employee.
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.

The Act also amends various provisions of the Illinois Pension Code.

Tuesday, October 4, 2011

U.S. Supreme Court Blocks Appeal of Megachurch Case on First Day of 2011/2012 Term

On October 3, 2011, the U.S. Supreme Court declined to hear the City of San Leandro’s appeal of the Ninth Circuit Court of Appeal’s decision in favor of Faith Fellowship Foursquare Church, a 2,000-member church that sought to open a new church in an industrial zone. 
The facts are set out in the Ninth Circuit decision in International Church of the Foursquare Gospel v. City of San Leandro.  The church had contracted to purchase a parcel of land zoned in the City’s industrial district.  At the time the church signed the contract, churches were not allowed in the IP district.  The church applied for a zoning text and map amendment.  Shortly thereafter, the City decided to amend its zoning code to create an assembly use overlay district.  The overlay district would cover approximately 200 parcels of land in various non-residential zoning districts.  In order to establish an assembly use on its property, an owner would have to establish that the property met eight criteria.
During the hearing process for the zoning code amendments, the church closed on the purchase of its property.  After the zoning code amendments were approved, the church applied for approval of its proposed church.  The City denied the application because it did not meet two of the eight criteria under the new overlay district requirements, and the church sued. 
A federal judge had previously dismissed the church's suit, but the Ninth Circuit held that the church was entitled to define its own religious mission and could argue at a trial that its rights outweighed the City's revenue needs.  The Ninth Circuit determined that although the zoning code amendments were facially neutral and generally applicable, the City’s individualized assessment of the church’s rezoning application was not because (1) that there were no alternative sites readily available to the church; (2) the church’s core beliefs required that all congregants worship at the same time and same place; (3) all 196 parcels identified as appropriate for the overlay district failed to meet at least one of the eight criteria; and (4) the City’s interest in protecting properties for industrial uses was not compelling. 

The church sold the building at a loss last year and claims damages of nearly $4 million. The U.S. Supreme Court’s denial of certiorari means that this case will move forward to trial.

Monday, October 3, 2011

Developer had Vested Right to Develop Residential Subdivision

In a recent decision, an Illinois appellate court upheld a trial court’s ruling that a developer had a vested right to develop a 20-lot residential subdivision and ordered the City to approve the development plans.  Reserve at Woodstock, LLC v. City of Woodstock, et al..  The court also invalidated the City's rezoning and disconnection ordinances, finding that the City violated its duty of good faith and fair dealing under the annexation agreement.
The annexation agreement in question had been approved in 1993, with a 20 year term.  No development occurred on the property for a period of 10 years.  In 2003, the plaintiff (Reserve) submitted plans for approval of a 26-lot subdivision.  The Plan Commission recommended denial because the annexation agreement only allowed the development of 20 lots.  Three years later, Reserve submitted plans for a 20-lot subdivision.  The Plan Commission recommended approval of the revised plans but the City Council denied Reserve's application. 
Reserve filed suit against the City in October of 2006.  One month later, the City rezoned the property to the agricultural zoning district, and disconnected the property in September of 2007.  The trial court ruled in favor of Reserve on all of its claims.
The appellate court determined that Reserve’s case turned on an interpretation of two somewhat conflicting provisions in the annexation agreement.  The first provision prohibited the municipality from rezoning the property during the life of the agreement.  The second provision provided that if the property was not developed within 5 years of annexation, the municipality had the right to rezone and disconnect the property.  The City claimed that it had an absolute right to rezone and disconnect the property under the second provision.  Reserve claimed that the City’s right to rezone was restricted by its contractual duty of “good faith and fair dealing."
The appellate court agreed with Reserve, finding that the City violated its duty of good faith and fair dealing where it waited to rezone and disconnect the property until more than 7 years after the "right to rezone and disconnect" provision of the annexation agreement had been triggered and only after Reserve had submitted development plans for approval.  The court also found that Reserve had a vested right to the approval of its plans for a 20-lot subdivision, based on the substantial expenditures it made in good faith reliance on the zoning and annexation agreement.