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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

Tuesday, December 31, 2013

PAC Opinions 2013 In Review

2013 did not look too different from 2012 with respect to the outcomes of PAC rulings this year - although, we did have our first PAC ruling in favor of the public body (PAC 13-010).  We also had a PAC ruling overturned by the appellate court (PAC 13-007).  The PAC also ruled that the Attorney General properly denied a FOIA request under the unduly burdensome "exception", basically ruling that its own office acted lawfully. 
Enjoy the recap and Happy New Year!
PAC Opinions 13-001, 004, 005 and 009 (duty to respond)
In these virtually identical opinions, the Chicago Public Schools, the villages of Caseyville and Cleveland, and Chicago State University all violated sections 3(d) and 9(a) of the FOIA by failing to respond to a request for records within five business days. Each governmental body also failed to participate in the PAC’s review process. PAC 13-004, PAC 13-005.

PAC Opinion 13-002 (improper final action)
In PAC 13-002, the Chicago Park District Board of Commissioners took improper final action by voting to increase admission fees at three museums, when that topic was not on the agenda for the open meeting. The agenda stated: "Communications and Reports: Committee on Programs and Recreation," without identifying the particular subject matter from the earlier committee meetings that would be addressed with final action by the board.

PAC Opinion 13-003 (final action)
In PAC 13-003, the Western Illinois University Board of Trustees violated section 2(e) of the OMA by taking final action in a closed meeting. Although the board was authorized to discuss the employment of a tenured faculty member during closed session, the board improperly took final action by voting in the closed meeting to terminate the employee.

PAC Opinion 13-006 (secret ballots)

In PAC 13-006, the Edgar County Airport Advisory Board violated OMA section 2(e) when it voted by secret ballot to recommend to the county a candidate to fill a vacant seat on the advisory board. The board read aloud the names of candidates during a public meeting, the members voted on paper ballots, and the results of the vote were stated publicly, without disclosing the members’ individual selections.

PAC Opinion 13-007 (closed session issues)

In PAC 13-007, the Board of Education for Springfield Public School District No. 186 violated OMA section 2(e) by taking final action on an employment separation agreement in closed session. The board signed the agreement in closed session on February 4, but did not vote on the matter in an open meeting until March 5, some five days after the PAC sent notice to the board of the complaint filed against it. The board also failed to record some of its closed sessions in violation of section 2.06(c), and it failed to summarize the closed-session discussions in violation of section 2.06(e)(3).
Update on PAC Op. 13-007: A Sangamon County Judge overturned the PAC ruling, holding that the school district board members did not violate the OMA by signing the separation agreement in executive session. The court also remanded the matter back to the PAC to investigate further whether the district violated the OMA by not discussing the terms of the agreement prior to its vote (the court acknowledged that the district did post information about the terms of the agreement on its website).

PAC Opinion 13-008 (basis for litigation)

In PAC 13-008, the New Lenox Public Library District Board of Trustees violated the OMA by failing to record and enter into its closed-session minutes the basis for asserting that litigation was probable or imminent. The PAC found that the board’s reasons for believing the litigation was probable or imminent were justified and the closed-session discussions were appropriate, but the failure to record those reasons in the minutes violated section 2(c)(11) of the Act.
PAC Opinion 13-010 (nature of the matter)
 In a rare decision in favor of a governmental entity, the PAC determined the Board of Education for Springfield Public School District No. 186 did not take final action in a closed session, as alleged by the complaining party, nor did it violate section 2(e) of the OMA because it adequately informed the public of the nature of the business being conducted before it voted in an open meeting to appoint an interim superintendent. PAC 13-010. The board properly discussed candidates in closed meetings and "informally agreed" on the likely appointee, but the board followed those discussions with a duly noticed open meeting during which it voted on the candidates.

PAC Opinion 13-011 (internal investigations)

The City of Bloomington violated FOIA section 7(1)(n) by improperly withholding investigatory records and citations related to a traffic accident involving the city’s assistant chief of police. The PAC found the city never "adjudicated" the underlying allegations against the police chief, and therefore the records related to the imposition of final discipline were not exempt from disclosure.
PAC Opinion 13-012 (possession of records)

The UNO Charter School Network ("UCSN") violated FOIA section 3 by failing to provide records that were in the possession and control of its subsidiary organization, UNO Advantage Charter School, Inc. ("UNO"). The PAC found that UCSN was the "governing body" of UNO, and both were subject to the FOIA pursuant to the Illinois Charter Schools Law. The two organizations were so closely related that the PAC ruled UCSN had control of documents that were in the possession of UNO, and therefore UCSN should have provided all requested documents from both entities.
PAC Opinion 13-013 (duty to respond)

In PAC 13-013, the City of Harvey violated FOIA sections 3(d) and 9(a) by failing in part to respond to a request for records within five business days. The city timely provided some of the requested documents, but additional records could not be located and therefore were not disclosed. The PAC ruled that failing to provide records that cannot be located is a denial of the FOIA request, and the city’s failure to inform the requester of this denial violated the Act.

PAC Opinion 13-014 (location of meetings)
In PAC 13-014, The Board of Trustees of the Broadlands-Longview Fire Protection District violated OMA section 2.01 by holding a special meeting at a location that was not "convenient and open" to the public. The board held the meeting at its attorney’s law office in Springfield, which is some 26 miles from the board’s regular meeting place at the fire station in Broadlands.

PAC Opinion 13-015 (preliminary or draft records)

The Illinois State Police violated FOIA by failing to turn over preliminary monthly crime report statistics submitted to the ISP by the Harvey Police Department. The ISP had denied the request based on the "draft document" exception, arguing that the statistics were still preliminary in nature, and had not yet been reviewed or published by the ISP. In PAC 13-015, the PAC disagreed, concluding that the mere fact that records are subject to review and further revision does not render them preliminary for purposes of the preliminary records exception.
PAC Opinion 13-016 (description of final action)

In PAC 13-016, a school district in violation of the Open Meetings Act because it failed to name the employee when it took final action to terminate the employee in open session. The PAC rejected the district's argument that it was protecting the reputation and privacy of the employee by not disclosing the employee's name in its vote, concluding that taking "final action" without disclosing the name of the employee terminated by the school district board deprived the public "of any meaningful information concerning the practical effect of the Board's decision."

PAC Opinion 13-017 (police report and discovery)

In PAC 13-017, the city denied a FOIA request for a police report, citing 7(1)(d) of FOIA that exempts law enforcement records because release would interfere with ongoing law enforcement proceedings and deprive a person of a fair trial. The PAC concluded that the City did not meet its burden of showing by clear and convincing evidence that FOIA prohibited disclosure because the City failed to provide enough detail about the ongoing investigation and how the disclosure of the records would deprive a person of a fair trial. The PAC also rejected the City's argument that the requester should obtain the records through discovery, stating that just because records might not be available through discovery does not mean that they should not be accessible through FOIA.

PAC Opinion 13-018 (outside consultant records and fees)
In PAC 13-018, a union group submitted a FOIA request seeking city records relating to a sidewalk/curb improvement project. Although the city provided copies of some of the records, it informed the requester that it would have to pay $1,136.00 for copies of records held by the city engineering consultant to cover the city's actual costs. The PAC ruled against the City, finding that under the city's agreement with the private engineering firm and the FOIA statute, the requested records were public records and the city could not charge the requester for the costs of search and personnel time.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, December 30, 2013

Peterson's Termination Upheld by Appellate Court

Stephen Peterson was an officer in the Village of Oak Brook Police Department.  In 2010, the Department filed charges against Stephen alleging misconduct relating to his father, Drew Peterson, who was being investigated in connection with the death of his second wife and disappearance of his third wife.  Specifically, the Village alleged that Stephen's acceptance of weapons and money from his father, among other conduct, formed the basis for a charge of obstruction of justice.  In 2011, the Oak Brook Board of Fire and Police Commissioners found Stephen guilty and discharged him from the Department. Stephen appealed his discharge to the trial court, which upheld his termination.
On appeal, Stephen argued that his actions did not violate any Department policy and that the Board's decision was erroneous and a violation of his due process rights.  The appellate court disagreed, finding that the Board's decision to discharge Stephen was reasonable and not against the manifest weight of the evidence. The court also rejected Stephen's due process claim.  Peterson v. Village of Oak Brook (Rule 23 Order).

Post Authored by Julie Tappendorf, Ancel Glink

Friday, December 27, 2013

Motorist's Conviction for Using Cell Phone in School Zone Upheld on Appeal

The Village of Schaumburg ticketed a motorist for failure for using a cell phone in a school zone in violation of the Illinois Vehicle Code. He was found guilty and assessed a $100 fine.  The motorist appealed, claiming he was not using his phone at the time and school was not in session.  He included a copy of his cell phone records with his brief, arguing it was evidence that he was not using his phone prior to the traffic stop. 
In a Rule 23 Order in Village of Schaumburg v. Kurter, the appellate court refused to consider the phone records attached to the brief because it was not a proper method of supplementing the record.  The court also presumed the court's ruling had a sufficient basis because the motorist failed to include a transcript of the trial.  As a result, the trial court's judgment against the motorist was affirmed.
Even if the court had allowed the cell phone records in, it's not clear they would have been enough to support the motorist's case since the records would only demonstrate call or text activity, and would not capture other common smart phone activities such as playing Candy Crush or Words with Friends.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, December 26, 2013

Florida Social Media Ethics Rules Challenged by Law Firm

From Strategically Social:  A Florida law firm filed a lawsuit against the Florida Bar challenging the state attorney ethics rules. Specifically, the firm claims that recent amendments to the attorney advertising rules to now include social media sites violate the firm's First Amendment rights and are unconstitutionally vague.
In Searcy v. Florida Bar, the law firm of Searcy, Denney, Scarola, Barnhart & Shipley claims that the new rules are overly restrictive as they require all statements on social media to be "objectively verifiable." The new rules became effective in May, after the Florida Supreme Court approved the amendments to the advertising rules that removed a previous website exemption from the advertising rules.
The law firm had recently been found in violation of the "objectively verifiable" rule for certain opinions and statements about the firm's services and past cases on its website. The Florida Bar also found the firm's LinkedIn profile in violation because the subjective opinion of a former client was not "objectively verifiable" and because the LinkedIn site automatically described the firm's practice areas as "specialties."
The law firm claims that the rules are too vague to apply, and it isn't clear what information is allowed and what information must be removed from its website and social media sites.  The law firm claims that under the new rules, even Abraham Lincoln would have been found in violation:
"Indeed, Florida's rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with 'promptness and fidelity' — two words that are no more 'objectively verifiable' than those the Bar concludes violate its ethics rules here."
Although the case is challenging Florida's attorney ethics rules, it is a case worth watching by lawyers and law firms across the country.  This blog has raised questions about how LinkedIn's specialty and endorsement features might trigger compliance issues with attorney ethics rules, including advertising and certification restrictions, and the New York bar has already weighed in on this issue, finding that law firms could not list specialties on its LinkedIn profile.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 24, 2013

Court Rejects the "Self-Critical Analysis" Privilege

If you happen to find yourself in an Evidence classroom at most law schools around the country, chances are that you will hear a professor fret over the erosion of evidentiary privileges that protect certain documents from discovery in a lawsuit.  Indeed, the growth of electronic communications has made it even harder to keep information out of the hands of a third party capable of destroying the privilege. Those law school professors may continue to fret when they read Harris v. One Hope United, Inc.

In Harris, the defendant, One Hope, contracted with the Illinois Department of Children and Family Services (DCFS) to provide services to keep troubled families together. Sadly, a seven-month old girl under One Hope’s care died. Attorneys for the Public Guardian deposed the chief executive of One Hope, who revealed the existence of a "Priority Review" report. This report examined whether One Hope’s services were professionally sound, identified problems in its delivery of services, and evaluated whether the outcome was successful. One Hope refused to produce the report in discovery, claiming it was protected by the self-critical analysis privilege, and continued to resist even after being ordered by the court to produce the report.

The privilege claimed by One Hope has been applied by federal and state courts around the country, and protects from discovery in a lawsuit any information that was derived from a self-critical analysis.  The privilege usually applies to reports created by an organization (including government entities) in the wake of an accident or other incident when the organization expects the report to remain confidential. The policy behind this privilege is "to encourage companies to engage in candid and often times critical internal investigations of their own possible wrongdoings."

On appeal, the appellate court rejected One Hope's claim that the report was protected by the "self-critical analysis" privilege.  Although the court recognized that the intent of this privilege was to encourage organizations to examine and rectify their wrongdoings, it noted that the Illinois Supreme Court disfavored judicial creation of evidentiary privileges. It concluded that since there was no precedent for the privilege in Illinois law, it could not recognize it.

So, what does this mean for local governments?  Based on this ruling, government officials and employees should be careful what they write in an internal memo because it is more likely than not that all of an entity's internal correspondence, even if it was meant to be confidential, will come out in a lawsuit through discovery. When an organization makes a mistake, it should be careful about how it deals with and should also avoid creating detailed self-critical reports that might clearly show fault.

To learn more about more about what can be done to avoid lawsuits, check out Ancel Glink’s resource page at http://www.ancelglink.com/Resource. Also, stay tuned for Ancel Glink’s litigation website, coming in 2014, which will be full of resources to help your organization protect itself from liability.

Post Authored by Matt DiCianni, Ancel Glink

Monday, December 23, 2013

Political Groups Sue County for Ban on Use of Meeting Space

Two Tea Party groups have sued the district attorney and other officials in Brazoria County, Texas, for banning their meetings in the courthouse annex. The groups claim that they were allowed to meet in the annex for three years, until the county changed its policy in October, 2012. The complaint alleges that other political groups such as the Alvin Area Republican Women are still allowed to use the facilities, demonstrating that the county's ban on the tea party groups' use was a content and viewpoint-based restriction that violated their First Amendment rights.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, December 20, 2013

IML Adopts 2014 Legislative Principles and Policies

The Illinois Municipal League has adopted a "Legislative Principles and Policies" for 2014, which sets the League's mission statement and goals. This document amends a previous "Illinois Municipal Policy" guide that was adopted in 1996. 
The League's stated mission statement is as follows:
Mission Statement
For those who believe in keeping decision-making local, the Illinois Municipal League is Illinois' statewide community-focused lobbying and educational organization "whose special interest is the people" so municipalities can have a powerful resource and voice in Springfield.

The League has adopted five "core principles," as follows:


Core Principles
  • Maintain Local Control
  • Preserve Home Rule Powers
  • Oppose Unfunded Mandates
  • Preserve the Right of Municipalities to Decide Employee Wages and Benefits
  • Protect State-Shared Revenues
Finally, the League details specific tasks it intends to undertake in order to reach the goals set out in the 2014 document, including its support of home rule powers, municipal taxation and state distribution of local share of taxes, pension reform, intergovernmental cooperation, and open records and meeting balance.
You can read the 2014 Legislative Principles and Policies Guide on the IML's website.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, December 19, 2013

School District Must Comply With Local Zoning

UPDATE:  An appellate court affirmed the trial court's ruling, and now the case has been appealed to the Illinois Supreme Court.

A McHenry County Circuit court recently ruled that a Crystal Lake school district cannot ignore local zoning regulations.  In Gurba v. Community H.S. Dist. 155, a high school installed bleachers at its football stadium without applying for a variation from the height restrictions in the Village of Crystal Lake's zoning code. Adjacent property owners sued the school district, alleging that the school district was in violation of local zoning laws.  The City also argued that the school district was required to comply with municipal zoning and storm water regulations. The school district defended its decision to install the bleachers without local zoning approvals, claiming it was exempt from local zoning because of statewide preemption of municipal land use authority over schools. 

The circuit court judge ruled in favor of the City, granting its motion for summary judgment.  The court acknowledged that there was no case directly on point, although a similar issue had been raised in a case involving zoning of park districts where the court held that park districts were subject to local zoning.  Significantly, the court found no provision in the Illinois School Code that would exempt schools from complying with local zoning regulations.
This case could certainly be appealed by the school district, as it and many other school districts routinely take the position that they are exempt from local zoning regulations.  While it is true that the Illinois School Code exempts schools from local building codes, municipalities argue that there is no similar provision in the School Code exempting schools from compliance with zoning regulations.  The Illinois School Code also contains express language authorizing schools to apply for zoning relief from municipalities, further supporting a municipal argument that schools are subject to local zoning regulations. 
Post Authored by Julie Tappendorf, Ancel Glink

Photo courtesy of Northwest Herald.

Case Against Chicago Alleging Unequal Police Services to Minority Neighborhoods Moves Forward

In 2011, the Illinois ACLU and the Central Austin Neighborhood Association sued the City of Chicago, claiming violations of the Illinois Civil Rights Act, which makes it unlawful for the government to provide services in a manner that has a disparate negative effect on any racial group. Plaintiffs claim that City officials have failed to deploy police in a fair and equal manner across the City’s many diverse neighborhoods, resulting in disproportionate numbers of delayed police responses to neighborhoods with higher minority populations. Specifically, they claim that people in neighborhoods populated mostly by African-Americans and Hispanics wait longer, on average, than people in mostly white neighborhoods for police to arrive in response to 911 calls. 

Cook County Circuit Judge Neil Cohen dismissed the case last year, calling it "well-intentioned and noble" but agreeing with the City that it was not the role of the courts to tell the City how to allocate police officers.  But recently, an Illinois Appellate Court overturned the trial court, and allowed the case to proceed. Central Austin Neighborhood Ass’n v. Am. Civil Liberties Union of Ill. v. City of Chicago, 2013 IL App (1st) 123041 (Nov. 13, 2013).

The Appellate Court determined that while the City clearly has primary responsibility for deciding how to deploy police officers in response to 911 calls, it is not immune from judicial review. In resolving the issue of whether the case presented a nonjusticiable political question, the Court applied the six factors set forth in the United States Supreme Court decision in Baker v. Carr, 369 U.S. 186 (1962), finding:

First, the appellate court held that the Civil Rights Act gives courts the power to declare that any unit of local government has adopted "methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender" and authorizes courts to grant appropriate relief.

Second, the Act provides sufficient standards for courts to apply to determine whether the City’s policies for deployment of police personnel justify any disparate impact on African-Americans and Hispanics in terms of response times to 911 calls.

Third, the only policy determination at issue here concerns the disparate impact of administrative procedures on African-American and Hispanics, which courts have the competence to decide.

Fourth, a decision in favor of the plaintiffs would not indicate a lack of respect for the City’s home rule powers.

As to the final fifth and sixth factors, the court determined there was no unusual need for unquestioning adherence to the City’s preferred methods for responding to 911 calls or potential for embarrassment from pronouncements by the City and the courts on the issue.

In sum, the appellate court concluded that the judiciary has the power to order appropriate relief for any unjustified disparate impact of the City’s administrative practices on certain racial and ethnic groups. The case was remanded to the trial court for further proceedings.

Post Authored by Liz Barton, Ancel Glink

Wednesday, December 18, 2013

Court Upholds Police Officer's Termination for Facebook Venting

From Strategically Social:  A federal judge has ruled against a former police officer who sued the City of Greenville, claiming that City officials violated her free speech rights by firing her over comments posted on Facebook. Grazios v. City of Greenville.   The officer's comments criticized Police Chief Cannon's decision not to send representatives from Greenville's police department to the funeral of an officer who was killed in the line of duty earlier that month.
She posted her comments to both her personal Facebook page and the Mayor's campaign page. Her Facebook postings included the following:
"I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas–officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi."
"Dear Mayor, can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty?"

She was fired for violations of discipline and accountability, insubordination and rules of conduct, as laid out in Greenville Police Department's policy and procedure manual.
The district court judge first considered whether the officer spoke as a citizen on a matter of public concern, requiring two separate questions: (1) was the subject of her speech a matter of public concern and (2) did she speak as a citizen rather than an employee. In this case, the judge ruled that the officer's comments were "made from her perspective as a disgruntled police officer, not a concerned citizen."
According to the judge, the officer "did not speak out about any issue that related to the public safety or trust they had in the GPD but rather an internal decision of the department." As a result, the officer's comments were not afforded First Amendment protection, and her retaliation claim was dismissed.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 17, 2013

Latex Allergy Not a Disability for Pension Benefits

As municipalities grapple with PSEBA, PEBA, and a myriad of other acronyms granting their employees expensive pension benefits, a recent decision by the Illinois Department of Human Rights, upheld by the Second District Appellate Court, should provide them with at least some comfort.

In Edwards v. The Addison Fire Protection District, et al., the plaintiff filed for pension benefits before the Board of Trustees for the Addison Fire Protection District (the Board), claiming that she was entitled to a line-of-duty disability pension due to a latex allergy she claimed to have acquired through her employment. The plaintiff, a firefighter/paramedic with the Addison Fire Protection District (District), had been diagnosed with a latex allergy in 1999. As a result of this allergy, the District gave her non-latex gloves, but continued to allow the rest of its employees to use latex gloves. For a number of years, the plaintiff was able to continue working with few problems, but in July 2008, she sent a memorandum to her captain in which she reported "increasing severity" of her allergic reactions to latex gloves worn by other District employees. The employee continued working until September 11, 2008, when the District informed her that she could not continue to work until the latex situation had been resolved.

In December 2008, the plaintiff was terminated from her position, as an independent medical evaluation determined that she could not continue to work as a firefighter/paramedic due to her allergy. In January 2009, she filed an application with the Board claiming a line-of-duty disability. She claimed that her disability was the result of "repeated exposure to latex through the latex gloves that were being used by the [District’s] ambulances/engines." A number of doctors confirmed that she had a serious latex allergy, which had grown worse over time.

The Board, however, determined that despite this allergy, she was not "permanently disabled within the meaning of the Pension Code." The Board noted that although she had a sensitivity to latex exposure, this "sensitivity is not severe enough to constitute a disabling sickness" under the Code. The Board noted that in order to qualify for a line-of-duty disability pension, the employee needed to prove that she would suffer disabling symptoms for a continuous period of at least twelve months, which the Board determined had not occurred. This decision was affirmed by the both the trial court and the Second District Appellate court, finding the Board’s decision not to be against the manifest weight of the evidence.

This decision is good news for municipalities, especially those that face enormous pension challenges. As municipalities deal with enough liability from employees who sustain legitimate disabilities in the line of work, it is encouraging that a latex allergy will not be considered one of them.
Post Authored by Matt DiCianni, Ancel Glink

Monday, December 16, 2013

State's Attorney's Office is Exempt from FOIA

In Uphoff v. Grosskopf, an Illinois Appellate Court recently overturned the Illinois Attorney General's Public Access Counselor's ruling that the Livingston County State's Attorney was subject to FOIA.
In 2010, Grosskopf filed a FOIA request with the Livingston County State's Attorney requesting documents relating to a 2011 murder trial. The SA denied the request, and Grosskopf appealed to the PAC.  The PAC ruled that the SA was required to turn over the requested documents, subject to permissible redactions.  The County filed a complaint with the circuit court seeking a determination as to whether the SA's office was a "public body" under FOIA. Attorney General Lisa Madigan filed a motion to dismiss the County's complaint, arguing that because the PAC's letter was nonbinding and nonreviewable, it could not form the basis of an actual legal controversy.  In other words, the head of the PAC (Madigan) argued that her office's own ruling was not binding.  The circuit court agreed, and dismissed the County's case.
On appeal to the 4th Circuit Appellate Court, the County argued that the SA's office is not a public body because it is part of the judicial branch of state government and, therefore, exempt from FOIA. The appellate court agreed, citing a 2nd Circuit Appellate Court case Nelson v. County of Kendall.   In Nelson, the appellate court determined that a SA's office is exempt from FOIA because it is established in the judicial article of the Illinois Constitution. 
The 4th Circuit court agreed with the holding of Nelson, but relied on a relatively recent law to support its ruling.  Specifically, in 2010, the State's Attorneys Appellate Prosecutor's Act (SAAP Act) was amended to expressly state that the State's Attorney's office is a "judicial agency of state government." The 4th Circuit determined that this particular amendment was specifically enacted to provide a FOIA exemption for SA's offices. Thus, although the SA's office is not part of the judicial branch of government, it is a "judicial agency" for purposes of FOIA.
In its conclusion, the court notes that the legislature took "a rather oblique path" to exempt State's Attorneys from FOIA, and encourages the General Assembly to be clearer in future legislative enactments.
Post Authored by Julie Tappendorf, Ancel Glink

Friday, December 13, 2013

Local Governments & Medical Marijuana

On January 1, 2014, Illinois will join 18 other states and the District of Columbia in allowing the medical use and cultivation of cannabis.  We have received a number of questions from our municipal clients on this new law, including questions about local zoning control of cultivation centers and dispensaries within their community. The short answer is that municipalities can adopt local zoning controls on these land uses so long as the local regulations do not conflict with the state law or administrative rules.

The new state law will establish up to 22 cultivation centers (one for each Illinois State Police district), and up to 60 dispensaries "geographically dispersed throughout the State." The new law prohibits cultivation centers from locating within 2,500 feet of a pre-existing school, day care, or any residential district. The law also prohibits dispensaries from locating within 1,000 feet from schools or day cares. Dispensaries are also prohibited in residential units or within a residentially zoned area.

A municipality can enact local zoning regulations to identify the zoning district or districts in which cultivation centers and dispensaries are permitted. A municipality could also specify whether these uses are permitted by-right or require a special use permit in the allowable zoning districts. A municipality can also impose reasonable conditions on any special use permit to mitigate the impacts, just as it does for other special uses. A municipality might even prohibit dispensaries and cultivation centers in certain zoning districts, although a total ban on these uses in a municipality could be subject to challenge because the law states that municipalities cannot "unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act." On the other hand, a short-term ban in the nature of a temporary moratorium while a municipality reviews and considers adopting regulations on these uses would be reasonable.

In addition to these local zoning issues, local governments have also raised questions about medical marijuana use in public places. The Act prohibits medical marijuana use in schools, school buses, motor vehicles, private residences used to provide licensed child care, and public places. A "public place" does not include hospitals, nursing homes, hospice care centers, long-term care facilities, and most private residences. A local government will have to establish a rational basis for prohibitions on medical marijuana use in locations other than those locations prohibited by the Act.

Finally, we know that local government employers have a number of questions about medical marijuana use by their employees.  We will provide an update on these issues in a future blog.
Post Authored by Julie Tappendorf and Daniel Bolin, Ancel Glink

Thursday, December 12, 2013

Reminder - Local Government Law Seminar on Friday the 13th

Who wouldn't want to spend Friday the 13th (tomorrow) with a group of local government lawyers hearing all about the new and exciting legal developments that affect local governments?  Sign me up! 
We previously reported about the conference on the blog here, but what we didn't mention in that post is how this conference differs from others you may have attended in the past. 
First, we have scheduled a round-table lunch program (yes, there will be food) where our speakers will be leading discussions on two topics:  (1) Open Meetings and Ex Parte Communications and (2) the recent USSCT decision in the Koontz takings case.  Everyone will have a chance to hear both topics during the luncheon.
Second, at the end of the afternoon, attendees will enjoy a complimentary cocktail reception where you can meet and mingle with other local government lawyers. 
You can register for the conference here and learn more about the sessions, agenda, and conference faculty here
Hope to see you there!

City Cannot Pass-Through Third Party Costs Under FOIA

The PAC issued its 18th binding opinion of the year, again ruling against the public body.  In PAC Op. 13-018, a representative of the Midwest Region Foundation for Fair Contracting (MRFFC) submitted a FOIA request to a municipality seeking various records relating to a sidewalk/curb improvement project, including copies of the invitation to bid, bid tabulations, signed contract, bond and insurance records, and certified payroll reports, among other records.
The city provided copies of some of the records, but informed the requester that it would have to pay $1,136.00 for copies of records held by the city engineering consultant. That fee represented $960 for 12 hours of search and retrieval work by a project engineer at $80/hour, and $176 for 4 hours of search and retrieval work by clerical staff at $44/hour.  The requester appealed the city's fee determination to the PAC.
The PAC first looked at whether the city's private engineering consultant firm was a "public body" under FOIA, meaning that search and personnel costs would not be recoverable.  The PAC examined the city's agreement with the private engineering firm, specifically a provision that stated that "[a]ll documents produced by Francis Associates under this agreement shall become the property of the [City]."  The PAC concluded that under Section 7(2) of FOIA, all public records that are not in the possession of the public body, but are in the possession of a party that the public body contracts with are public records subject to release under FOIA. 
Based on the city's agreement with the private engineering firm and this language in FOIA, the requested records were public records under FOIA and, therefore, the city could not charge the requester for the costs of search and personnel time.  The PAC rejected the city's argument that FOIA was not intended to require public bodies to pay fees to third parties to reproduce records without being reimbursed, stating that "the expenses of compliance are justified by the importance of providing public access to the records of government."  The city was ordered to turn over the records to the requester.
Post Authored by Julie Tappendorf, Ancel Glink

Monday, December 9, 2013

A Reminder to Think Twice Before Bashing a Judge

A Chicago attorney received a harsh reminder that when you don’t have something nice to say, it is better to say nothing at all. This lawyer apparently forgot this lesson, so dutifully instilled into us by our mothers while we are young, when submitting a petition for a rehearing after his summary judgment motion was denied.
The attorney initially filed a multi-count complaint in the Circuit Court of Cook County, alleging malicious prosecution and false imprisonment. The trial court granted summary judgment in favor of the defendants, which was affirmed by the appellate court in a Rule 23 order. The respondent then filed a motion for a rehearing and to publish the opinion. In his motion, the attorney included some choice words for the court.  The court "completely" misstated "the facts by omitting facts it finds inconvenient," the attorney opined, "and issued this order knowing its recitation of the facts is a gross distortion of the record and a gross distortion of the Plaintiff's arguments." "Perhaps this Court felt it was more important to maintain a friendly relationship with their colleague down the hallway than it was to do justice in a case that did not personally involve them," the attorney lamented. In a parting shot, the attorney asserted that the court "is not serious about following the law."

As might be expected, the appellate court did not share the attorney’s views of its abilities. In a strongly-worded rebuke, the court explained that statements such as these "bring the court and the law into disrepute and tend to destroy public confidence in their integrity." Calling the language "insulting" and "disrespectful," the court reminded the attorney that unjust criticism, insulting language, and offensive conduct towards judges are not in compliance with Illinois’s Code of Professional Responsibility and cannot be permitted.

The attorney quickly recognized his mistake, and offered an apology. The attorney acknowledged that his statements lacked civility, and apologized to the court for his "intemperate, incorrect, and wrong statements." He claimed his apology was "heartfelt and sincere." Luckily for him, the court accepted his apology, and did not impose sanctions. However, let that be a reminder to us all that mother knows best: If you don’t have something nice to say, then don’t say anything at all.
Read more about ethics and the law at Ancel Glink’s website, www.ancelglink.com

Post Authored by Matt DiCianni, Ancel Glink

Friday, December 6, 2013

School's Termination of Counselor for Racy Book Upheld by Seventh Circuit

Most private employees that are "at-will" employees who engage in controversial activities outside of work are subject to rational or irrational discharge at the employer’s complete discretion.  Employees of public bodies that are not subject to union contacts are also considered at-will employees but they are entitled to a number of special protections arising out of the First Amendment. While First Amendment rights are very strong, courts are often willing to uphold the practical personnel decisions of governmental bodies even where the fired or disciplined employee’s arguments may have a "first blush" appeal. In the case of Craig v. Rich Township H.S.D. 227, et al., decided December 3, 2013, by the United States Court of Appeals for the Seventh Circuit, the blushes just go on and on. 

In that case, a high school counselor self-published a short book of adult relationship advice entitled:  It’s Her Fault. Craig brought a Section 1983 claim in federal court alleging that the School District, the School Board and several Board members improperly fired him in retaliation for his speech that he claimed was protected by the First Amendment. The district court judge dismissed the case, finding that the plaintiff's book did not address a matter of public concern and was not entitled to First Amendment protection. 

On appeal, the Seventh Circuit Court of Appeals disagreed with the district court's finding that Craig's book did not address a matter of public concern. Nevertheless, the court held that the School had the right to terminate Craig because the School's interest outweighed Craig's First Amendment rights.

The First Amendment protects the speech of employees of governmental bodies who make statements, even if controversial, that relate to matters of public interest rather than simply claiming First Amendment rights for publicly-raising their own private personnel concerns.  The unanimous three-judge panel wrote that: "While full of objectionable content, Craig’s book deals with adult relationship dynamics, an issue with which a large segment of the public is concerned."  If that was the only consideration, then Craig could not be fired for expressing his views on an issue which had a broader context than matters learned and pertaining to his employment. 

The decision of the Seventh Circuit is beneficial to governmental bodies because it is practical in evaluating ways in which the outside activities of officers or employees of governments can dramatically harm their effectiveness to do their jobs.  The court writes: 
The School District reasonably predicted that "It’s Her Fault" would disrupt the learning environment at Craig’s school because some students, both female and male, who learned of the books hyper-sexualized content would be reluctant to seek out Craig’s advice.  Craig has effectively pled himself out of court by asserting allegations and incorporating documents sufficient to establish that the School District’s interest in restricting his speech outweighed his interest in publishing his book.  
In the opinion, the Court discusses many racy parts of Craig’s book.  Throughout the book, Craig references his employment at the School.  He served as a tenured guidance counselor and a coach for women’s varsity, junior varsity and freshman basketball teams.  Craig mentions his employment and the things that he learned in counseling students.  The Board of Education held a hearing on charges brought against Craig and ordered him to be discharged.  One of the charges was that the violated the School Board’s policy "prohibiting conduct that creates an intimidating hostile or offensive educational environment."  It was also charged that "he failed to present himself as a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher. 

In its opinion, the Seventh Circuit continues its earlier view that public employees must be allowed to participate in public dialogue on matters on interest to the public.  The court writes:  "But the speech need not address a topic of great societal importance, or even pique the interest of a large segment of the public, in order to be safeguarded by the First Amendment."  Based on these arguments, governmental bodies need to be careful in making personal decisions that relate to an employee or officer’s legitimate expressions of First Amendment constitutional rights.  The court does, however, distinguish a case in which a police officer created a sexually-explicit video as one not relating to a matter of public concern.

Although this opinion does not mention a well known line of cases, there are many instances in which employees attempted to convert their own personal employment problems into matters characterized as problems with the general employment practices of the public employer.  Courts have generally had little problem in determining that such efforts were not an exercise of First Amendment rights, but simply efforts to go public with individual employment concerns and to avoid using established personnel procedures. 

Even though Craig’s speech was entitled to constitutional protections, his actions failed the second required test to proceed with his lawsuit.  It is true that Craig did not come to a school board meeting and express his views.  He did so in a private way and outside of the work environment.  In evaluating this part of the case, the Seventh Circuit writes that "an employer must provide a justification ‘far stronger than mere speculation, in order to restrict employees speech’ that ‘has nothing to do with their jobs.’"  In this case, however, Craig took deliberate steps to link his book with his work as a high school guidance counselor.  When the court balanced Craig’s interest with First Amendments speech with the School Board’s interest in having an effective guidance counselor in place, he could not meet the required burden.  After evaluating the public nature of the book and its content, the Seventh Circuit concluded that "indeed some students may forego receiving the School’s counseling services entirely rather than take the risk that Craig would not view them as person but instead as an object."  The School District "had an interest in terminating Craig’s employment in order to ensure effective delivery of counseling services to female students at Rich Central."  In part, the decision appears to be based on Craig’s position as a teacher and a counselor.  "Craig must maintain a safe place for his students in order to ensure they remain willing to come to him for advice."  The decision might have been different if Craig were the janitor or the School Board in-house attorney.  Maybe not the attorney.  

Finally the case is interesting in that the decisions of the district court and of the Seventh Circuit were based on a motion to dismiss.  This type of motion allows the courts only to consider the pleadings.  No discovery had taken place in this case, and there certainly was no trial with witnesses.  In this case the courts felt that neither discovery nor a trial would change the ultimate result.  The Seventh Circuit concludes its opinion by stating "While most First Amendment retaliation claims will not be amendable to resolution in the pleadings, Craig’s complaint and supporting documents place this case in the category of the exception rather than the rule."  The legal and practical issues discussed in this opinion should be read and understand by all parties attempting to dismiss a public employee for actions taken outside of working hours where  a claim of First Amendment protections will be made. 
Post Authored by Stewart Diamond, Ancel Glink 

Wednesday, December 4, 2013

Parking Tickets on Windshield a Permissible Use under DPPA

We reported on the blog previously about the Senne v. Palatine case where the Seventh Circuit Court of Appeals ruled that Palatine’s practice of placing parking tickets on a car’s windshield was a “disclosure” under the Driver’s Privacy Protection Act (DPPA). 
The Seventh Circuit had subsequently remanded the case back to the district court to make a determination as to whether that “disclosure” fell within the permissible use exemption under the DPPA.  On remand, the Village filed a motion for summary judgment, arguing that (1) the Village's use of the personal information fell within the permissible use exemption of DPPA because the police department used the personal information in a variety of ways, including confirming the identity of the correct party and (2) that the Village did not “disclose” anything because the tickets were placed face down on the windshield.   
Last week, the district court granted the Village's motion for summary judgment in the case.  Senne v. Palatine, 2013 WL 6197092, Not Reported in F.Supp. (N.D. Ill., November 27, 2013).  Although the district court rejected the Village’s argument that it didn’t disclose anything because the ticket was face down, it held that the Village’s practice was a “permissible use” under the DPPA because the PD uses the personal driver information in a variety of ways, including to confirm that the ticket was issued to the correct person.
The plaintiff in the case, Jason Senne, has already filed an appeal with the Seventh Circuit, so municipalities should monitor this case to see what happens on appeal.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 3, 2013

Illinois Pension Bill Debated Today

Update 12/3/13 at 5:00 p.m. - both Houses of the General Assembly passed the pension reform bill.

Today, the Illinois General Assembly is debating a bill designed to "fix" the state's pension crisis. The Illinois Municipal League has prepared an outline of the pension reform bill on its website here.  The highlights include 100% funding by 2044, a revamp of the COLA increases, an increase in retirement age, an increase in state contributions, and a reduction in employee contributions, among other provisions. 
The IML has been reporting on the debates on Twitter at @IML_Legislative.  You can access the IML's Twitter feed here if you want to feel like you are sitting in on the debates.  One of the IML tweets included the following picture of the proposed legislation:
Not surprisingly, the bill is opposed by the various union groups, who have been testifying that the bill is unconstitutional and amounts to theft from public employees.
The bill only addresses state pensions.  If this bill passes, and then survives a legal challenge (which is probable), then the legislature is likely to address local government pensions in the future.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, December 2, 2013

Cyber Monday Question: Is the Illinois "Amazon Tax" Really Dead?

On this Cyber Monday, we report on a case related to internet sales tax.  In our October 22, 2013 blog post, we reported on the case Performance Marketing Assoc., Inc. v. Hamer, in which the Illinois Supreme Court struck down the state law which attempted to require on-line retailers who worked with in-state affiliates to collect and remit sales taxes to Illinois. This result conflicts with a similar case from the State of New York, Overstock.com, Inc. v. New York Department of Taxation and Finance, et al., where the state court upheld such a taxing scheme.
On December 2, 2013, the United States Supreme Court decided to reject the appeals of Amazon and Overstock.com of the New York court’s decision. Does this mean the Illinois case was wrongfully decided? It is not clear. Because the New York appeal was rejected without comment it is difficult to predict whether the Court refused to hear the case because it found the result to be correct or because the issue is not ripe for a decision. Frequently, the Supreme Court will defer cases until a conflict between appellate courts arises so that it can clarify a contested issue of law.
Despite this uncertainty, there are two takeaways from this case that are relevant to Illinois. The New York version of the Amazon Tax provides a model for the State of Illinois to follow if it wishes to re-enact such a law. Furthermore, since the Marketplace Fairness Act has been held in the U.S. House of Representatives without a schedule for consideration, the Supreme Court’s non-decision gives renewed hope to Illinois municipalities that additional revenue may become available from on-line purchases.
Post Authored by Adam Simon, Ancel Glink

PAC Finds No "Discovery Exemption" under FOIA

The PAC issued its 17th opinion for 2013 recently, ruling against the public body in PAC Op. 13-017
The City of Berwyn denied a FOIA request for a police report, citing 7(1)(d) of FOIA that exempts law enforcement records.  The City argued that release would interfere with ongoing law enforcement proceedings and deprive a person of a fair trial.  The requester appealed to the PAC, and the City filed a response with additional support for its denial, including that the document should have been requested through discovery by the requester's attorney.  Although not clear in the PAC opinion, it appears that the requester was the subject of the requested police record.
The PAC concluded that the City did not meet its burden of showing by clear and convincing evidence that FOIA prohibited disclosure because the City failed to provide enough detail about the ongoing investigation and how the disclosure of the records would deprive a person of a fair trial. 
The PAC also rejected the City's argument that the requester should obtain the records through discovery, citing two cases from the Court of Appeals for the Fifth Circuit and Federal Circuit as support.  The PAC stated that just because records might not be available through discovery does not mean that they should not be accessible through FOIA.  FOIA contains no discovery or litigation exemption that would protect these records from release. 
In Illinois, it has been an open question whether a party to a lawsuit should be allowed to circumvent the court-approved discovery process just because the opposing party happens to be a public body.  There is certainly an argument that this would grant an unfair advantage to the non-public body party over the public body, since the timeframe for response under FOIA is shorter and there is no restriction on relevancy of documents requested.  There is no Illinois case on point on this issue, as evidenced by the PAC's use of cases from other circuits to support its opinion. 
Although this ruling is binding only on the parties to this opinion, it does provide some guidance to public bodies on the PAC's position on the use of FOIA rather than discovery to obtain documents.
Post Authored by Julie Tappendorf, Ancel Glink