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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

Thursday, December 29, 2016

Illinois Court Rejects Religion-Based Challenge to Community College’s Vaccination Policy

Nicholas George sued Kankakee Community College (KCC) and Presence Hospitals PRV (Presence) alleging violations of his constitutional rights to religious freedom, equal protection, and due process, among others after George (a student enrolled in KCC’s paramedic program) was prohibited from participating in the mandatory clinical portion of a paramedic course operated by Presence because he refused vaccinations against influenza, hepatitis B, measles, mumps, and rubella (MMR). The vaccinations were required by the Presence-operated hospital policy.  Although George had informed the hospital that he was objecting to the vaccinations on religious grounds, he was placed on academic warning and his request for an exemption to the vaccination policy was denied. After George’s complaint was initially dismissed, he appealed to an Illinois appellate court.

With respect to George’s claim that his religious freedom rights were violated, the court found that Presence’s policy did not discriminate against religion since it required all persons interacting with patients receive the MMR vaccination. Although the Illinois constitution protects religious opinions, state actors are permitted to impose regulations that could restrict religious freedom if those restrictions promote the safety interests of the state, as was the case here.

George also alleged that his equal protection rights were violated because other individuals were allowed to work or take classes in the hospital without receiving vaccinations. The court found George’s complaint insufficient since he did not allege that other students in his paramedic course were allowed to participate in clinical rotations without receiving the proper vaccinations.  Even if George could show he was treated differently than other students enrolled in a hospital course, students seeking entry into clinical rotations are not members of a protected class and therefore the court would apply the rational basis test.

George also claims that his procedural due process rights were violated because Defendants failed to give him with notice and a hearing before disqualifying him from the paramedic course. The court also rejected this claim based on its earlier determination that his free exercise rights were not violated.

In short, the appellate court affirmed the trial court’s dismissal of George’s complaint. George v. Kankakee Community College.

Post Authored by Katie O'Grady, Ancel Glink

Wednesday, December 28, 2016

Court Interprets Tort Immunity Act in Connection with Bike Death at Forest Preserve

The estate of Molly Anne Glynn sued the Forest Preserve District of Cook County following Glynn’s death after she was stuck by a tree limb while riding her bicycle on one of the District’s paved bicycle paths. The District claimed it was immune from liability under the Local Government and Governmental Employees Tort Immunity Act. Section 3-107(b) provides immunity for an injury caused by a condition of “[a]ny hiking, riding, fishing or hunting trail,” while section 3-106 provides immunity from ordinary negligence “where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities.”

Plaintiff responded that although the bicycle path itself was recreational property, the tree that struck Glynn was about 7 feet from the bike path in an area of Erickson Woods that was not permitted to be used for recreational purposes, so the District could not rely on the Tort Immunity Act.

The trial court had certified two questions to the Illinois appellate court which were addressed in Foust v. Forest Preserve District ofCook County.

The first question was: 
(1) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of property intended or permitted to be used for recreational purposes pursuant to Section 3-106 of the Tort Immunity Act?
The appellate court first analyzed whether Erickson Woods was permitted or intended for recreational purposes as a whole or whether the intended use of the specific location of the tree was relevant. The court relied on the District’s brochure, which stated that Erickson Woods was suitable for “picnicking, hiking, cycling, inline skating, cross-country skiing, and fishing”, among other activities, to find that the property as a whole was intended or permitted to be used for recreational purposes. As a result, 3-106 immunity applied.

The second question certified by the trial court was: 
(2) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of a trail pursuant to Section 3-107(b) of the Tort Immunity Act? 
With respect to immunity under section 3-107(b), the court determined that the District was not immune because the tree limb was not a condition of the riding trail since it was hanging about the trail and did not fall until it hit the rider. The court stated that had the facts been different (i.e. had the tree limb fallen to the ground and the rider collided with it), it could have been a condition of the path under those facts.  But, since the tree limb was not a part of the trail under these circumstances, the District was not covered by 3-107(b) immunity.

Post Authored by Katie O'Grady, Ancel Glink

Tuesday, December 27, 2016

City Ordinance May Have Established Employment Contract

In 2007, Anthony Boswell was hired as the Executive Director of the City of Chicago’s Office of Compliance.  Prior to this period, the City of Chicago had been involved in a series of lawsuits later known as the Shakman litigation, which resulted in the City's agreement to eliminate political consideration from employment. The federal courts eventually adopted the City’s hiring plan which included Boswell, as the head of the Office of Compliance.  Boswell was appointed for a fixed term to be the head of the Office of Compliance and could not be removed except for cause.

Boswell resigned in 2010 and two years later sued the City of Chicago for breach of contract and promissory estoppel.  Boswell argued his work was met with “resistance and hostility” and he was often subject to “a campaign of petty and overt harassment.”  

The trial court dismissed the case, but the appellate court reversed, finding that Boswell's argument that the City's ordinance created a contract for the executive director position was sufficient to move forward.  In the court's view, the ordinance specified the intent to create a contract with the executive director and the intent of by the city council to set the executive director apart from every other city employee. The court also held that the executive director of an independent compliance office is not a typical "at-will" employee and should be able to rely on some contractual rights in order to exercise independence, discretion, and latitude necessary for this type of position. So, the court reversed the dismissal of Boswell's claims, and the case moves to the next stage where Boswell will have to show that the City's ordinance actually created a contract. 

The court also addressed Boswell’s promissory estoppel claim. It acknowledged that estoppel against public bodies is generally disfavored and allowed in only in rare circumstances, when necessary to prevent fraud and injustice. Here, however, Boswell's claims that the City promised that his office would be independent from political pressures and that he would be in control over his office were sufficient to move his estoppel claim forward. Boswell v. City of Chicago, 2016 IL App (1st)150871.

Post Authored by Megan Mack, Ancel Glink

Wednesday, December 21, 2016

FOIA Lawsuit Not Properly Brought Against Individuals

Linda Korner filed a FOIA request with the Illinois Department of Financial and Professional Regulation in 2013, asking for copies of an "investigative file" regarding complaints she had filed with the Dept. against veterinarians who treated her dog. The Department denied her request. Two months later, a new law was passed making complaints and investigatory materials confidential. 

Korner filed suit shortly thereafter, naming the Attorney General, the Department Secretary, and the Public Access Counselor as defendants. Her complaint asked the court to declare that the defendants violated Korner's rights under FOIA by withholding the documents she requested. She argued that since the confidentiality law did not come into effect until August of 2013, two months after the Department denied her FOIA request, the Department was obligated to provide her with her requested documents.

The defendants filed a motion to dismiss, arguing that her FOIA lawsuit was not properly filed because it only named individuals as defendants. The court agreed, and dismissed her suit because she failed to name any public body as a defendant. Korner v. Madigan, 2016 IL App (1st) 153366 

Post Authored by Julie Tappendorf

Wife's Auto-Forwarding of Husband's Emails May Violate Wiretapping and Electronic Surveillance Act

The federal Wiretapping and Electronic Surveillance Act makes it unlawful for anyone to intercept any wire, oral, or electronic communication. The 7th Circuit Court of Appeals recently interpreted this Act to prohibit a wife's "interception" of her husband's emails that were then used in the couple's divorce proceeding. Epstein v. Epstein (7th Cir. 12/14/16)

According to the court decision, the wife had placed an auto-forwarding "rule" on her husband's emails that would automatically forward all of his email messages to her email account. Her husband learned of the interception when her attorney disclosed certain of the emails in discovery in the divorce proceeding. He filed a lawsuit against her and her attorney, alleging violations of the Wiretapping and Electronic Surveillance Act. 

The 7th Circuit dismissed the husband's claims against his wife's lawyer. However, the court allowed his claims against his wife to proceed to trial, finding that he stated a valid claim that her placement of the auto-forwarding rule could be considered an "interception" under the Act. The case was remanded for the district court to determine whether the email forwarding meets the Act's requirement that an interception be "contemporaneous." 

Post Authored by Julie Tappendorf

Tuesday, December 20, 2016

Liquor Store Owner's Claims of Government Harassment Can Move Forward to Trial

The 7th Circuit Court of Appeals recently heard an appeal in a case filed against a municipality and its mayor by a liquor store owner who claimed that he suffered from a "campaign of harassment and outright violence." Brunson v. Murray, (7th Cir. 12/13/16). The case is lengthy and includes a number of constitutional challenges, but in summary, the court allowed the store owner's equal protection and due process claims to proceed to trial.

Brunson owned the only package liquor store in Bridgeport, Illinois. According to the court's opinion, the mayor had also bid on the purchase of the liquor store, but was outbid by Brunson. The mayor also had an interest in other liquor establishments in town that competed with Brunson's liquor store. Brunson filed an application to renew his liquor license. The mayor, as the local liquor commissioner, has the statutory authority to approve renewals, but instead of approving or denying Brunson's application, he simply held on to the application and Brunson was forced to close his business. 

Brunson then contacted the state liquor commission, which issued a written order that the mayor had no authority to sit on the renewal application indefinitely, and that Brunson was allowed to operate the store pending a hearing before the mayor. Shortly before the hearing, the mayor renewed the license and backdated it.

According to the court's decision, Brunson was then subjected to a variety of harassment from the mayor and his employees, including break-ins and an assault at his store that ultimately ended in Brunson being arrested. 

Brunson then filed suit against the mayor, police chief, state's attorney, the city, and others alleging claims of (1) false arrest; (2) equal protection and (3) due process violations, as well as state law claims. The district court rejected all of Brunson's claims, and he appealed to the 7th Circuit.

The 7th Circuit agreed with the district court on its dismissal of the false arrest claim. However, the court reversed the dismissal of Brunsons' equal protection and due process claims. 

On Brunson's equal protection claim, the court held that Brunson had provided sufficient evidence of a pattern of discriminatory behavior on the part of the city, had shown hostile intent and animus, and that there had been no rational basis for refusing to renew the liquor license. The court acknowledged that "class of one" equal protection claims must be handled carefully to avoid "turning every squabble over municipal services...into a federal constitutional case." Nevertheless, in this case, the harassment against Brunson was sufficient to move the claim forward to trial.

On Brunson's due process claim, the court refused to extend absolute immunity to the mayor in his actions in failing to renew Brunson's liquor license application. The court distinguished between revocation/suspension of a liquor license (in which the mayor has broad discretion and, therefore, absolute immunity) from the "pro forma" renewal process (in which the mayor has little to no discretion). In this case, Brunson's due process claims against the mayor could proceed to trial, although the court did dismiss the due process claims against the city itself.

The case is long, but it does provide a lot of guidance to local governments on how the federal courts will address equal protection and due process claims against municipalities and municipal officials. 

Post Authored by Julie Tappendorf

Monday, December 19, 2016

PAC Finds FOIA Violation Where Public Body Doesn't Respond

In its 11th binding opinion of the year, the Public Access Counselor (PAC) office of the Attorney General found a public body in violation of FOIA for failing to "appropriately respond" to a FOIA request.  PAC Op. 16-011.

In July, Glotz submitted a FOIA request to the Housing Authority of Cook County asking for communications between a housing developer (Buckeye) and its representatives, copies of applications submitted by Buckeye, and any "negative remarks" or tenant complaints about Buckeye projects. In August, the Authority contacted the requester to let him know that the Authority had not located any responsive records and asking for clarification about his request. The requester clarified his request, but the Authority failed to respond, and in September, Glotz filed a complaint with the PAC. The Authority did not file a response to the complaint.

The PAC found the Authority in violation of FOIA by not responding to the initial FOIA request within 5 business days. Although the Authority did work out a clarification of the request with the requester, the PAC found the Authority in violation for failing to respond to the clarified request either. 

Unfortunately, as with almost all of the PAC's binding opinions, there is no new guidance for public bodies in this binding opinion as it simply reminds public bodies that they must comply with FOIA within the statutory time-frame.

Post Authored by Julie Tappendorf

Friday, December 16, 2016

New Sick Leave Legislation May Require Policy Revisions

Paid sick leave is one of the hottest employee benefits this year, with a number of municipalities, including Chicago, some counties, including Cook County, and a handful of states enacting laws requiring employers of a certain size to provide paid sick leave days to their workers. Now the state of Illinois is joining in on the subject by mandating permissible uses of paid sick leave benefits.

Effective January 1, 2017 the Illinois Employee Sick Leave Act (P.A. 099-0841) will require employers to allow employees to use their sick leave benefits for not only their own personal medical needs, but also for the illness, injury or medical appointments of a broad spectrum of family   members. While the Act does not itself require employers to provide paid sick leave, it does require employers who do provide that benefit to allow employees to use that leave time for absences resulting from the illness, injury or medical appointments of the employee's child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent.

The Act also provides that the benefit use for family members must be reasonable and "on the same terms upon which the employee is able to use sick leave for the employee's own illness or injury." In other words, an employer cannot impose greater restrictions on the use of sick leave for family members than it imposes for an employee's personal medical conditions. Therefore, if an policy currently allows sick leave use in half day increments for the employee's illness, injury or medical appointment, then it should impose that same requirement if the sick leave use is for an eligible family member.

Although employers now must extend the permissible use of sick leave benefits to family members, they can limit the number of days used for this purpose to half of that which the employee accrues in a year (not half of which has been accrued in that year). In other words, if an employee accrues 12 days of sick leave each year, he or she may use six of those 12 days for eligible family member use, even if, for instance, the employee only has six days of sick leave in their bank at the time.

Additionally, the Act specifically states that it does not extend the amount of sick leave benefits granted, nor does it extend the maximum leave allowable under FMLA.

Many local governments have maintained sick leave policies that restrict the use of sick leave to the employee only or to family members which do not include all relatives identified in the legislation. Those policies will need to be revised prior to January 1st. 

Post originally authored by Margaret Kostopulos, Ancel Glink

Thursday, December 15, 2016

Facebook Posts Used As Evidence at Trial

In another installment of "be careful what you post," a federal appeals court convicted a Chicago man for illegal gunrunning based, in part, on evidence the man posted on Facebook. U.S. v. Lewisbey (7th Cir., 12/9/16).

Lewisbey was a Chicago-based gunrunner who used a fake Indiana ID to buy guns at Indiana gun shows and bring them back to Illinois to sell.  After discovering Lewisbey's Facebook posts bragging about his gunrunning exploits, federal agents set up a sting and arrested and charged him with unlawfully transporting and dealing firearms. He was convicted by a jury.

Lewisbey appealed to the 7th Circuit Court of Appeals arguing, among other things, that his Facebook posts and text messages should not have been admitted at trial.  He claims they should have been excluded as hearsay and because they were not properly authenticated.

The 7th Circuit rejected Lewisbey's arguments. First, and most importantly, Lewisbey admitted at trial that the admitted Facebook posts were made by him. In addition, his Facebook page listed his nickname, date of birth, and his place of residence. The email address associated with his Facebook page was linked to Lewsibey's iPhone. The Facebook page included 100s of photos of Lewisbey. Finally, messages on his Facebook page specifically discussed Lewisbey's trips to gun shows in Indiana on dates where gun shows actually occurred. In short, the court found adequate evidence to support the trial court's admission of the Facebook evidence at trial. 

Post Authored by Julie Tappendorf

Wednesday, December 14, 2016

Illinois Appellate Court Clears Ambiguity after Review of a Board of Election Decision

In a recent case, an Illinois appellate court found that a candidate who signed nominating petitions for Democratic candidates (including herself) and a Republican candidate could still appear on the ballot.  Schmidt v. The Illinois State Board of Elections et al.  

Julie Schmidt filed an objection with the Illinois State Board of Elections claiming that Anna Moeller, a Democratic candidate for the office of Illinois Representative for the 43rd Representative District, should be barred from running in the March 15, 2016 primary election ballot. Schmidt argued that Moeller’s nominating papers were invalid because, during the same election cycle, Moeller signed her own statement of candidacy as a Democratic Party candidate, as well as the nominating petition of a Republican Party candidate running for the office of Kane County Recorder. 

Schmidt objector’s petition relied on section 8-8 of the Election Code (10 ILCS5/8-8 (West 2014)), which provides that “[a] ‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary of more than one party.”  Moeller responded that she was not ineligible to run for office under Watkins v. Burke, which states that “when a person signs for more than one political party at the same election, the first signature in time is valid and all subsequent signatures for a different political party are invalid.”

The court acknowledged that Moeller signed petition sheets in support of her own nomination on September 5, 2015 and then signed the Republican candidate’s nomination papers on September 26, 2015.  Moeller then filed her own nomination papers with the Board on November 23, 2015.  Moeller conceded that her signature on the Republican petition was invalid, since she affiliated herself with the Democratic Party prior to signing the Republican candidate’s nominating petition.  However, she argued that her own nominating paper were valid since the papers were signed first in time.

The court found that although Moeller violated section 8-8 of the Election Code by signing petitions or being a candidate in the primary of more than one party, there was no specific penalty in the Election Code for a violation.  The court then applied Watkins and upheld her candidacy since her signature on her own nomination papers preceded her later signatures on the petition for a Republican candidate. 

Post Authored by Katie O'Grady, Ancel Glink

Tuesday, December 13, 2016

Court Interprets "Sore Loser" Candidacy Rule

We are likely to see a lot of election cases over the next few months, as the local election season is under way. In today's case, the appellate court takes a look at the "sore loser" law in the Election Code. That law states that a candidate who files nomination papers as a partisan candidate in the primary election and is defeated cannot then file to be a write-in candidate in the general election for that same position. The question in this case was whether the "sore loser" law applies to just any office or the same office for which the candidate filed at the primary. In Ahmad v. Board of Election Commissioners of Chicago, 2016 IL App (1st) 162811, the court held that the law applies only to the same position (or in that case, vacancy).

Maryam Ahmad ran as a Democratic candidate for election to fill the judicial vacancy of Judge Brim. She was defeated at the primary election. She subsequently filed as a write-in candidate for the judicial vacancy of Judge Hopkins for the general election. The Chicago Board of Elections rejected Judge Ahmad's write-in declaration, finding that she was disqualified under the "sore loser" law because she had been defeated at the primary election. She appealed, and the court issued an expedited ruling to allow her to be listed as a write-in candidate.

The case returned to the appellate court when another candidate for the same vacancy appealed this determination. The appellate court again ruled in favor of Ahmad, finding that her second candidacy did not give Ahmad a "second bite at the apple" because her first loss was not for the same race as her second candidacy.  In short, the court stated that multiple vacancies in a judicial subcircuit are different positions, and the sore loser rule did not apply in these circumstances. 

Post authored by Julie Tappendorf

Monday, December 12, 2016

Tribune Sues Chicago Police Department for Failure to Respond to FOIA Request After McDonald Shooting

Our loyal followers will recall that this past August, we reported on PAC Opinion 16-006, a binding opinion that found the Chicago Police Department in violation of FOIA when it failed to provide the requester, CNN, with copies of emails sent/received by Chicago police officers on their private accounts and devices that related to the Laquan McDonald shooting. Now, the Chicago Tribune has filed a lawsuit making similar allegations against the CPD that it violated FOIA by failing to produce requested emails relating to the Laquan McDonald shooting.

Specifically, the complaint alleges that the Tribune submitted a FOIA request for emails related to the shooting on December 17, 2015.  The Tribune then received responses from the CPD that the request was unduly burdensome.  The Tribune alleges that on March 22, 2016, the CPD promised to produce 375 emails, but failed to do so.  The Complaint further alleges that the denial amounts to retaliatory motivation against the Tribune reporter who submitted the request as she had previously been involved in a separate lawsuit by the Tribune against CPD. 

The case has been set for an initial case management conference on April 4, 2017.  We will continue monitoring this case and keeping you updated.

Post Authored by Erin Baker, Ancel Glink

Thursday, December 8, 2016

Illinois Appellate Court Upholds Denial of PSEBA Benefits

In a recent Illinois case, a court affirmed a Village's denial of PSEBA benefits, finding that the firefighter applicant failed to show that he was responding to what was reasonably believed to be an emergency.  Wilczak v. The Village of Lombard, 2016 IL App (2d) 160205 (December 5, 2016).

A firefighter for the Village of Lombard injured his shoulder while lifting a disabled patient.  Following treatment, he had a number of complications and was unable to continue working. He was granted line-of-duty disability benefits the Illinois Pension Code. He then applied for health insurance benefits under PSEBA, but the Village denied his request. The firefighter filed a complaint for declaratory judgment that he was entitled to PSEBA benefits. He argued that he was entitled to PSEBA benefits because his injury occurred during what he reasonably believed to be an emergency.  The trial court granted the Village’s motion for summary judgment, and the firefighter appealed. 

On appeal to the Illinois Appellate Court, the Village acknowledged that the firefighter suffered a “catastrophic injury” under PSEBA.  The main issue then before the appellate court was whether the injury was sustained in response to what the firefighter reasonably believed to be an emergency.  The Illinois Supreme Court held in Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, that an emergency under PSEBA is an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.  

In applying that definition to these facts, the Illinois court found that it was not reasonable for the firefighter to believe that he was responding to an emergency and affirmed the denial of PSEBA benefits.  The court noted that the record showed that the injury occurred while dispatched for an invalid assist, which the firefighter should have known did not involve an emergency from the beginning of the call. While the court acknowledged that the firefighter may have subjectively believed there was an emergency initially, once he arrived at the scene, he could have confirmed that it was not an emergency as the patient was not injured and did not require medical attention.  The court pointed out that there was no immediate danger to the patient or the firefighter and that no unforeseen circumstances arose.  

Post Authored by Erin Baker, Ancel Glink

Wednesday, December 7, 2016

Chicago Prevails in Food Truck Lawsuit, Validates Different Treatment for Brick-and-Mortar Restaurants

This week, the City of Chicago prevailed in a lawsuit challenging its food truck regulations, confirming that municipalities may regulate food trucks differently than traditional restaurants. LMP Services v. City of Chicago.  

In 2012, Chicago City Council passed a food truck ordinance, including requirements that food trucks must have a GPS system installed in their trucks for city monitoring, and that food trucks must stay more than 200 feet away from retail food establishment. Shortly, after the ordinance was enacted, the owner of the “Cupcakes for Courage” food truck, filed a lawsuit arguing that the 200-foot rule and the GPS requirement violate the due process and search and seizure provisions of the Illinois Constitution. The Court said the lawsuit “pits the interests of the traditional brick-and-mortar restaurant against the young rising pop star-the food truck.”

The food truck business claimed that the 200-foot rule violates its due process rights, specifically the right to pursue a trade or business free from arbitrary and irrational regulation. However, the Court found at least two rational bases for the City’s 200-foot rule: balancing the interests of both restaurants and food trucks, and managing sidewalk congestion. The Court distinguished a 1960 Illinois Supreme Court case, which struck down a 650-foot proximity limit between gas stations, finding that food trucks and restaurants are different types of businesses. Additionally, the Court found that the 200-foot rule is rationally related to the City's goal to reduce sidewalk congestion, although the rule does not solve all sources of pedestrian congestion.

Cupcakes for Courage also claimed that that the GPS requirement was an unlawful search and seizure, but the Court concluded that the requirement was not a search because it was not surreptitious, and only applied when the food truck is open for business or being serviced at a commissary. Even if the GPS requirement were a search, it would be reasonable because it satisfied the standards for warrantless searches of closely regulated businesses, such as food service. Finally, the Court found that the business, operating in public, did not have a reasonable expectation of privacy.

While the Cupcakes for Courage crew plans to appeal, this decision offers guidance to Illinois municipalities, and supports different sets of rules for mobile food vendors and traditional restaurants.

Authored by Daniel J. Bolin and Amanda Riggs, Ancel Glink

Wednesday, November 30, 2016

2017 is Coming...And So Are New Laws

As we get closer to the end of 2016, it is important for public bodies to understand and ready themselves for all of the new laws that will take effect at the beginning of 2017 that affect local governments.  The IML published an article in the December edition of the Illinois Municipal Review that includes a comprehensive list of these new laws.  We have summarized just a few of these laws below, but encourage our readers to take a look at the IML's article for other laws of interest.

P.A. 99-586  - FOIA Non-Compliance Penalty. This new law allows a requester to file a law suit to enforce a binding PAC opinion and there is a rebuttable presumption that the public body willfully and intentionally failed to comply if the public body didn't appeal the PAC's opinion. The new law also provides for penalties of up to $1,000 per day for willful and intentional failures to comply with FOIA.

P.A. 99-610 - Employee Social Media Account Privacy. This new law makes it unlawful for an employer or prospective employer to request or require an employee or candidate to access his or her personal social media accounts or to request or require an employee or applicant to "friend" the employer or join the employer's page.

P.A. 99-754 - County Adjudication Hearings for Local Governments. This new law allows the collar counties to establish an administrative adjudication system for violations of local ordinances with participating local governments. 

P.A. 99-604 - Travel Expense Reimbursement Act.  We've written extensively about this new law, which will require public bodies to adopt a local travel expense policy and approve certain expenses prior to reimbursement of employees and officers (all expenses of the corporate authorities and any expenses of other officers and employees that exceed the travel policy maximum reimbursement amount).

P.A. 99-835 - Expungement of Law Enforcement and Juvenile Court Records. This new law provides that a person can petition the court to expunge his or her juvenile court records if the offense committed as a juvenile would have been a criminal offense if committed by an adult.

P.A. 99-860 - Illinois Freedom to Work Act. This new law prohibits employers from entering into covenants not to compete with any low-wage employee. 

Tuesday, November 29, 2016

Court Interprets "Public Recital" Requirement of OMA Prior to Final Action

We don't get a lot of guidance from Illinois courts on compliance with the Open Meetings Act (OMA) (most of our guidance has come from the Public Access Counselor) but today's case is an exception.  Allen v. Clark County Park District Bd of Commissioners, 2016 IL App (4th) 150963. This case is an important one for all public bodies to understand, as it interprets the OMA's "public recital" requirement prior to taking final action on agenda items.

Here, two individuals alleged that the Clark County Park Board violated the OMA by failing to provide a sufficient explanation prior to voting on two items on the agenda (approval of a lease and approval of revised covenants). According to the court, when the Board considered each of the challenged agenda items, a motion was made, seconded, and then a vote taken. No discussion took place on either item, and the documents were not made available to the public prior to the meeting. Moreover, when a member of the public asked the Board to describe what they had just voted on, the chair of the meeting responded "They gotta get recorded at the courthouse first. I'm sorry." Another commissioner stated "it's just a formality." 

The following day, the individuals filed a law suit against the Clark County Park District. The complaint included three claims: (1)  the agenda was insufficient to set forth the subject matter of the two items; (2) the Board improperly considered the two items in closed session; and (3) the Board failed to explain the nature of the two items before voting on them.

The trial court dismissed the case in its entirety.  Plaintiffs then appealed the trial court's dismissal of the third allegation - that the Board failed to explain what was being considered prior to taking final action. 

The appellate court first looked at the language in section 2.02(e) of the OMA which requires a public body to make a "public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted" prior to taking final action (voting) on an agenda item. The court acknowledged that there was little guidance on "precisely what standard of specificity is required of a public recital." In this case, however, the court found the Board's actions insufficient, based on the "key-terms" rule that had been established by the PAC in a 2014 opinion. 

Applying the PAC's "key-terms" rule to the facts of this case, the court found that the public recital did not provide the public with any of the key terms of the lease agreement or covenants, (i.e., what was being leased, who was leasing it, how much the Park District would be compensated for the lease).  

Acknowledging its earlier decision in Board of Education of Springfield Sch. Dist. No. 186 v. Attorney General, the court noted that its holding in this case does not mean that the public body must provide a detailed explanation about the significance or impact of the proposed final action. (We reported on the Springfield case here). However, the court concluded that a public body cannot provide no details at all in taking final action, as the court found in this case. 

At the end of the opinion, the court acknowledged that the Illinois Supreme Court granted leave to appeal in the Springfield case. That case may provide public bodies with further guidance on how to interpret and apply the "public recital" provision of the OMA. Until then, public bodies might want to consider how this case affects its own final actions and whether they are providing sufficient information about an item prior to a vote. That may involve some explanation by the chair prior to a vote, or engaging in some discussion, or in ensuring that documents are provided to the public so they can understand what is being voted on (as happened in the Springfield case).  

Post Authored by Julie Tappendorf

Tuesday, November 22, 2016

Complete Failure to Respond to FOIA is a Violation

It's the year end rush for the Illinois Attorney General to publish binding Public Access Counselor (PAC) opinions.  Today's opinion is interesting more for what it didn't say, than what it did.

Last week, the PAC issued PAC 16-010, finding the Chicago Public Schools (CPS) in violation of FOIA for failing to timely respond to a FOIA request. The Sun-Times had filed a FOIA request seeking copies of all invoices submitted to CPS from an auditing company. The newspaper received an automatic email reply from CPS stating as follows:
Due to the high volume of FOIA requests received by CPS, we are unable to fulfill your request within 5 business days. Section 3(e)(vi) of FOIA permits CPS to extend the response time to 10 business days if a request cannot be fulfilled in 5 business days without unduly burdening or interfering with the operations of the District. We hereby extend the response time to your FOIA request to 10 business days in accordance with 5 ILCS 140/3(e)(vi).
A month after submitting the request to CPS, the newspaper filed a request for review with the PAC alleging that it still had not received a response to its FOIA request.  

It will come as no surprise that the PAC found CPS in violation of FOIA for its complete failure to respond to the FOIA request. What is interesting is what the PAC didn't address - whether the "auto-extension" email used by CPS to automatically extend the time for response to all FOIA requests by an additional 5 business days is sufficient under FOIA. Certainly, public bodies are expressly authorized to take a 5 day extension under section 3(e)(vi), so long as it informs the requester as to which of the statutory reasons it relies on for extending the time. Apparently, the PAC found CPS' rationale in its "auto-extension" (that the extension was needed due to a high volume of FOIA requests) an adequate justification for the additional 5 day response time. Of course, the fact that CPS did not respond within the statutory time period, as extended, or properly deny the request, resuling in the PAC's finding that CPS violated FOIA.

Post Authored by Julie Tappendorf

Monday, November 21, 2016

Chicago's Shared Housing Ordinance is Challenged in Court

Airbnb, Home Away, and other home sharing services have been under scrutiny by a number of municipalities across the country, some of which have enacted ordinances and other regulations restricting, and in some cases, even prohibiting homeowners from renting out their homes through the websites offered by these services. Recently, a group of Chicago homeowners (represented by the Liberty Justice Center) challenged the City of Chicago's "Shared Housing Ordinance," alleging that the ordinance is an unconstitutional intrusion into their privacy, due process, and equal protection rights. Mendez v. City of Chicago, No. 2016 CH 14897. The complaint was just filed last week, so we don't have any indication how successful the challenge will be, but the claims made in the complaint may be of interest to municipalities that have adopted, or may be considering adopting, similar regulations.

In June of this year, the Chicago City Council adopted Ordinance O2016-5011 to regulate "shared housing units." The ordinance requires shared housing unit operators (hosts) to register with the City and pay a 4% surcharge on the gross rental or leasing charge of all rentals. The ordinance also requires "intermediaries" or "advertising platforms" (e.g., Airbnb) to pay a minimum license fee of $10,000 and obtain a license from the City. The ordinance also includes various insurance requirements and other regulations on short-term rentals and the rental of shared housing units. 

The lawsuit claims that the following provisions of the ordinance are unlawful, among others:

  1. The required inspections are allegedly warrantless searches in violation of the 4th Amendment to the U.S. Constitution and Article I, section 6 of the Illinois constitution.
  2. The record-keeping obligations are allegedly warrantless inspections of guests' personal inspections.
  3. The ban on using homes that are not primary residences as vacation rentals or housing units is allegedly discriminatory.
  4. The noise restrictions are allegedly unreasonable.
  5. The 4% surcharge is allegedly a discriminatory tax.
Plaintiffs ask the court to declare the ordinance unconstitutional as a violation of their right to be free of warrantless searches, their due process rights, and their equal protection rights. Plaintiffs also claim the the ordinance violates the Commerce Clause because it discriminates against residents of other states because it prohibits non-residents who own property in Chicago from using their home for short term and shared housing rentals. 

We will certainly keep a close eye on this case to see how the court views Chicago's shared housing regulations.

Post Authored by Julie Tappendorf

Friday, November 18, 2016

Village Responsible for TIF Refund Reimbursement

The Village of Arlington Heights adopted its first TIF district in 1983, and a second one in 1986. The Village developed a variety of properties within the TIF districts over the years, including public garages, a park, train station, theater, and various other improvements. Pursuant to the TIF Act, the Village received all tax increment attributable to the increase in property values within the TIF district for a period of 23 years. 

While the TIFs were still active, owners of property within TIF 1 and 2 filed successful tax objections, and the Cook County Treasurer was ordered to issue refunds to these taxpayers in the amount of the tax increments that were overpaid, plus interest. The treasurer issued the refunds, and then sought reimbursement from the Village. Because there was no longer any revenue in the TIF funds held by the treasurer (the TIFs had expired), the treasurer looked to the Village for money necessary to reimburse her for tax increment refunds she made after the TIFs expiration. 

The Village filed a lawsuit seeking a declaration from the court that it was not liable to repay the treasurer for "post-TIF" refund payments on its own, and that such refunds should be shared by all of the taxing districts. Both the trial and appellate courts disagreed, finding that the treasurer had the right to seek reimbursement from the Village for funds overpaid to the Village during the lifetime of the TIFs, even after the TIFs had expired. Since the Village was the sole taxing body that benefited from these overpayments, it should be the one to reimburse the treasurer for the refunds the treasurer had to make to property owners. If the Village refused to repay the treasurer, the treasurer could collect those funds from the next property taxes collected by the Village, even if those taxes were not TIF funds.  Village of Arlington Heights v. Maria Pappas, 2016 IL App (1st) 151802.

Post Authored by Julie Tappendorf

Thursday, November 17, 2016

Validity of Rezoning Action Remanded Back to Trial Court

In 2012, Logan County adopted a resolution approving a rezoning application of a parcel of land from an agricultural district to a manufacturing district, to allow limestone mining operations. Shortly thereafter, neighboring property owners filed suit to challenge the rezoning. In 2015, Logan County amended the rezoning approval. After plaintiffs filed their third amended complaint challenging the validity of the original 2012 rezoning action, the defendants filed a motion to dismiss arguing that the amendment action "mooted" plaintiffs claims because it ratified and fixed any alleged problems with the 2012 rezoning approval. The trial court agreed and dismissed the case.

On appeal, plaintiffs argued that their claims were not moot because the 2015 zoning amendment could not ratify the 2012 rezoning or otherwise classify the property into the appropriate zoning district. The appellate court agreed with plaintiffs that the 2015 amendment did not rezone the property. The court then remanded the case back to the trial court to rule on the issue of whether the 2012 rezoning approval was valid. Schreiner v. County of Logan, 2016 IL App (4th) 160122-U

Post Authored by Julie Tappendorf

Wednesday, November 16, 2016

Repeal of Property Tax Rebate Not a Taking

A resident sued the City claiming that the City's repeal of a previous ordinance that provided a 25% tax rebate to qualifying homeowners (and failure to pay the rebates) was an unconstitutional "taking" of her property in violation of the Fifth Amendment of the U.S. Constitution. Both the district court and the Seventh Circuit Court of Appeals rejected her claims, and dismissed her case in Bell v. City of Country Club Hills, (7th Cir. Nov. 8, 2016).

In 2012, the City had adopted an ordinance providing homeowners with a 25% rebate of 2010 city property taxes paid in 2011, subject to the filing of an application by the homeowner and approval by the city clerk. The City processed the applications, prepared the rebate checks, but never distributed them to homeowners. The resident filed a lawsuit to enforce the rebate ordinance, and shortly thereafter, the City repealed the ordinance. When objections were raised to the legality of the meeting at which the repeal vote was taken, the City approved a second repeal ordinance at a later meeting.

The Seventh Circuit rejected the resident's "takings" claim, finding that she had no property interest in the rebate. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Here, the resident could not establish any vested right to the rebate. Also, no state law or ordinance guaranteed anyone an entitlement to the rebate. Instead, plaintiff had a mere expectation that she would receive the rebate when she filed her application, which does not rise to a constitutionally protected property right required to establish a takings claim. The court rejected the resident's due process claim on the same basis.

Post Authored by Julie Tappendorf

Tuesday, November 15, 2016

Binding PAC Opinion Addresses Right to Privacy of Former Elected Official

As we reported yesterday, the Public Access Counselor (PAC) issued two binding opinions in November. The second, PAC Opinion 16-009, addressed five FOIA requests from reporters to the Village of Downers Grove, which each sought police records and reports related to former State Representative Ronald Sandack, who lives and works in the Village. As some of you may recall, Sandack resigned from the Illinois House of Representatives in 2016 after allegations of an extortion scandal and evidence of inappropriate online activities.  This opinion, while lengthy, is worth a read since it provides some good guidance to public bodies on how the personal privacy exemption works, particularly when the records relate to public officials.

In response to each request, the Village responded with a copy of the incident report but redacted most of the information in the report under Sections 7(1)(b) (private information), 7(1)(c) (personal privacy), and 7(1)(d)(vii) (pending law enforcement proceedings) of FOIA. The responses also denied evidentiary documents under the personal privacy and law enforcement proceedings exemptions. The requesters all submitted  requests for review with the PAC to challenge the Village's redaction of the documents.

The Village responded to the PAC's request for unredacted copies for review, and also submitted Supplemental Responses in which it disclosed some portions of the records that had been denied and provided additional records.  The Supplemental Responses continued to redact and withhold other portions of the records under the three exemptions it previously cited. The PAC found that some of the allegations were resolved by the additional information that was disclosed in the Supplemental Responses. 

As for the redactions under the "private information" exemption, the Village argued that “home address and personal telephone number, Facebook account names, numbers, and URLs, Skype usernames, and account transaction numbers,”  were properly redacted based on the private information exemption in 7(1)(b).  While the PAC agreed that most of this information fell within the 7(1)(b) private information exemption, it found that the Facebook and Skype account names (which were in Sandack's name) did not.  The PAC reasoned that although names are specific to an individual, they are not unique or confidential.  Further, the definition of “private information” in FOIA does not exclude names.  As such, the PAC found that the Village improperly redacted the Facebook and Skype account names. 

The PAC then evaluated the redactions under section 7(1)(c) of FOIA, which exempts “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy…”  The Village argued that certain redactions, including Sandack’s statement and birth date were exempt under 7(1)(c).  Further, the Village also redacted information relating to the identities of suspects and withheld records that Sandack provided to the police when he reported the crime.  

First, the PAC agreed that Sandack’s birth date was exempt from disclosure under 7(1)(c). 

Second, in evaluating whether Sandack’s statement and the records he provided to police should be released, the PAC found that Sandack has a diminished right to privacy as a public official.  The PAC then balanced the public interest in disclosure of this information versus Sandacks’ interest in privacy.  

The PAC determined that interest in disclosure of this interest was strong because Sandack was a public figure who voluntarily engaged in social media use and the information relates to allegations of a crime committed against a public official, particularly where it serves as a factor in the official’s decision to resign.  The PAC also noted that there were no alternative means for the requesters to obtain the records. 

Nevertheless, in a surprising decision in favor of the Village, the PAC ultimately determined that disclosure of most of the remaining redacted documents would constitute an invasion of Sasndack’s personal privacy.  The PAC noted that the records contained personal and specific information about how Sandack became involved with the extortion scheme.  The PAC found no legitimate public interest that would outweigh Sandeck’s right to privacy.  As such, the PAC found that he Village sustained its burden in proving that this information was exempt under 7(1)(c).

The PAC then evaluated the redactions related to the identities of suspects.  The PAC again concluded that the Village properly redacted this information under 7(1)(c) as Sandack was a victim, rather than the target of the investigation.  The PAC found that as the suspects had not been arrested or charged with a crime, their right to privacy outweighed any public interest in disclosure of this information.

The PAC found that the Village did not, however, sustain its burden in showing that the e-mails and documents obtained from Western Union and MoneyGram were exempt under Section 7(1)(d)(v) of FOIA.  The PAC found that the information reflected routine investigative steps, and not specialized investigative techniques.  Further, the PAC found that release of this information would not cause harm to the Police Department.   However, the Village did prove that disclosure of the remaining records concerning Facebook, Yahoo, and Skype would cause harm to the Police Department by revealing insights into specialized investigative techniques.  The PAC found that information redacted from records regarding a suspect’s online profile and communications with the FBI were specialized investigative techniques that were exempt from disclosure under 7(1)(d)(v).

The PAC further found the Village’s reliance on the privacy rights in the Illinois Constitution of 1970 to be misplaced as Sandack was not a victim of violent crime.  

In sum, Opinion 16-009 is interesting in that it found a right to privacy for a public official, despite the diminished privacy rights of elected officials.  

Post Authored by Erin Baker, Ancel Glink 

Monday, November 14, 2016

Binding PAC Opinion Provides Guidance on "Unduly Burdensome" Provision of FOIA

Two binding opinions were recently issued by the PAC - that's 2 in one month and it's only November 10th! We'll report on these over the next two days.

In PAC Op. 16-008, the PAC found a public body in violation of FOIA for improperly denying a  FOIA request as unduly burdensome. The request asked for digital copies of emails between a City official and planning consultants from June 1 through July 1, 2016. The FOIA officer responded that the request would be unduly burdensome as there were more than 50 emails, consisting of over 100 pages, plus attachments, and asked the requester to narrow the request. The requester responded by filing a complaint with the PAC, objecting to the denial.

The City responded to the complaint by stating that it did not deny the request, but simply asked the requester to narrow the scope of the request because it could take several hours by two City employees to compile and review the documents for appropriate redactions. 

The PAC provided some guidance on how the "unduly burdensome" provision of FOIA works.  

First, the PAC stated that the act of informing a requester that a request is unduly burdensome and asking the requester to narrow it is, in and of itself, a denial under FOIA. The City argued that it had not intended the request to narrow as a denial, and should had an opportunity to decide to provide the documents had the requester responded that it would not narrow its request. The PAC rejected that argument, stating that FOIA provides that a request to narrow is a denial.

Second, the PAC analyzed whether the request was "unduly burdensome" under FOIA. Interestingly, the PAC cited the Shehadeh v. Madigan case, which involved the Attorney General's own use of the unduly burdensome provision of FOIA to deny a request involving about 9,000 records. In that case, as you may recall, the court held that the Attorney General did not violate FOIA when it denied the request as unduly burdensome. Nevertheless, the PAC did not take the same position with the City's use of that same provision in this case. Instead, the PAC determined that in this case, "compliance with the requirements of this Act is a primary duty of public bodies to the people of this State." The PAC acknowledged that retrieval and review of 174 pages of documents might impose a burden but ultimately concluded that the City failed to show that compliance "would so burden the operations of the City as to outweigh the public interest in the disclosure of the requested records."  In other words, compliance with the FOIA request outweighed the burden to the City in this case, but when a request involves the Attorney General, the opposite holds true.

In sum, the PAC found the City in violation of FOIA for improperly denying the request as unduly burdensome.

What is interesting about this case is that the PAC didn't reject the City's argument that compliance would impose a burden on the City's operations. Instead, the PAC found that the public interest in these documents outweighed any burden, and that the City failed to demonstrate with specificity how compliance would constitute a significant burden on City operations. So, if a public body is going to use the unduly burdensome language in responding to a FOIA request, it will need to provide significant detail about how and why compliance would be an undue burden. Frankly, in my opinion, the City appeared to do just that in explaining how many hours it would take to review the documents, how many staff members would be involved, the number of employees in the office, and the other duties these employees had. It really is not clear how much more information the City could have provided. 

Post Authored by Julie Tappendorf

Thursday, November 10, 2016

Bill Would Authorize Recall of Certain Illinois Elected Officials

Illinois State Representative Kenneth Dunkin recently introduced House Bill 6616, also known as the Laquan McDonald Act, to the General Assembly.  If passed, the new law would establish a procedure to allow voters to recall the Chicago Mayor, a Chicago Alderman, or the Cook County State’s Attorney. 

While the process does vary depending on which office is being recalled, two documents are always needed: an affidavit and a petition. 

First, an affidavit must be submitted to the election commissioners providing notice of intent to circulate petition to recall the Mayor, an alderman, or the State’s Attorney.  The affidavit cannot be filed within the first six months of the officer’s term of office. In order to recall the Mayor, the affidavit must be signed by both the petition organizers and at least two aldermen before it can be submitted to the election commissioners.  After the affidavit is filed, the organizing electors have 150 days to sign and start circulating the petition to all qualified, register voters.  The petition must include the name and title of officer to be recalled, a statement of the reasons for the proposed recall and the name, signatures and address of each proponents of the recall.  Furthermore, a notice of intent to recall must be published in a newspaper within the relevant jurisdiction or, if no newspaper available, posted in at least three public places.  The officer that the petition is trying to recall has seven days to file an answer. 

When recalling the Mayor, the petition must be signed by a number of electors equal in number to at least 10% of the total votes cast for Mayor in the last election.  For recalling an Alderman, the petition must be signed by a number of electors equal in number to at least 10% of the total votes casted in the aldermanic election or three times the amount of signatures needed to be nominated by law, whichever is greater.  Lastly, recalling the State’s Attorney, the petition needs to be signed by a number of electors equal in number to at least 5% of the total votes cast for State’s Attorney in the preceding election. 

If the petition is found to be valid and sufficient, it will be certified by either the board of election commissioners (in the case of recalling the Mayor or Alderman) or the Cook County Clerk (in the case of recalling the State’s Attorney).  Once certified, a special recall election will be held within 60 days.  If a majority of voters do not vote to recall, another recall petition cannot be brought for six months.  However, if a majority of voters do vote to recall, the officer will be removed immediately and a special successor primary election will be held.

Candidates for the special election must petition their candidacy.  However, the number of signatures required changes dramatically depending on which office is being recalled. New candidates for Mayor must receive 12,500 signatures, whereas for Alderman only 500 are needed.  The largest volume of signatures is 20,000 for State’s Attorney.   In the case of recalling an Alderman or the State’s Attorney, if no candidates are presented within the times required, then a replacement shall be appointed as provided by law.  Whereas if the Mayor is recalled, the Vice Mayor will fill the office until a new Mayor is elected.

If no candidate receives the majority vote in the special recall election, a special runoff election will be held.  However, only those receiving the highest and second highest number of votes will appear on the runoff election ballot.  

It's not clear whether this particular bill has any traction but there certainly has been plenty of talk about legislation to authorize voter recall of elected officials in every recent legislative session, so we may be seeing something move forward at some point.

Post Authored by Amanda Riggs and Julie Tappendorf, Ancel Glink

Monday, November 7, 2016

Cook County Adopts Minimum Wage Ordinance

Cook County recently took action that will certainly be of interest to Cook County municipalities, as the county's new minimum wage law applies throughout Cook County, even in incorporated areas within cities and villages. Although municipal employees are exempt from the law, most businesses within Cook County will be subject to the new law.

A summary of the new law first posted on our sister blog last week on The Workplace Report with Ancel GlinkCook County Passes Ordinance Raising The Minimum Wage To $13 By 2020 and is reprinted below.

Following the lead of the City of Chicago and other municipalities nationwide, on October 26, 2016, the Cook County Board of Commissioners voted to gradually increase the minimum wage in Cook County to $13 per hour by July of 2020. The ordinance applies to any business or individual that employs at least one “employee” who performs at least two hours of work in any two-week period while physically present within the geographical boundaries of Cook County, with very few exceptions. The new law applies to the all of Cook County, including unincorporated areas. However, home-rule towns can vote to opt out of the increase.

Effective July 1, 2017, employers in Cook County will be required to pay a higher minimum wage that will continue to increase every year thereafter. Cook County’s ordinance is similar to the City of Chicago’s minimum wage increase, which also gradually raises the minimum wage to $13 per hour by 2019. The following provides the graduated scale of the increases under the ordinance:

July 1, 2017 – the minimum wage will increase from $8.25 to $10.00 per hour.

July 1, 2018 – the minimum wage will increase from $10.00 to $11.00 per hour.

July 1, 2019 – the minimum wage will increase from $11.00 to $12.00 per hour.

July 1, 2020 – the minimum wage will increase from $12.00 to $13.00 per hour.

July 1, 2021 and every July 1 thereafter – the minimum wage will increase in proportion to the increase in the CPI, not to exceed 2.5% in any year.

It should be noted that on July 1, 2021 and thereafter, the ordinance provides that the minimum wage will not increase when the unemployment rate in Chicago for the preceding year, as calculated by the Illinois Department of Employment Security, was equal to or greater than 8.5 percent. What is more, Tipped workers who make $4.95 under Illinois law will not see a wage increase until July 1, 2018, and these wage increases will increase in proportion to the increase in the CPI, not to exceed 2.5% in any year. 

Section 42-12 of the ordinance provides several categories of exceptions in which employers are not required to pay the minimum wage, which are as follows:

1. Employees taking part in government-subsidized temporary youth employment programs.

2. Employees taking part in government-subsidized transitional employment programs.

3. Employees of any governmental entity other than the County.

4. Certain employees exempted under the Illinois Minimum Wage Law, including: (a) Employees under 18 years of age. Employers are authorized to pay these employees a wage 50 cents below the state minimum hourly wage; and (b) Adult employees over 18 years of age in the first 90 days of employment. Employers are authorized to pay these employees a wage no more than $0.50 below the state minimum wage.

In addition to raising the minimum wage, the ordinance establishes additional obligations for Cook County employers. More specifically, Cook County employers will be required to comply with certain notice provisions. Employers will be required to (1) conspicuously post at each facility within Cook County a notice advising employees of their rights under the ordinance; and (2) providing employees written notice advising employees of their rights under the ordinance with their first paycheck issued after July 1, 2017. The ordinance also provides that employers may not discriminate or take any adverse action against any covered employee in retaliation for exercising any right covered under the ordinance. 

The ordinance charges the Cook County Human Rights Commission with the responsibility of enforcement. The ordinance also provides significant penalties for non-compliance and expressly creates a cause of action against an employer who underpays its employees. In particular, any affected employee may recover damages in the amount equal to three times the full amount of any such underpayment, along with costs and attorneys’ fees. Moreover, the penalties for noncompliance are steep, as each day of noncompliance is a separate offense with civil penalties of $500 to $1,000. Additionally, failing to properly pay could subject an employer to various other laws such as the Federal Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment Collection Act, all of which provide for damages, interest and attorney’s fees. 

Post Originally Authored by Jeff Brown, Ancel Glink

Wednesday, November 2, 2016

School District Not Liable for Student Bullying Claims

Two sisters and their parents sued Consolidated School District 230 alleging breach of contract and tort claims related to the conduct of the sisters’ basketball teammates. Mulvey v. Carl Sandberg High School et al, 2016 IL App (1st) 151615 (October 28, 2016). The complaint alleged that the sisters were ignored, harassed, humiliated, physically assaulted, injured and intimidated by their teammates and that the District failed to take proper action, including enforcing its anti-bullying policies.

The breach of contract claims concentrated on the anti-bullying policies the District incorporated into its student handbook and athletic handbook in response to the Illinois Bullying Prevention Statute, 105 ILCS 5/27-23.7. The sisters alleged that the handbooks formed a contract with the District and that the District breached the contract when it failed to rectify the conditions that resulted in bullying, intimidation, and harassment. The District argued that, as a matter of law, public school handbooks cannot form the basis of a contract. The circuit court agreed and dismissed the claims.

The sisters' tort claim alleged that the District acted with utter indifference and reckless disregard regarding the bullying conduct. The District moved to dismiss that claim on the basis of discretionary immunity and the one-year statute of limitations under the Tort Immunity Act. The circuit court again agreed and found that the District was immune and the claim was time barred.

On appeal, the appellate court affirmed the dismissal of all claims. For the contract claims, the appellate court focused on the elements needed to form a valid contract – offer, acceptance, and consideration. The court explained that public school student handbooks cannot form the basis of a contract because the handbook provisions are not specific enough to constitute an offer and student attendance and the payment of taxes are not valid consideration. For the willful and wanton conduct (tort) claim, the appellate court cited two other school bullying cases, Malinski and Hascall, and found that the implementation of an anti-bullying policy is discretionary and, as a result, the District was immune under the Tort Immunity Act.

Post Authored by Caitlyn Sharrow, Ancel Glink

Disclosure: Ancel Glink represented the Defendants in this case. 

Monday, October 31, 2016

Adult Use Ordinance Unconstitutional Because it Treats New and Existing Businesses Differently

About 10 years ago, the Village of Bridgeview, Illinois passed ordinances banning the sale of alcoholic beverages at new adult businesses. The one existing adult business in the Village was exempted from the regulation. Plaintiff (a business that wanted to open up a new adult business in the Village) filed suit challenging the ordinances on a variety of constitutional bases, including that they were unconstitutional under the First Amendment.  

The district court struck down that portion of the ordinance that banned alcohol sales at adult businesses, finding that.imposing this restriction only at new adult businesses was unreasonable. The court determined that the Village could not provide a valid justification for treating new businesses differently from the existing business. Since the ordinance establishing the restriction included a justification that the sale and consumption of alcoholic beverages in an adult business had adverse secondary effects, and these secondary effects would presumably occur at old or new businesses, the court found the restriction unconstitutional.

The case was remanded to address plaintiff’s other arguments, including whether there were reasonable opportunities to express adult speech. 7421 West 100th Place Corp. v. Village of Bridgeview, 2016 WL 5373062 (ND IL 9/26/16).