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Friday, January 29, 2016

USSCT Hears Government Employee Speech Case

The U.S. Supreme Court will consider a First Amendment case involving a government employee who claims he was demoted for political reasons.  The Court heard oral arguments last week, and will issue an opinion this term.  The question before the Court is whether a public employee can establish a violation of his right to political association where he was demoted for holding a campaign sign for his employer's (mayor) opponent. Heffernan v. City of Paterson.

According to Scotusblog, the Justices grappled with a variety of issues and questions, including whether merely holding a campaign sign was "associating" with someone that would be protected by the First Amendment.  Much of the questioning centered on whether a court should find a First Amendment violation for a "perceived" exercise of First Amendment rights (i.e., the government's wrong doing ) or whether the speaker must show that he was, in fact, exercising his First Amendment protected rights. 

This is an interesting case for government to watch. It reminds me of the "Facebook Like" case where deputies were fired for "liking" their employer's opponent in the election. In that case, the appellate court ruled that a "like" was First Amended protected "speech," and overturned the sheriff's termination of the deputies for exercising their political speech rights.  You may recall this case on the blog here.

Post Authored by Julie Tappendorf

Wednesday, January 27, 2016

Bill Would Affect Use of FOIA Exemptions for Police Recordings

The Illinois Senate recently introduced a bill that would amend the Freedom of Information Act (FOIA). Senate Bill 2210 provides that video captured by an in-car camera or police worn body-camera of (1) an officer discharging a firearm or (2) an officer-involved death will not be exempt from a FOIA request unless the public body obtains a court order authorizing use of the exemption. The amendment would require a court to conduct an expedited hearing on the applicability of the exemption.  The bill does not address whether the time-frame for response is "stayed" while the court order request is pending.  Nor does the bill provide any guidance on the process for how a public body initiates the court proceeding to request an order authorizing use of a FOIA exemption.

The introduction of the amendment was in response to the Laquan McDonald shooting. You can read about Senator Van Pelt’s (the sponsor of the bill) position regarding the amendment here.

Post Authored by Douglas Spale & Julie Tappendorf, Ancel Glink

Tuesday, January 26, 2016

Ancel Glink Q of the Month - Limits on Public Comment

Can we limit the total time for public comment at our city council meetings to 30 minutes, and each commenter to 3 minutes?

Yes, so long as the city council has adopted rules for public comment. In a number of advisory opinions, the Public Access Counselor of the Attorney General's Office upheld similar time limitations on public comment. The PAC cautioned, however, that in order to restrict public comment in any way, the public body must have approved public comment rules.  Having a long-standing practice of limiting the time frame for public comment is not sufficient to satisfy the requirement of approved rules, according to the PAC.  So, if your public body has routinely placed restrictions on public comment (time limits, sign-ins, etc), it should adopt rules for public comment to incorporate those practices.  

Post Authored by Julie Tappendorf

Monday, January 25, 2016

Tax Levy Extension Update

Despite legislators widely supporting a property tax freeze as part of a possible budget compromise, the economy is doing just fine virtually freezing taxes on its own without any legislative assistance. The Illinois Department of Revenue recently released the extension limitation that will apply to 2016 tax levies:  0.7%.  

Based on this number, if an Illinois local government's tax extension for 2015 was $100, the government's taxes for 2016 (excluding taxes from new construction, annexations and expiring TIF increment) would be allowed to increase by $0.70.  Combined with the 2015 extension limitation (0.8%), taxes for non-home rule governments are eligible to increase by just 1.5% over two years.

Post Authored by Adam Simon, Ancel Glink

Thursday, January 21, 2016

City Managers Conference in February

Next month, the Illinois City/County Management Association (ILCMA) will be hosting its winter conference in Normal, Illinois, from February 3-5, 2016. Ancel Glink attorneys will be presenting two sessions at that conference. 
  • Thursday,  February 4th, from 3:00 to 4:15 p.m. - Julie Tappendorf will be participating on the "E-Hostility" panel.
  • Friday, February 5th, at 9:00 - 10:15 a.m. - Darcy Proctor and Bob McCabe will be presenting the "Employment and Labor Law Hot Topics" session. 

For more information about the conference, you can visit the ILCMA website here and view the conference brochure here.

We hope to see you in Normal!

Wednesday, January 20, 2016

USSCT Will Hear Regulatory Takings Case

It is not often that the U.S. Supreme Court hears a case involving the Fifth Amendment Takings Clause. That clause provides that private property cannot be taken by government without the payment of just compensation.  There are a handful of seminal USSCT cases that interpret what that clause means, including Dolan, Nollan, Lucas, and more recently, Koontz.  Might the next seminal USSCT case be Murr?  We'll certainly find out after the U.S. Supreme Court recently agreed to hear an appeal in the case of Murr v. Wisconsin.  

In Murr, a family sued, claiming that it suffered an illegal government taking when it was denied the ability to develop one of the family's adjoining waterfront parcels. The county had an ordinance that prohibited the individual development or sale of adjacent, substandard lots under common ownership, unless an individual lot has at least one acre of net project area. The Murrs had applied for a variance to separately use or sell their two contiguous lots. The variation was denied, and the Murrs sued alleging they suffered a regulatory taking without compensation. 

The Wisconsin Court of Appeals ruled against the Murrs, holding that they were not entitled to compensation for a regulatory taking under the Fifth Amendment. The court based its ruling on the county ordinance that "merged" the two lots into one single, buildable lot. Because the Murrs could continue to use this merged property for residential purposes, they did “not suffer the loss of substantially all of the beneficial uses of his land." Therefore, there was no compensable taking of their land.

The U.S. Supreme Court is being asked to settle this issue in regulatory takings law - whether two adjoining lots held in common ownership should be combined (as the Murr court did) or treated as separate lots for a takings analysis.

A copy of the Wisconsin Court of Appeals decision can be found here.

We will keep you posted on this case.  

Tuesday, January 19, 2016

Zoning Ordinance Limiting Tattoo Parlors Unconstitutional

From the IML comes an interesting First Amendment case involving zoning and tattoo parlors. Buerhle v. City of Key West (11th Cir. December 29 2016). The City of Key West Florida adopted an ordinance that prohibited more than two tattoo establishments in the City's historic district. A tattoo artist challenged the ordinance after he was barred from opening up a business in the historic business. The lawsuit claimed that the zoning regulation violated the First Amendment because a tattoo is expressive speech under the constitution.  The 11th Circuit Court of Appeals agreed, and found the ordinance unconstitutional. 

The question of whether a tattoo is protected speech was a case of first impression for the 11th Circuit. Other courts had already ruled that tattoos were protected speech, including the 9th Circuit Court of Appeals, and the Arizona Supreme Court in a case we wrote about here.

Post Authored by Julie Tappendorf

Monday, January 18, 2016

Failure to Respond to FOIA = Violation....No, Really

The Public Access Counselor of the Illinois Attorneys General Office just issued its first opinion of 2016 - and you guessed it, the PAC found the public body in violation.  PAC Op. 16-001.
A reporter for the Chicago Sun-Times filed a FOIA request with the Chicago Police Department asking for "First Amendment-related worksheets" and emails and other communications relating to the Communist Party, Ferguson, the National Moment of Silence, and Black Lives Matter. Two weeks after he filed the request with the CPD, the reporter filed a complaint with the PAC claiming that the CPD failed to produce the records or respond to the request. Not surprisingly, the PAC found the CPD in violation of FOIA where the CPD did not produce the records or extend the time period for response within the 5 business days required for response under FOIA.
As I've noted on this blog in the past, I wish the PAC would use its authority to issue binding opinions (which it exercises very rarely) to publish opinions that actually provide guidance to public bodies on complex or ambiguous provisions of FOIA or OMA instead of continuing to issue binding opinions in situations that are quite obvious to everyone.  In any event, I think we've all seen enough binding opinions from the PAC that you have to respond to FOIA within the statutory time period or be found in violation.  
Post Authored by Julie Tappendorf

Friday, January 15, 2016

Bill Would Prohibit Social Media Posts About Serious Accidents for One Hour

A state legislator in Kentucky recently introduced Kentucky HB 170, which relates to the use of electronic media, including social media.  The bill is pretty short and simple - if passed, it would make it a crime for an individual to post any information identifying a victim of an event that results in a serious physical injury for at least one hour after the event was first witnessed. As an example, if a bystander sees a traffic accident involving serious injuries, he or she is prohibited from posting about the event on Facebook or other social media site for at least an hour.  

Supporters of the legislation argue that it can be tragic for a close relative to find out about a loved one's injuries via social media.  Opponents say the bill is unconstitutional, as a violation of the First Amendment. It's not clear that the bill has any traction, but it will be worth watching.

Post Authored by Julie Tappendorf

Thursday, January 14, 2016

Does RLUIPA Protect Religious Group's Ability to Operate Brewery/Winery?

From our friends at RLUIPA Defense comes an interesting case involving a religious organization's zoning application to expand its existing use to allow a brewery and winery, among other uses. 

RLUIPA Defense recently reported on a lawsuit filed by Fraternite Notre Dame, Inc. against McHenry County challenging the County’s denial of their application to amend a conditional use permit.  In 2005, Notre Dame obtained conditional use approval to develop its 65-acre property in the agricultural zoning district with a monastery, church, seminary, convent, retreat center, bakery, printing press, and cemetery subject to various conditions.  But when it petitioned the County’s Board to amend the conditional use permit to allow further development of its property, including constructing a barn, a commercial kitchen to make wine and brew beer, a school with attached dormitory (80 students), nursing home (50 beds), and a gift shop to sell pastries, religious and inspirational articles, and wine and beer made on-site. The County denied the request for an amendment based on traffic and other concerns, which led to the lawsuit.

RLUIPA Defense notes that the case presents an interesting question as to the scope of what constitutes "religious exercise" under federal law.  Will RLUIPA extend to a brewery/winery?  Stay tuned.

Read the entire blog post here:  Illinois Nuns Sue Over Brewery/Nursing Home Denial

Post Authored by Julie Tappendorf

Wednesday, January 13, 2016

Village's Recall Ordinance Held Invalid

The Village of Dolton passed an ordinance last year providing for the recall (removal from office) of elected officials. Under the ordinance, an elected official could be recalled and removed from office by a majority vote of the electorate at a recall referendum.  Two elected officials filed suit, claiming that the ordinance was unconstitutional on a number of grounds, including that the Village was required to submit the issue to referendum before passing an ordinance. The Village defended its ordinance by arguing that it had home rule authority to adopt a recall ordinance. The appellate court agreed with the plaintiffs, and found the ordinance unconstitutional. Heynard v. Village of Dolton, 2016 IL App (1st) 153374

First, the court found that the ordinance "directly impacts the terms of office of elected officials" by establishing a mechanism by which the term of an elected official can be "shortened" upon a successful recall. Any alteration to the term of office of an elected official requires approval by referendum under the Illinois constitution.  Second, the court found that the ordinance changes the manner of selecting elected officials because upon a successful recall, the mayor has the authority to appoint an individual to fill the vacancy. In essence, the filling of a vacancy with a new trustee entails "selection," and that power of selection is reserved to the voters by state statute. The court concluded that Dolton's ordinance was invalid because it violated the Illinois constitutional limitation on a home rule's authority.

In short, a home rule municipality cannot, by ordinance, establish a recall procedure without first going to referendum for prior approval of the specified procedure. However, the court acknowledged that a home rule municipality could conceivably establish a recall procedure by ordinance, but only after it was approved by a valid voter referendum.

As a side note, prior to the court invalidating the recall ordinance, four referenda petitions were filed based on the recall ordinance. Those petitions were challenged, and an electoral board was convened to rule on the validity of the petitions. All four referenda petitions were found to be 300 to 500 signatures under the required minimum, and the electoral board upheld all four objections, striking the four petitions.

Post Authored by Julie Tappendorf

Tuesday, January 12, 2016

5 Labor & Employment Developments to Watch in 2016

From Ancel Glink's labor & employment blog, The Workplace Report:  

5 Developments to Watch in 2016
As we ring in the new year, here are five issues that employers will want to pay attention to in 2016:
1. Transgender employees. Protections for transgender employees will continue to be a hot issue in 2016. Expect the EEOC to continue aggressively pursuing employers who are accused of discrimination against transgender employees. Employers need to implement policies and train staff on this issue ASAP.
2. Obamacare. Expect more changes to Obamacare in 2016. The end of 2015 saw the postponement of the "Cadillac Taxs" for two years, possibly signaling its demise. The 2016 elections will surely usher in other changes to the law.
3. Overtime regulations. New rules regarding employee overtime pay will take effect this summer. Additional rules may be implemented by the Department of Labor in 2016 regarding who is qualified for overtime pay.
4. Minimum Wage. 2016 will continue to see calls to increase the minimum wage. It is possible that a new state law increasing the minimum wage will be passed. Additionally, some municipalities and counties may also pass ordinances increasing the minimum wage.
5. Paid Sick Leave. Paid sick and maternity/paternity leave has become a hot political issue. Last year, President Obama granted federal workers 6 weeks of paid maternity/paternity leave. Expect lawmakers to call for legislation providing paid sick leave and maternity/paternity leave for all employees. Also expect unions to increase their demands for this in bargaining.
For more information, click HERE.

Post originally authored by Margaret Kostopulos, Ancel Glink, for The Workplace Report

Friday, January 8, 2016

Upcoming 2016 Parks Conference in Chicago

In a few weeks, the IAPD and IPRA will be hosting the 2016 Soaring to New Heights Conference in Chicago. Ancel Glink attorneys will be speaking at 13 sessions at the conference, on a wide variety of legal topics of interest to park districts and departments. 

Please come find us at the following sessions:

Session Number:                            110
Presentation Title:                          Legal/Legislative Part I
Presenter(s):                                    Rob Bush, Jason Anselment
Presentation Date:                         1/29/2016
Presentation Time:                         8:15AM – 9:30AM
Location:                                         Columbus KL, East Tower, Gold Level

Session Number:                            117
Presentation Title:                          Practices & Procedures for Effective Board Meetings
Presenter(s):                                    Rob Bush and Scott Puma
Presentation Date:                         1/30/2016
Presentation Time:                         12:30 PM - 1:45 PM
Location:                                         Columbus IJ, East Tower, Gold Level

Session Number:                            118
Presentation Title:                          Park Board Wars - The Next Round
Presenter(s):                                    Rob Bush and Scott Puma
Presentation Date:                          1/30/2016
Presentation Time:                         10:15 AM - 11:30 AM
Location:                                         Columbus IJ, East Tower, Gold Level

Session Number:                            119
Presentation Title:                         What Commissioners Need to Know About Employment Litigation
Presenter(s):                                    Thomas DiCianni, Lucy Bednarek
Presentation Date:                         1/30/2016
Presentation Time:                         12:30 PM – 1:45 PM
Location:                                         Grand Suite 5, East Tower, Gold Level

Session Number:                            120
Presentation Title:                          Couples Therapy - Intergovernmental Cooperation
Presenter(s):                                    Derke Price and Adam Simon
Presentation Date:                         1/29/2016
Presentation Time:                         9:45 AM - 11:00 AM
Location:                                         Roosevelt, East Tower, Bronze Level

Session Number:                             121
Presentation Title:                          Director Contracts – Hiring and Exiting Contracts
Presenter(s):                                    Keri-Lyn Krafthefer, Robert Porter
Presentation Date:                         1/30/2016
Presentation Time:                         10:15 AM – 11:30AM
Location:                                         Columbus AB, East Tower, Gold Level

Presentation Number:                   122
Presentation Title:                         Park District Use of Social Media
Presenter:                                         Julie Tappendorf
Presentation Date:                         January 29, 2016
Presentation Time:                         9:45 AM – 11:00 AM
Location:                                         Columbus EF, East Tower, Gold Level                      

Session Number:                            123
Presentation Title:                         Your Employees Are On Social Media 
Presenter(s):                                   Julie Tappendorf
Topic Track:                                   Governance/Legal
Presentation Date:                         1/29/2016
Presentation Time:                         3:30 PM - 4:45 PM
Location:                                          Columbus CD, East Tower, Gold Level      

Session Number:                            124
Presentation Title:                         Dealing with Bullying in Agency Programs
Presenter(s):                                   Darcy Proctor and Erin Baker
Topic Track:                                  Governance/Legal
Presentation Date:                         1/30/2016
Presentation Time:                        10:15 AM - 11:30 AM
Location:                                         Columbus KL, East Tower, Gold Level

Session Number:                            125
Presentation Title:                         Consolidation of Illinois Public Entities: Be Proactive
Presenter(s):                                   Keri-Lyn Krafthefer and Jim Rock
Topic Track:                                  Governance/Legal
Presentation Date:                         1/30/2016
Presentation Time:                        12:30 PM - 1:45 PM
Location:                                         Columbus AB, East Tower, Gold Level

Session Number:                            126
Presentation Title:                         Tort Immunity - Tips for Reducing Liability Exposure
Presenter(s):                                   Tom DiCianni and Lucy Bednarek
Presentation Date:                         1/30/2016
Presentation Time:                         2:00PM – 3:15PM
Location:                                         Grand Suite 5, East Tower, Gold Level

Session Number                              220
Presentation Title:                          Storm Water Management Issues
Presenter (s):                                   Derke Price, Brent Denzin
Presentation Date:                          January 29, 2016
Presentation Time:                         8:15 AM – 9:30 AM
Location:                                         Michigan C, East Tower, Bronze Level

Session Number                              321
Presentation Title:                          Dealing with Mandatory Criminal Background Checks
Presenter (s):                                   Robert McCabe, Greg Jones
Presentation Date:                          January 30, 2016
Presentation Time:                         3:30 PM – 4:45 PM
Location:                                         Michigan C, East Tower, Bronze Level

Session Number:                             322
Presentation Title:                          The Rapidly Evolving Law of Employee Protected Activities
Presenter(s):                                    Robert McCabe, Elizabeth Barton
Presentation Date:                          January 30, 2016
Presentation Time:                         2:00 PM – 3:15 PM
Location:                                        Michigan C, East Tower, Bronze Level

Thursday, January 7, 2016

Attorneys' Fees Awarded Under FOIA Even Where Public Body Voluntarily Turns Over Records

We have reported previously on court cases that have interpreted the attorneys' fee provision in the FOIA statute for prevailing parties. In 2012, the Second District Appellate Court interpreted that provision in FOIA to require a public body to pay attorneys fees to a plaintiff only where the plaintiff prevailed in court - in other words, the court required nothing less than "court-ordered relief" in order for a party to obtain an attorneys fee award.  In 2014, the First District Appellate Court disagreed with the Second District's interpretation, finding that even where the public body voluntarily turns over the records to the plaintiff, the public body could still be responsible for the plaintiff's attorneys fees.  

As we noted in our blog post about these cases, this later ruling is a troubling one because it appears to impose a policy that punishes a public body even where it does the right thing - i.e., turns over records during litigation. We urged legislative action to clarify this issue, but unfortunately no action has been taken.  

Just last week, the Fifth District Appellate Court adopted the First District's interpretation, finding a public body responsible for the plaintiff's attorneys fees even where the public body turned over the records while litigation was pending.  Perdue v. Village of Tower Hill.  In this case, the appellate court held that no court order is required  for a plaintiff to prevail in a FOIA suit. Instead, a plaintiff may be entitled to attorneys' fees if the requester obtains the records after filing suit even without the court ordering the release. 

One interesting distinction between this case and the First District case is that the trial court in Perdue had awarded only about one-third of the requested attorneys' fees. The appellate court upheld this fee award as "reasonable," based on the Village's early attempts to try to resolve certain issues with the plaintiff which could have reduced litigation costs. The court also noted that the plaintiff only obtained about half of the records he originally requested, also supporting a lesser attorney fee award.

Unfortunately, this ruling, as well as the earlier First District holding, do little to encourage a public body to voluntarily release records after a complaint has been filed. 

Post Authored by Julie Tappendorf

Wednesday, January 6, 2016

PAC Finds State Agency in Violation of FOIA

Just a few days before the end of the year, the Public Access Counselor issued its 15th binding opinion for 2015. 

In  PAC Op. 15-015, the PAC found in favor of the public body - JUST KIDDING!  The PAC found the Governor's Office of Management and Budget, a state agency, in violation of FOIA when it denied the SEIU's request for a copy of a PowerPoint presentation that described budget policy. 

The GOMB had denied the request based on section 7(1)(f) of FOIA, claiming it was a record "in which opinions are expressed, or policies or actions are formulated." The GOMB explained that the slides provided recommendations to the hired analysts on how best to go about their vital role of gathering and analyzing budget information. The PAC rejected these arguments, finding that the slides were more in the nature of general policy considerations and did not reflect the "give and take of any deliberative process" concerning the budget. As a result, the PAC ordered the GOMB to release the slides to the union. 

Although the opinion was not favorable for public bodies, it does provide some guidance on how the PAC interprets the deliberative process exemption in 7(1)(f) - very narrowly.

Post Authored by Julie Tappendorf

Tuesday, January 5, 2016

Task Force on Local Government Consolidation and Unfunded Mandates Issues Final Report

Early last year, Governor Rauner created a Task Force to consider the consolidation of Illinois’ many units of local government and the impact that unfunded mandates has had on them. The Task Force recently issued a report of over 400 pages with its findings and recommendations.

Not surprisingly, the Task Force found that state property taxes are high because of the sheer number of Illinois’ local governments.  The Task Force also found that unfunded mandates were “the other main driver of high property taxes,” noting that the unfunded mandates were primarily imposed by the State.  The most costly unfunded mandates related to public pensions, collective bargaining and interest arbitration, worker’s compensation, health insurance and prevailing wage laws.   The Task Force noted that unfunded mandates added to the burden on  local governments since 1992 and clearly outpaced inflation. 

The recommendations of the Task Force, briefly summarized, are as follows:

  1. Enact a four year moratorium on creating new local governments, unless the new government is a result of consolidating two or more existing local governments.
  2. Empower voters to consolidate or dissolve local governments via referendum.
  3. Expand DuPage County’s pilot consolidation program to all 102 counties.   This allows counties to dissolve or consolidate government units whose boards are appointed by the county.
  4. Allow all coterminous townships to consolidate with coterminous municipalities via referendum.
  5. Remove the limitation capping township size to 126 square miles.  This would allow townships to consolidate with one another.
  6. Allow counties to retain their existing form of government following a successful referendum to dissolve townships into the county.
  7. Hold taxpayers harmless from township consolidation.
  8. Allow counties with fewer than 15,000 parcels and $1 billion in equalized assessed valuation to dissolve all of the elected township assessors and multi-township assessment districts into one, newly elected county assessor position and office – by majority vote of the county board or via citizen-led referendum.
  9. Protect the Intergovernmental Cooperation Act.
  10. Provide the Illinois State Board of Education flexibility to incentivize outcomes of school district consolidation.
  11. Encourage state agencies to facilitate regional sharing of public equipment, facilities, training, resources and administrative functions.
  12. Allow merger of general township road and bridge districts that maintain less than 25 miles of road.
  13. Modernize newspaper public notice mandates.
  14. Repeal or reform prevailing wage.
  15. Provide third-party contracting mandate relief for school districts.
  16. Implement physical education mandate relief for school districts.
  17. Provide driver education mandate relief for school districts.
  18. Make collective bargaining permissive, instead of mandatory.
  19. Eliminate minimum manning from collective bargaining.
  20. Use the federal definition for “catastrophic injury” under the Public Employee Safety Benefits Act.
  21. Allow arbitrators to use existing financial parameters of local government as a primary consideration during interest arbitration.
  22. Require an annual state review of unfunded mandates on local government.
  23. Merge downstate and suburban public safety pension funds into a single pension investment authority, as amended.
  24. Pass a constitutional amendment on unfunded state mandates.
  25. Request the Governor to use his amendatory veto power to insert “if economically feasible” language into any language authorizing new unfunded mandates on local governments and school districts.
  26. Create an “economic feasibility exemption” for units of local government, school districts, community colleges and institutions of higher learning.
  27. Give control of employee retirement benefits packages back to local governments for new employees.
The next step in this process is that the Task Force will be dissolved pursuant to statute following the issuance of this report.  Task Force members will be invited to sponsor legislation to promote the Task Force’s recommendations.  For additional information regarding these recommendations and topics, please contact Keri-Lyn Krafthefer or Jim Rock. 

Post Authored by Keri-Lyn J. Krafthefer, Ancel Glink