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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, May 25, 2017

Upcoming Webcast on Fracking

The Planning and Law Division of the American Planning Association (APA) is hosting an upcoming webinar on fracking.  Details are below:

Webcast— Controlling the Local Impacts of Hydrofracking

June 7, 2017
1:00 p.m. – 2:30 p.m. EDT (noon to 1:30 pm Central Time)
CM 1.50; L 1.50
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Controlling the Local Impacts of Hydrofracking on Wednesday, June 7, 2017 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Hydrofracking will occur in many states, but federal and state agencies will not regulate many of the adverse local impacts of unconventional gas exploration. On the other hand, local governments will, and without expert guidance may be inclined to prohibit the practice. Some states will respond to local bans by stripping local governments of their authority.
It is vital, therefore, to develop best practices for controlling unregulated local impacts and to deliver them effectively to local governments and leaders. This program will outline the regulatory framework, identify local impacts (positive and negative), and conclude with an exploration of strategies—including both regulatory and non-regulatory actions—that local governments can use to address those impacts.
Speakers include Jessica Bacher, Executive Director of the Land Use Law Center at Pace Law School and Joshua Galperin, a clinical lecturer and director in law at Yale Law School and the Environmental Law and Policy Program Director at the Yale School of Forestry and Environmental Studies.

Wednesday, May 24, 2017

Court finds Minor Defects in Statements of Economic Interests Not Enough to Invalidate Candidacy

An Illinois appellate court recently upheld a circuit court ruling regarding the Election Code, finding that minor defects in a candidate’s statement of economic interest do not invalidate candidacy. Guerrero v. Municipal Officers Electoral Board of the Village of Franklin Park, 2017 IL App (1st) 170486 (May 16, 2017), 

Certain candidates seeking to run in the April 4, 2017 municipal election filed various paperwork to run for office, including statements of economic interest.  Objections were filed to these candidates nominating petitions alleging that the statements of economic interest were deficient because they failed to 1) state the municipality in which they sought office, 2) list their respective addresses, and 3) list the date.  The matter was first heard by the local electoral board, which agreed with the objectors and found that the candidate’s names should not appear on the ballot.  However, the circuit court disagreed with the electoral board, ordering that the candidates’ names appear on the ballot. 

The appellate court agreed with the circuit court, finding no defect in any of the nominating papers, only in the statements of economic interests. The court addressed the issue of whether the nominating papers were invalid because the disclosure statements failed to list the unit of government or the date. After a review of the record, the court found these errors to be minor and insufficient to invalidate the nominating papers.  The court found that these small defects in the statements of economic interests were outweighed by the public interest in ballot access.

While the court found these defects to be minor and refused to invalidate the candidacy, candidates should still be mindful to avoid even minor defects in their nominating papers.  

Post Authored by Erin Pell, Ancel Glink

Thursday, May 18, 2017

Illinois Supreme Court Rules IHSA Not Subject to FOIA

A couple of months ago, we reported that the Illinois Supreme Court was hearing oral arguments in the appeal by the Better Government Association (BGA) of a court decision that ruled against the BGA in a FOIA case. Specifically, the BGA had argued that the Illinois High School Association was a "public body" subject to FOIA. The circuit and appellate courts disagreed, finding that the IHSA was not subject to FOIA. 

Today, the Illinois Supreme Court issued its ruling upholding these rulings, agreeing that the IHSA is not subject to FOIA.  BGA v. IHSA, 2017 IL 121124. This ruling will provide helpful guidance to both public bodies and non-governmental organizations as to how the Illinois Supreme Court interprets "public body," and specifically what constitutes a "subsidiary body" and a "governmental function" under FOIA.

The Court applied the "test" set out in to earlier cases that interpreted "subsidiary body" for purposes of the Open Meetings Act. Hopf and Rockford Newspapers. That test applies multiple factors to determine the independence of the entity or organization from the governmental body. That test requires the court to look at three factors:

1.  whether the entity has a legal existence independent of government resolution
2.  the nature of the functions performed by the entity; 
3.  the extent to which the entity is publicly funded; and
4.  the degree of government control exerted over the entity.

Applying these factors, the Court found that the IHSA was not a subsidiary body - in fact, it pointed out that the BGA failed to identify any particular public body to which the IHSA was subsidiary.

The Court also rejected the BGA's argument that the IHSA performed a governmental function for public bodies that would make its records subject to FOIA. 

Post Authored by Julie Tappendorf

PAC Finds 3 Websites Are Not “News Media” Under FOIA

We reported last week on an advisory opinion from the Public Access Counselor of the Attorney General (PAC) that found a local blog to be a member of the “news media’ under FOIA.  A reader of this blog forwarded two other recent advisory opinions where the PAC found websites were not be members of the “news media." We wanted to share these advisory opinions because they further guidance to public bodies on the factors they should consider when determining if a blog or other website functions like a member of the “news media” for purposes of FOIA.

In 2016 PAC 4469, a municipality had deemed two websites to be recurrent requesters under FOIA. The websites claimed they were exempt from the "recurrent requester" provision of FOIA because they were news media since they regularly published findings from FOIA requests with commentary for residents. The websites argued they were one of the only ways for residents to obtain this type of news because there was no local newspaper in the area. The websites furnished copies of their postings, a copy of press credentials issued to their publisher, and documentation that their publisher had a degree in mass communications as evidence that they should be considered part of the “news media.”

The municipality rejected the websites' arguments after viewing the websites’ credentials and finding that they were not members of the “news media” under Section 2(f) of FOIA, so were not exempt from the definition of “recurrent requester” under Section 2(g) of FOIA.

The PAC held that, in order for a self-published website to be considered “news media” under FOIA, the website must do more than simply disseminate information, stating its reasoning as follows:

Merely disseminating information or criticism electronically through a website, or via e-mail, does not meet the statutory definition of “news media.” If it did, then any person who chose to post an opinion or comment on a matter of public interest electronically would become a news medium, which was clearly not the intent of the General Assembly when it enacted the exception.

The PAC also reiterated the rule that an individual or entity that self-publishes information on the internet must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content in order to be considered “news media” under FOIA.

The PAC noted that the websites’ content consisted of links to public records obtained through FOIA requests and court files, and links to other news publications.  The PAC also cited the fact that the websites did not post original content, nor did they credit particular authors for the material that was posted.  Due to the lack of editorial oversight and original content, the PAC found that the websites did not resemble traditional news outlets. The PAC also found that the press credentials obtained by the websites’ publisher did not demonstrate a connection with traditional news media, and that the publisher’s degree in mass communications did not, by itself, demonstrate that the publisher was a part of a news outlet.  As such, the PAC concluded that the websites were not members of the “news media” under FOIA and were not exempt from being designated as recurrent requester.

In 2015 PAC 34653, the PAC found a crime mapping website was also not a member of the “news media” under FOIA. The website had requested that a county sheriff’s office send the website crime data on a daily basis.  The county sheriff refused, but offered to send the website crime data on a monthly basis instead.  The website declined, and began submitting FOIA requests on a daily basis.  Because of these numerous requests, the sheriff’s office designated the website as a recurrent requester.  The website appealed to the PAC arguing that they were a member of the “news media” exempt from being classified as a recurrent requester.

The website claimed it provided highly localized crime news data from a variety of sources, that its data had been published in police blotter sections of print news papers, that it had over a million subscribers to its personalized crime alert email service, and that it regularly provided crime data to other media organizations. The website argued that it was news service because it provided free crime information to visitors, sold crime data to corporate media clients, and because they edited the data sent to its subscribers by classifying the crimes in the email updates.

The PAC once again stated that simply disseminating information electronically does not meet the definition of “news media,” and that there must be some adherence to recognized journalistic standards similar to that of traditional media.  The PAC found that the personalized crime updates that the website sent to its subscribers was evidence that the website existed for a commercial purpose, rather than existing to disseminate news of interest to the public at large. The PAC also found that the essential product of the website was the compilation of data, as opposed to original content compiled by journalists using recognized journalistic standards. The PAC held that the website was simply repackaging existing data for particular users based on their location, and therefore lacked the essential components necessary to be considered “news media” under FOIA.

Post Authored by Kurt Asprooth, Ancel Glink

Wednesday, May 17, 2017

Avoiding Legal Pitfalls in Hiring Interns

From Ancel Glink’s sister blog, The Workplace Report:  School is Out, Interns are In

School’s out for the summer, which means one thing for employers: it’s time to hire interns. What’s not to love about interns? Employers get students who are eager to prove themselves to work for free. All of the tedious tasks that no one wants to do can be dumped onto an intern.

There is, however, one thing not to love about hiring an intern: a lawsuit. Gone are the days where employers could basically hire an employee for free and call that person an intern. The Department of Labor has taken a more critical look at internship programs and has set relatively strict requirements in order for a worker to be labeled as an unpaid intern.

The Department of Labor has established the following 6 requirements for any unpaid internship program: 

  1. The internship must provide training that would be similar to what an intern would receive in an educational environment;
  2. The internship must be for the benefit of the intern;
  3. The intern must not displace a regular employee;
  4. The employer must derive no immediate advantage from the intern, and may actually have its operations impeded;
  5. The internship should be for a fixed duration, and the intern is not necessarily entitled to a job at the conclusion of the internship;
  6. Both the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these requirements are met, then the Fair Labor Standards Act, which requires employees to be paid minimum wage, is not triggered, and an intern does not need to be paid. 

As these six requirements show, internships must provide educational experiences and not just be a cheap source of labor for an employer. Therefore, employers may want to think twice about assigning interns menial tasks that can be performed by employees.

Before you hire an intern, you may want to contact an experienced attorney to review your internship program to ensure that it is in compliance with the law.

Original Post Authored by Matthew DiCianni, Ancel Glink

Thursday, May 11, 2017

Officers Challenge Police Department Ban on Tattoos

In 2015, the Chicago Police Department issued an order requiring all police officers on duty or otherwise "representing" the police department to cover all tattoos, either with clothing or cover-up tape. The department's stated rationale was to "promote uniformity and professionalism." 

Shortly after the order was issued, three officers sued the City, claiming that the department's order violated their right to free speech. The district court dismissed the lawsuit, and the officers appealed to the 7th Circuit Court of Appeals. While that appeal was pending, the City was also subject to a union grievance challenging the same department order. That grievance went to arbitration, and the arbitrator ruled that the order violated the collective bargaining agreement. As a result of the arbitrator's ruling, the City revoked the order.

The 7th Circuit issued its ruling yesterday, on the officers' appeal of its First Amendment challenge to the department order. The 7th Circuit did not rule on the substance of the appeal since the City had already revoked the challenged order. Instead, the Court remanded the case back to the district court with instructions to vacate its ruling in favor of the City. Medici v. City of Chicago (7th Cir., May 10, 2017).

Although the Court did not expressly rule on whether the tattoo ban violated the First Amendment, language in the decision about the broad scope of the ban, the officers' rights of free expression, as well as the instructions to the district court to vacate its ruling in favor of the City, suggest that the 7th Circuit may have ruled against the City had it reached the merits of this case.

Post Authored by Julie Tappendorf

Wednesday, May 10, 2017

City Residency Requirement for Public Safety Employees Does Not Violate Due Process

Milwaukee's City Charter previously required all city employees to live within city limits. But, in 2013, the Wisconsin state legislature passed a law prohibiting local governments from imposing residency requirements as a condition to employment. The statute contains an exception that allows local governments to require law enforcement, fire, and emergency personnel to live within 15 miles of the local government employer. When Milwaukee refused to follow the statute, the police association filed suit against the City, arguing it could not enforce the residency requirement, and the Wisconsin Supreme Court ruled in the association's favor.

After the City lost this first lawsuit, it amended its City Charter to conform to the state law and to require only public safety personnel to live within 15 miles of the City limits. The police association again filed suit against the City, this time to claim that the affected employees have a vested right to live outside of the City, and that the City's amendment to its Charter violated the employees due process rights.  This time, the court ruled against the police association, finding that the City Charter amendment simply followed state statute. The court rejected the claim that employees have a "vested right" to live wherever they want, and upheld the City Charter amendment requiring public safety personnel to live within 15 miles of the City limits.

Post Authored by Julie Tappendorf

Tuesday, May 9, 2017

How FOIA Treats News Media Differently

Yesterday, we reported on a PAC (Public Access Counselor) advisory opinion that determined that a local blog fell within the definition of "news media" under FOIA based on various factors applied by the PAC in the opinion. We mentioned yesterday that this designation is important to public bodies, because FOIA treats "news media" differently in a number of respects. Here are a few examples:

1.  Recurrent Requester.  

FOIA provides a mechanism by which a public body can classify an individual or organization as a "recurrent requester" based on the number of requests submitted by that person/organization within a particular time period. Specifically, if a requester has (1) submitted 50 or more FOIA requests in a 12 month period; or (2) 15 or more FOIA requests in a 30 day period; or (3) 7 or more FOIA requests within a 7 day period, the public body can notify the requester that he or she will be classified as a "recurrent requester." That allows the public body additional time to respond to the request, similar to a commercial request. That provision specifically exempts news media, however, to the extent that the principal purpose of the media's FOIA request is (i) to access and disseminate information concerning news and current or passing events; or (ii) for articles of opinion or features of interest to the public; or (iii) for the purpose of academic, scientific, or public research or education.

2.  Voluminous Request.  

FOIA also allows a public body to classify a particular FOIA request as a "voluminous request." A voluminous request is defined as (1) more than 5 individual requests for more than 5 categories of records or a combination of individual requests that total more than 5 categories in a 20 day period; or (2) requiring the compilation of more than 500 pages of records. A public body can notify the requester that his or her request will be treated as a voluminous request, giving the public body more time to respond and allowing the public body to charge for search time and electronic data.  Like the recurrent requester, however, news media are exempt from this provision of FOIA when the purpose of the media's request is as set forth above.

3.  Commercial Request.  

A commercial request is defined as a request for information that is to be used for "sale, resale, or solicitation or advertisement for sales or services." The news media are exempt from this definition when the purpose of the media's request is as set forth above.

4.  Fee Waiver or Reduction.

FOIA allows a requester to ask for a fee waiver or reduction. In its request for a fee waiver or reduction, the requester is required to show that the waiver or reduction is in the public interest, defined as "the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare of the legal rights of the general public and is not for the principal purpose of personal or commercial benefit."  FOIA states that the commercial benefit factor does not apply to news media, although the media must still show the "principal purpose" factor.  As discussed in a previous blog post, the decision whether to grant a fee waiver or reduction is entirely within the discretion of the public body. 

5.  Exemption for GIS and Similar Data.

FOIA contains an exemption for GIS data and other designs, drawings and research data obtained or produced by a public body when disclosure could reasonably be expected to produce private gain or public loss.  The GIS exemption does not apply to requests from the news media, however. 

Post Authored by Julie Tappendorf

Monday, May 8, 2017

PAC Finds Local Blog is a Member of the “News Media” Under FOIA

In another recent advisory opinion, the Public Access Counselor of the Illinois Attorney General's office (PAC) addressed the definition of “news media” under Section 2(f) of the Illinois Freedom of Information Act and whether it applied to a local blog.

In 2017 PAC 46249, a local blog was designated as a "recurrent requester" by a public body for submitting numerous FOIA requests. The blog appealed to the PAC, claiming that it was a member of the “news media” under FOIA.  Section 2(f) of FOIA defines “news media” as a “newspaper or other periodical issued at regular intervals whether in print or electronic format” or a “news service whether in print or electronic format.” Section 2(g) of FOIA exempts members of the news media from being deemed recurrent requesters by public bodies. 

The PAC began by interpreting the definition of “news media” under FOIA.  Noting that no Illinois court had addressed the issue, the PAC adopted the test set forth in other jurisdictions, which states as follows:

An individual or entity that self-publishes information on the Internet generally must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content similar to that of traditional media in order to be considered “news media.”

The public body claimed that the blog did not adhere to recognized journalistic standards, and argued that the personal commentary and editorials of the blog’s publisher were opinion-based content that was not analogous the editorial oversight and fact checking that are standards of traditional news sources.  In response, the blog submitted evidence that its content was focused on in-depth reports and commentary on local politics and governmental issues, that it had a sizeable readership, and that it had been cited in other traditional and non-traditional media outlets. The PAC found that the blog was regularly updated with posts on governmental issues in the region and elsewhere, and that the blog often included original content consisting of the opinion and commentary of the blog’s publisher. 

The PAC noted the public body's focus on the blog's alleged lack of editorial oversight and fact-checking.  However, the PAC held that whether a publication can be considered “news media” for the purposes of FOIA depends on the totality of the circumstances, and no single factor is dispositive.  The PAC found that the blog functioned much like a member of the traditional news media due to (1) its production of original content; (2) its range of reporting on issues of public interest; (3) its established presence on its own and in the traditional news media; and (4) the size and diversity of its readership. The PAC concluded that, based on the totality of the circumstances, the blog was a member of the “news media” under FOIA, and as a result, the public body had improperly designated the blog as a recurrent requester.

It is important to note that this opinion does not mean that any blog or social media site will automatically qualify as "news media." Instead, the determination of "news media" will depend on the facts and application of a variety of factors to determine whether the site functions like a member of the traditional news media, as discussed in the opinion. 

For public bodies, this is an important test because FOIA includes a variety of special rules for news media, including exempting them from the "recurrent requester" and "voluminous request" provisions of FOIA, among others. For more information on how FOIA treats news media differently, check out tomorrow's blog.

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, May 4, 2017

Revocation of Fraternity Status Results in Zoning Code Violation

In 2015, Dartmouth College in Hanover, New Hampshire revoked the "student organization" status of Alpha Delta, a fraternity most famous for having inspired the hit comedy film “Animal House,” after finding that at least 11 new pledge brothers’ buttocks were branded with the Alpha Delta Greek letters. 

Shortly after its student organization status was revoked by the College, the Town notified the fraternity that the continued use of the property as a residence following its “derecognition” by Dartmouth College was a violation of the Town’s zoning ordinance and that the continued occupancy of the property by at least 18 individuals must cease immediately. The Town of Hanover’s zoning ordinance allows a student residence within the institution district by special exception when the residence is “designed for and occupied by students and operated in conjunction with another institutional use, which may include individual living units with social rooms and kitchen facilities for any number of students.” However, Alpha Delta had never sought a special exception for the use of its property, instead relying on being grandfathered in when in 1976 the zoning ordinance was enacted. So, 

Alpha Delta appealed the zoning administrator’s decision to the ZBA, arguing that it was “grandfathered” from the special exception requirement. However, following a hearing, the ZBA ruled that Alpha Delta failed to provide any proof that it was lawfully nonconforming.

The fraternity then appealed to the courts. The New Hampshire Superior and Supreme Courts both agreed that in order to prove that the fraternity use was grandfathered, Alpha Delta needed to show that it operated its property in a manner that was not ‘in conjunction with another institutional use’ at the time the ‘in conjunction with’ requirement was adopted, in 1976.  The fraternity failed to do so. As a result, the court upheld the ZBA’s finding that upon the College’s revocation of its recognition of Alpha Delta as a student organization, Alpha Delta has no association with the College and was, therefore,no longer “operating in conjunction with” the College. Dartmouth Corp of Alpha Delta v Town of Hanover, No. 2016-0304 (N.H.April 11, 2017).

Authored by Megan Mack, Ancel Glink

Wednesday, May 3, 2017

PAC Finds in Favor of Library Board on OMA Complaint

One of our blog readers forwarded a copy of a recent advisory opinion issued by the Public Access Counselor of the Illinois Attorney General's office (PAC) ruling in favor of a public body. Specifically, the PAC found that a library board’s agenda item "sufficiently described" the general subject matter of the item being presented for approval to the board, in compliance with the Open Meetings Act.  2017 PAC 46368.

At one of its board meetings, the library board approved the hire of a consulting firm, based on an item on the agenda, stating, “Hire consultant - Action Required.” The agenda item immediately preceding that item stated, “Determine not to exceed amount for community engagement consultant - Action Required.” In her complaint to the PAC, the complainant alleged the board violated section 2.02(c) of the Open Meetings Act, which requires that the agenda state “the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.”  The complainant claimed that the agenda item regarding the consultant was too vague and broad to comply with the OMA.

In a surprising finding in favor of the board, the PAC found that although “Hire consultant - Action Required” did not give details of the proposed action, section 2.02 only required that the agenda set forth the general subject matter of the item.  Further, the PAC noted that the intent of section 2.02(c) is to provide notice of all matters for which the public body will take final action. The PAC found that together, the agenda item and the item preceding it sufficiently stated the general subject matter regarding the nature of the consultant’s work and provided advance notice that the board would take final action to determine the compensation and hire a community engagement consultant. 

The guidance provided in this advisory opinion is the type that is actually helpful to public bodies in complying with the OMA. It's unfortunate that this type of guidance is usually found only in advisory rather than binding opinions, particularly since the PAC does not make its advisory opinions readily available by posting advisory opinions on its website.

Post Authored by Erin Baker, Ancel Glink 

Monday, May 1, 2017

Hotel Tax Not Apply to Online Travel Company Fees

An Illinois appellate court recently ruled against the City of Chicago in its lawsuit against Expedia, Hotels.com, Hotwire, and other online travel search companies regarding collection of the City's hotel tax. City of Chicago v. Expedia, et al., 2017 IL App (1st) 153402.

In 1973, the City of Chicago adopted an ordinance requiring all owners, managers, or operators of hotel accommodations to collect from the occupant and pay to the City a hotel tax. The City subsequently tried to apply the hotel tax to the upcharge imposed by online travel companies such as Expedia, Hotels.com, and Hotwire, and filed a lawsuit when the companies failed to collect and pay the tax to the City. The defendants, all online travel companies, claimed that they were not liable for the tax because they were merely travel intermediaries, and not hotel owners, managers or operators. 

The circuit court had previously ruled in the City's favor that the companies were operators under the hotel tax ordinance and were liable for collecting and paying the taxes. However, on appeal, the appellate court reversed, and ruled against the City. The appellate court determined that the online travel company was not an owner, manager or operator of hotel accommodations under the City's ordinance. The court also held that the City was not entitled to additional tax revenue on the difference between what the hotel charged the online company for its inventory, and what the online company charged the occupant when the occupant booked the reservation online. Instead, the court held that this difference was more in the nature of a facilitation and service fee, and not "rent" for the hotel room that would be subject to the tax.

There's a decent chance the City of Chicago will appeal this decision.

Post Authored by Julie Tappendorf

Friday, April 28, 2017

Indiana Gov. Vetoes "Search Fee" for Public Records Requests

We write a lot about public records laws on this blog because the Illinois Freedom of Information Act affects so many aspects of government business and communications. Although not applicable to Illinois, it is interesting to see what our "neighbors" are doing in connection with their own state public records laws. 

Recently, the Indiana state legislature passed a bill that would allow units of local government to charge the public an hourly fee to search for records in response to a public records request. The fee can be no more than (1) the hourly rate of the person doing the search or (2) $20.00. The first two hours of search time must be provided at no charge, and then an hourly fee could be applied to any search in excess of two hours. The bill also required governments to provide electronic versions of documents, if requested.  Indiana House Bill 1523.

The bill was approved 63-27 in the Indiana House and 44-3 in the Indiana Senate. On Monday this week, Indiana Governor Holcomb vetoed the bill. It has been reported that although the Governor supported the provisions of the bill that dealt with the provision of electronic records, he opposed the search fee. 

Post Authored by Julie Tappendorf

Thursday, April 27, 2017

PAC Says Public Body Must Respond to FOIA

The Public Access Counselor of the Illinois Attorney General's office issued its second opinion for 2017 last week. PAC Op. 2017-002.  This opinion involved a FOIA request filed by a reporter seeking a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. The public body's FOIA officer told the PAC that she had forwarded the FOIA request to the public body's attorney and police department for response, but neither the attorney nor the police department responded or provided the records to the requester.

Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.  

So, public bodies must respond to FOIA requests. No new guidance in this binding opinion.

Post Authored by Julie Tappendorf

Wednesday, April 26, 2017

ABA Journal Article on Public Employee Use of Social Media

The ABA Journal, published by the American Bar Association, recently posted an article on its website about government workers' use of social media. The article is entitled "Public Employees, Private Speech: 1st Amendment Doesn't Always Protect Government Workers," and is authored by David L. Hudson, Jr. 

The article offers some guidance to government employers in disciplining their employees for social media conduct, and discusses some of the legal issues in enacting social media policies. The examples of employees being disciplined for off-duty social media activities used in the article are a good reminder to government workers that their off-duty social media activities could result in discipline. 

The author notes that although government workers have First Amendment and other rights to engage in social media speech, those rights do not extend to everything an employee might post on social media. The article sets out the general legal standard that applies to government employee speech, as follows:
For years, courts first asked whether a public employee spoke on a matter of public concern or importance. If the speech is merely a private grievance, a First Amendment claim fails, because the speech doesn’t carry much importance for the public at large. If the speech touches on matters of public concern, then the court balances the employee’s right to free speech against the employer’s interests in an efficient, disruption-free workplace.
To determine whether a public employee’s speech is too disruptive, a court asks whether it affects close working relationships, interferes with the employer’s normal operation of business or impairs discipline on the job.
Although there are only a handful of reported cases on government employee social media conduct, they do consistently apply this standard to determine whether an employer lawfully disciplined or terminated an employee for off-duty social media activities. 

You may remember that we reported on a 4th Circuit Court of Appeals opinion earlier this year that involved a disciplinary action brought against two police officers based on a police department social media policy that prohibited "[n]egative comments on the internal operations of the bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department..." The court of appeals struck down the police department policy as overly broad because it would encompass the type of protected speech that falls within the legal standard discussed above.  You can read our previous post about that case here.

The article on the ABA Journal's website can be accessed here: Public Employees, Private Speech: 1st Amendment Doesn't Always Protect Government Workers,

Post Authored by Julie Tappendorf

Tuesday, April 25, 2017

Court Upholds County Regulation of Employee Social Media Activities

From our sister blog, The Workplace Report with Ancel Glink: Employer May Regulate Employee Social Media Conduct

In one of the first cases of its kind in Illinois, the state appellate court found that a Cook County Sheriff’s order regulating employee conduct on social media platforms was not subject to bargaining. International Brotherhood of Teamsters v. Illinois Labor Relations Board, 2017 IL App (1st) 152993.

The “conduct order” in question regulated on and off duty conduct by employees and for the first time included language extending the rule to social media and networking sites. The order required employees to conduct themselves in a professional manner and not bring disrepute on the department. While a conduct rule had historically existed, the Sheriff’s Office amended it to include the following language:
Be aware that conduct on and off duty extends to electronic social media and networking sites and that all rules of conduct apply when engaging in any Internet activity.
The union filed an unfair labor practice charge against the Sheriff alleging that the new rule was overbroad and violated employee rights under the Illinois Labor Relations Act. According to the union, the order had a chilling effect on protected union activity. For instance, employees often vent about working conditions on social media platforms with other employees and this communication may be protected union activity, but the  union argued that an employee could be subject to discipline for legal activities under the new language.

The Local Labor Relations Board held that the conduct order was not substantively different from a 1998 order issued by the Sheriff regulating off duty conduct. The new order simply applied it to contemporary means of communication. Additionally the Board found that no employee had been disciplined under the rule for communications protected under the Labor Act.

The union appealed and the court agreed with the conclusion of the Local Labor Board but stated that this is a case of first impression as to whether any employer work rule violates the Labor Act because it is overbroad on its face. In interpreting the state law, the court looked to National Labor Relations Act for assistance. Under the NLRB decisions, a workplace rule that does not specifically prohibit protected communications may still violate the act if a reasonable employee believes protected communication is prohibited under the rule. However, in this case, the court said this is not a subjective test based on the employee’s interpretation. Instead, the court stated: “We will not conclude that a reasonable employee would read the rule to apply to such activity (protected activity) simply because the rule could be interpreted that way.”

Employers should consult with their attorney before implementing rules governing social media conduct. Even facially neutral rules may impinge on protected employee rights if not properly implemented.

Original Post Authored by Steve Mahrt, Ancel Glink

Monday, April 24, 2017

FOIA Fee Waiver is Discretionary

We have mentioned in the past that the Public Access Counselor's advisory (non-binding) opinions often offer public bodies and members of the public more insight on FOIA and OMA than the PAC's binding opinions. For example, the PAC recently issued an advisory opinion on how the fee waiver provision of FOIA is to be interpreted. 2017 PAC 47258.

A reporter for ABC7 News had filed a FOIA request seeking records pertaining to a public body's red light camera program. The public body compiled the records and informed the reporter that a fee of $30.60 would be owed for the records (that fee amount was calculated after providing the first 50 pages at no cost). The reporter disputed the charge by immediately filing a request for review with the PAC, claiming that the public body was obligated to waive its fee for the records. 

The public body argued that section 6(c) of FOIA provides discretion to the public body as to whether to grant a fee waiver or reduction, citing the following language: "[d]ocuments shall be furnished without charge or at a reduced charge, as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest." 5 ILCS 140/6(c) (emphasis added).

The PAC issued an advisory opinion finding in favor of the public body, stating as follows:
Under the plain language of section 6(c), FOIA does not require a public body to grant fee waivers; instead FOIA provides a public body the discretion to decide whether it will waive or reduce copying fees. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr 22787, issued July 17, 2013, at 2. Because the Public Access Counselor does not have authority to direct the City to grant ABC7 News' request for a fee waiver, we conclude that no further action is warranted as to this matter.
In sum, according to the PAC office of the Attorney General, the fee waiver/reduction provision of FOIA is discretionary, not mandatory, which is consistent with the express language of section 6(c).

Disclaimer: Ancel Glink represented the public body in this matter.

Post Authored by Julie Tappendorf

Friday, April 21, 2017

APA National Conference in NYC

For those of you who are planning to attend the 2017 American Planning Association (APA) National Planning Conference in NYC from May 4th to 9th, please stop by to say hi to Ancel Glink attorneys David Silverman and Dan Bolin who will be speaking at the following sessions:

Sunday, May 7, 9:30 a.m. - 11 a.m. 
Ordinances: Best Practices to Follow, Pitfalls to Avoid
David Silverman is participating in this session

Sunday, May 7, 4 p.m. - 5:15 p.m. 
ERR BNB - The Influence of a New Economy on Everything from Zoning to Market Analysis
David Silverman & Dan Bolin are participating in this session

Tuesday, May 9, 9:30 a.m. - 12:15 p.m. 
Real Estate Law for Planners
David Silverman is participating in this session

Post Authored by Julie Tappendorf

Thursday, April 20, 2017

Court Addresses Ban on Citizen Contact with Government Officials

A federal court recently decided an interesting case which could have occurred in any governmental body in the United States.  The case was decided by the Third Circuit Court of Appeals and is called Mirabella v. Villard.  

The Mirabella family petitioned their local township government for assistance in a dispute with neighbors and threatened to sue the government. The dispute revolved around a wetland owned by Montgomery Township and abutting the Mirabellas and neighboring property. The Mirabellas allege that their neighbors extended their backyards into the public wetlands by attempting to fence in the open space and place playground equipment there and landscaping it.  The Mirabellas complained to the Township which removed the fence and required the neighbors to move their playground equipment and initially required the neighbors to stop landscaping the open space.  The Mirabellas, however, alleged that their neighbors continued to cut and clear the open space and continued to complain about this, but the Township ultimately reversed course and gave the neighbors permission to mow the open space.

The Mirabellas viewed the Township’s response as overly permissive and environmentally destructive.  They notified the Township Board of Supervisors by email that they intended to sue their neighbors for encroachment and destruction of the open space.  They criticized the Township for not protecting its rights in the land.  They also indicated they would name the Township as a party in the lawsuit. 

On the same day the Mirabellas threatened litigation, the Chairperson of the Board of Supervisors wrote to the attorney for the Township and copied the Mirabellas.  The official claimed that such a lawsuit would be frivolous and wanted to let the parties know that the Township would seek sanctions if the case was filed.  The Mirabellas, both lawyers, responded that they felt that they had a strong case. Later that night, the Chairperson of the Board of Township Supervisors replied to the Mirabellas as follows:
Please direct all further communications to the Township attorney.  Please never contact me, the Board of Supervisors or the Township employees directly.  Do not call me at work, email me at home or speak to me in public or private.  The die is caste (sic).
The Mirabellas did attend one meeting of the Board of Supervisors at which they protested the destruction of the open space and expressed their “dismay and anger” over the emails. 

The Mirabellas subsequently filed suit, alleging that the Township officials had violated their First Amendment rights by retaliating against them and cutting off their right to petition the government for redress of grievances. The district court denied the Township officials' motions to dismiss and said that Township officials were not entitled to qualified immunity.  

The Township officials then appealed to the Third Circuit arguing they had done nothing wrong and were entitled to qualified immunity. 

The Third Circuit first held that the email to the Mirabellas barring them from communicating directly with their local government, for any reason and indefinitely, “was sufficient to deter a person of ordinary firmness from exercising constitutional rights.”  The Court stated that the “no contact” email was a direct violation of their First Amendment right to petition the government for redress of grievances, holding that citizens have the right to petition any department of government including the right to do so taken in anticipation of litigation.  The Court pointed out that governments do have the power to place certain reasonable “time, place or manner” restrictions on speech, but governments may not restrict speech “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”  The restrictions on speech must also “leave open ample alternate channels for communication of the information.”  The Court then pointed out that the government itself bears the burden to demonstrate that the restriction is constitutionally permissible, but the Township could not satisfy that burden because they imposed an absolute ban on contact.  

Although the Court agreed with the Mirabellas that the Township's ban on contact with Township officials was a constitutional violation, the Court nevertheless held that the Township officials were immune from liability because a reasonable government official may not have known that imposing a "no contact" rule was unconstitutional.
Now that the court has indicated that this is an area where private citizens may be able to sue their government, it puts officials on notice that even angry citizens have substantial constitutional rights.

Post Authored by Stewart Diamond, Ancel Glink

Wednesday, April 19, 2017

Tattoo Artist Alleged Sufficient First Amendment Claim

A tattoo artist, James Real, wanted to open a parlor in Long Beach, California.  However, Long Beach’s zoning ordinance restricted the location of tattoo parlors and required a conditional use permit. Real sued the City arguing that its zoning laws restricted his First Amendment rights.  The district court ruled in favor of the City and Real appealed.  

On appeal, the Ninth Circuit Court of Appeals reversed the lower court, and held that Real did have standing to challenge the zoning restrictions on tattoo parlors.  Real v. City of Long Beach (9th Cir. Mar. 29,2017). The Court found that Real sufficiently alleged that the ordinance impermissibly restricts an activity protected by the First Amendment and that there would be a creditable threat of prosecution if he opens the tattoo parlor without obtaining the required conditional use permit.  The Court held that he did not have to wait until he was denied a conditional use to challenge the ordinance.

In addition, the Court held that the City’s conditional use process gave government officials too much discretion over protected activity (expressive speech) and did not provide any procedural safeguards, which amounted to a prior restraint on speech.   

The Court remanded the case back to the district court for further proceedings on Real's claim that the City ordinance was an unlawful time, place, and manner restriction.

Post Authored by Amanda Riggs & Julie Tappendorf

Tuesday, April 18, 2017

Illinois House Introduces "Airline Passenger Protection Act"

Yesterday, Illinois HB 4034 was introduced. If enacted, it would create the Airline Passenger Protection Act, which would prohibit any state or municipal employee or contractor from involuntarily removing a ticketed passenger from an aircraft by force unless the following exists:

1. The passenger has committed a breach of the peace;
2. The passenger presents a danger to himself or herself or others; or
3.  A public emergency exists.

The Act also prohibits the state of Illinois and Illinois units of local government to make any travel arrangements with or do any business with any airline that has a policy allowing involuntary removal of a passenger from a plane to accommodate an employee who is traveling on a non-revenue ticket. 

The bill was just introduced, so there is no history on it yet. Since this bill would affect government police department activities, as well as government employee travel, we will keep an eye on it.

Post Authored by Julie Tappendorf

Monday, April 17, 2017

Court Ok's Prayer at School Board Meetings

A federal court of appeals recently held that student read invocations at school board meetings are allowed under a very limited exception to the Establishment Clause called the legislative prayer exception.  American Humanist Association v. Birdville Independent School District (5th Cir. Mar. 20, 2017).

From 1997 to 2015, the Birdville Independent School District (BISD) has allowed elementary or middle school students to deliver statements at the opening of each board meeting. In some cases, the students read poems or essays, but on occasion, a student read a Christian prayer.  In 2015, American Humanist Association (AHA) and a BISD alum Isaiah Smith, filed suit claiming the invocations violated the Establishment Clause of the First Amendment to the U.S. Constitution. The district court ruled in favor of the school district, finding that the legislative prayer exception applied.  AHA and Smith filed separate appeals.

The legislative prayer exception allows prayers to be given at legislative proceedings and town-board meetings. However, as a general rule, prayers in public schools did not fall under the exception. The issue before the court was whether a school board meeting is more like a legislative proceeding or a school activity.  In the court’s view, school board meetings (which took place away from school grounds, dealt with administrative issues, and did not involve students as mandatory deliberative participants) were more like legislative proceedings than school activities. As a result, the court of appeals agreed with the district court decision allowing student invocations to be read at school board meetings. 

Post Authored by Amanda Riggs & Julie Tappendorf

Friday, April 14, 2017

Surveillance of Employee Facebook Activities

From Ancel Glink's sister blog, The Workplace Report: NLRB: Facebook and Surveillance, and Concerted Activities, Oh My! 

In a recent decision from the National Labor Relations Board, an administrative law judge addressed whether a laid-off employee’s Facebook photos and comments, which were critical of her employer’s pay and workplace condition policies, could be used in the employer’s decision not to rehire the employee. 

Strain, a former sales employee at Natural Life, claimed the company engaged in unlawful surveillance by checking her Facebook page. A company manager (Guggia) had heard that Strain was posting “horrible things” about her on Facebook. Guggia, who was Facebook friends with Strain, looked and saw that Strain had made negative comments about the company and its owner.  Guggia specifically recalled Strain commenting that “she had something for their ass.” Strain made other comments in which she claimed that her employer was racist and stealing from her paycheck.  Based on those negative Facebook posts, Guggia chose not to rehire Strain, and Strain's complaint went to the NLRB.  

The case included a number of claims, including that the company  (1) engaged in unlawful surveillance of Strain's Facebook page; (2) unlawfully listened to employee phone calls; and (3) improperly terminated Strain and co-workers for engaging in protected concerted activities.

First, the administrative law judge dismissed Strain’s unlawful surveillance claim, finding that Guggia looked at Strain’s Facebook to determine what Strain was saying about her individually. Guggia’s action was not enough to establish that the company had engaged in surveillance of its employees in an effort to discover their protected concerted activities.

The case also included an allegation that the company unlawfully listened in and recorded phone calls between its employees. In contrast to Strain’s Facebook claim, the administrative law judge found that the company did engage in unlawful surveillance when it snooped through the phone calls since the employees were discussing taking legal action against the company. In his opinion, the administrative judge reminded the company that “[t]filing of an employment—related class or collection action relating to terms and conditions of employment is protected activity.”

Finally, the administrative law judge held that the company had improperly terminated Strain and several of her colleagues because they engaged in protected concerted activities. At a meeting prior to the employees’ discharges, Guggia made several comments about the employees’ conversations in regards to filing a lawsuit and their complaints about the terms and conditions of their employment. The company failed to set forth persuasive, lawful reasons for the terminations.  Strain, as well as several other employees, was awarded reinstatement and back pay due to the unlawful terminations.

This decision serves as a good reminder for what constitutes as unlawful surveillance of concerted activities under the National Labor Relations Act. Observing employees engaged in protected conduct in a manner that is “more than ordinary or casual,” can be considered coercive.  The decision also provides some further insight regarding the how the NLRB is addressing workplace-related comments published on various social media platforms.

Click here to read the entire decision.

Original Post Authored by Katie O'Grady, Ancel Glink

Thursday, April 13, 2017

Verification of Official Government Social Media Pages

I just returned from the third annual Government Social Media Conference (#GSMCON2017), where government officials and employees from across the country discuss new strategies for engaging their citizens and constituents. There were so many great sessions and I was pleased to participate in a session on legal issues with government use of social media. Some of the discussion at that session centered on strategies for dealing with impostor sites - i.e., Facebook or Twitter accounts that deliberately mislead the public into believing they are the official site. 

One strategy that any government site can implement very easily is to "verify" their page. Facebook, Twitter, and Instagram all offer verification  - you know an account is verified when you see the blue check mark. That check mark is not just for celebrities - these social media platforms offer verification for government entities. (Facebook was even offering to verify government pages on-site at the conference). 

If you are concerned about impostor sites or just want to make sure your visitors know they are on your "official" page, verification is a relatively painless process. Look out for the blue check mark.

Post Authored by Julie Tappendorf

Wednesday, April 12, 2017

Installation of New Municipal Elected Officials

Every two years, we receive a lot of questions about when newly elected municipal officials (city council and village board) take office. There is a statute that governs this, and it provides as follows:
   (65 ILCS 5/3.1-10-15)
    Sec. 3.1-10-15. Commencement of terms. The terms of elected municipal officers shall commence at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk of the regular municipal election at which the officers were elected, except as otherwise provided by ordinance fixing the date for inauguration of newly elected officers of a municipality. The ordinance shall not, however, fix the time for inauguration of newly elected officers later than the first regular or special meeting of the corporate authorities in the month of June following the election.
Under this statute, the general rule is that new elected municipal officers will be sworn in at the first board or council meeting after the county sends the certified election results to the municipality. While timing for each county's certification process will be different, historically, most municipalities receive results in mid to late April, and install their new members at their first meeting in May.

Don't forget, however, to check your own local ordinance or code to see if your municipality has adopted a local rule on when new members should be installed. That ordinance will control unless it establishes an installation date later than the first meeting in June. So, for example, if you receive certified election results on April 20th, and your ordinance sets the installation of new members at the 2nd meeting in May, then that ordinance controls and new members should be sworn in at the second meeting in May and not the first meeting.

Because this varies from municipality to municipality, if you have any questions, you should run them by your village or city attorney.

Post Authored by Julie Tappendorf

Tuesday, April 11, 2017

Court Rules that 7(1)(a) FOIA Exemption Does Not Apply to Municipal Ordinances

A recent Illinois Appellate Court case found that municipal ordinances are not considered “state law” under Section 7(1)(a) of FOIA. 

In City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870 (March 31, 2017), the City of Chicago sent a subpoena to Janssen to obtain documents relating to a false claims investigation regarding Janssen’s marking of opioids.  Janssen did not comply with the subpoena, and the City filed a lawsuit. The parties entered into a protective order, which provided that the information produced by Janssen could only be used in accordance with Section 1-22-050 of the False Claims Chapter of the Chicago Municipal Code (“ordinance”), or by court order.  The protective order further provided that information produced by Janssen could be confidential and that Janssen considered it to be exempt from disclosure under FOIA. 

The City then withdrew its Petition to Enforce the subpoena and Janssen produced over 100,000 pages of documents to the City, many of which were marked “confidential.” The City filed  another suit against Janssen alleging violations of the ordinance. USA Today then issued a FOIA to the City to obtain copies of documents in support of the claims against Janssen. The City notified Janssen of USA Today’s FOIA request and stated that it believed three documents were responsive. 

Janssen then filed a motion to enforce the protective order, arguing: 1) that the order required the City to deny third party request brought under FOIA, 2) that the documents were exempt from disclosure under Section 7(1)(a) of FOIA as the ordinance qualified as “state law,” which was prohibited from disclosure, and 3) that the documents were exempt under 7(1)(g) of FOIA as production of confidential information would make it more difficult for a public body to obtain similar information in the future, creating a “chilling effect.”  The circuit court denied Janssen’s Motion, and Janssen appealed to the Illinois appellate court.

On appeal, the court affirmed.  The court first evaluated Section 7(1)(a) of FOIA, which exempts information specifically prohibited from disclosure by federal or state law.  Janssen argued that the ordinance qualified as state law, and was expressly prohibited from disclosure under 7(1)(a).  Janssen argued that as a home rule unit, the City has the same power as the state to legislate FOIA exemptions. The court found that the phrase “state law” must be given its plain and ordinary meaning, which excludes municipal ordinances. Since “state law” does not include municipal ordinances, the court held that the documents were not exempt under 7(1)(a).

The court next analyzed Janssen’s 7(1)(g) argument, that the disclosure of its documents would have a “chilling effect” on other organizations complying with a subpoena issued by the City.  The court similarly rejected this argument, finding that Janssen failed to assert why the disclosure of information would cause it competitive harm.  

Post Authored by Erin Baker, Ancel Glink

Monday, April 10, 2017

2017 Newly Elected Officials Handbook Available

Every two years, Ancel Glink publishes a Handbook for Newly Elected Officials to coincide with the election of many Illinois local government officials (which happens in odd years). We just released our 2017 edition of this Handbook, which you can download for free from Ancel Glink's website in the Resource Center

This Handbook provides timely and timeless information about a number of topics of interest to elected officials. The following is a list of the articles included in the handbook:
  • The Open Meetings Act: Don’t Leave Home Without It
  • The Freedom of Information Act: A Primary Duty of Public Bodies
  • The Rules Are the Game
  • Taxing and Spending
  • Understanding and Avoiding Conflicts of Interest
  • The Gift Ban Act and Prohibited Political Activities
  • You’re The Boss Now! Labor and Employment Issues
  • An Outline of the Governmental Construction Process
  • Suing and Being Sued
  • How to Avoid Being Sued
  • Working Together—The Intergovernmental Cooperation Act
  • Technology: What a Tangled Web-Page We Weave...
  • Cooperating on Economic Development
  • ANCEL GLINK’S Top Ten List
  • 25 Challenges and Opportunities for Experienced and New Mayors, 
  • 10 Lessons Learned by a Former Elected Official
  • The Magic Governmental Mix
  • The Ancel Glink Library
  • How to Choose a Governmental Attorney
  • Representing Smaller Governments
  • Distressed Developments; Addressing the Impacts and Recognizing the Opportunities
  • Land Banking and Nuisance Abatement Strategies: Municipal Tools for Revitalizing Abandoned Properties