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Friday, September 22, 2017

Court Upholds Chicago's "Anti-Puppy Mill" Ordinance

The City of Chicago adopted an ordinance that restricts the sale of dogs, cats, and rabbits at pet stores. Specifically, the ordinance requires pet stores to obtain their animals only from animal control or care centers, kennels operated by local, state or federal governments, or humane societies. The ordinance, commonly referred to as the "anti-puppy mill" ordinance was challenged by two pet stores and a Missouri dog breeder. The complaint argued that the ordinance was unconstitutional under both the state constitution (as exceeding the City's home rule powers) and the U.S. Constitution's Commerce clause.  
The case made its way to the Seventh Circuit Court of Appeals, which issued its opinion yesterday upholding the ordinance. First, the Court determined that the City's home rule powers allowed it to regulate animal control and welfare and was not preempted by state law. Second, the ordinance did not violate the U.S. Constitution's Commerce Clause because it did not discriminate against interstate commerce since all large-scale breeders, whether based in Illinois or elsewhere, were treated the same under the ordinance.
Post Authored by Julie Tappendorf

Thursday, September 21, 2017

Court Finds Copyrighted Data Exempt Under FOIA

An Illinois appellate court recently held that real property assessment data was exempt from disclosure under FOIA due to copyright protections. In Garlick v. Naperville Township, the requester sought an electronic copy of the Township’s real property database, in its native file format.  The Township did not provide the copy, but directed the requester to its website where he could search for the records by parcel. The requester sued, arguing that the website did not provide him reasonable access to the data. 

The trial court ruled in favor of the Township, and Garlick appealed. On appeal, the court also ruled in favor of the Township, ruling that the requested data was exempt under FOIA because the Trade Secrets Act and federal copyright laws prevented disclosure of the data in its native format because the software vendor did not consent to the disclosure. The court also noted that the Township had a contractual duty not to disclose this information under the license agreement.    

It is important for public entities to be aware of these situations where copyright or contractual obligations may prevent disclosure of records under FOIA.

Post Authored by Erin Pell, Ancel Glink

Wednesday, September 20, 2017

Illinois Municipal League Conference 2017

Later this week, the IML's Annual Conference will take place and Ancel Glink attorneys will present a variety of engaging and educational sessions.

Be sure to stop by:

Total Request Live: Night Meeting Edition
Friday, September 22 at 1:00 pm
Ancel Glink Presenters: Stewart Diamond, Keri-Lyn Krafthefer, Julie Tappendorf, Dan Bolin & Kurt Asprooth

Fight Blight Right: Smart Strategies for Nuisance Structures
Friday, September 22 at 3:30 pm
Ancel Glink Presenters:  Dan Bolin & Mark Heinle

What Every Clerk Needs to Know About Employment Issues
Saturday, September 23 at 9:15 am
Ancel Glink Presenters: Keri-Lyn Krafthefer

Public-Private Partnerships - How to Determine if P3 is Right for Your Community

Saturday, September 23 at 10:30 am
Ancel Glink Presenters: Derke Price

Stop by and say hello if you are attending the conference!

Tuesday, September 19, 2017

Federal Judge in Chicago Blocks New Requirements For Grants Affecting Sanctuary Cities

A federal judge in Chicago recently blocked the U.S. Justice Department from denying grant funds to “sanctuary cities” – cities that have declined to cooperate with federal immigration enforcement – finding the Department had exceeded its legal authority by requiring cities to either comply with immigration officials or face losing public safety grant funds. 

Attorney General Jeff Sessions imposed new requirements on the Justice Department’s Byrne Justice Assistance Grant program. That program funds state and local law enforcement initiatives. The new requirements would have allowed federal immigration authorities access to local jails. They would also require cities to provide 48 hours notice before they release an immigrant who was in the country illegally in order to allow time for them to be apprehended by federal immigration authorities. Any cities that refused to comply would have had their Byrne funds withheld.

Chicago Mayor Rahm Emanuel filed suit arguing that Chicago would not “be blackmailed” into changing its values as a “sanctuary city” that is welcoming of immigrants.  Enacting the Justice Department requirements would, claimed Emanuel, “drive a wedge of distrust” between the immigrant community and police forces.  Prior to the new requirements, Chicago had requested $1.5 million in Byrne grant funds for next year, all of which would presumably be withheld due to its status as a “sanctuary city.”

Finding that Congress provided no authorization for the Attorney General to add the new conditions to the Byrne program, the federal judge placed a temporary nationwide injunction on the new requirements in order to prevent the Justice Department from withholding grant money until there is a final determination in the suit. 

Post Authored by Jessi DeWalt, Ancel Glink

Monday, September 18, 2017

New Disclosure Law Applies to Park District Volunteers

The Illinois General Assembly recently enacted P.A. 100-0472. The Act amends the Park District Code to mandate that park districts require volunteers to submit an application prior to beginning any work as a volunteer for the park district. That application must include a question whether the volunteer has been convicted of or found to be a child sex offender. The law also prohibits a park district from knowingly hiring a volunteer who has been convicted of or found to be a child sex offender. Finally, the law requires any current volunteer to disclose any such conviction to the park district.
Post Authored by Julie Tappendorf

Wednesday, September 13, 2017

New Law Impacts Townships' Ability to Accumulate Funds

Townships need to be aware of Illinois House Bill 1896, recently enacted as P.A. 100-474. This new law, which became effective on September 8, 2017,  amended the Township Code to include a new section that specifies that townships may not accumulate funds (excluding the township’s capital fund), that exceed 2.5 times the township’s annual expenditures from the previous three fiscal years. While this law does not impact accumulations in townships’ corporate funds, it will impact all other funds, including general assistance, IMRF, etc. 

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

Tuesday, September 12, 2017

Eighth Circuit Dismisses Free Speech Lawsuit Regarding Activity in City Arena

Ball was arrested and cited by the City for trespassing while passing out leaflets in the Plaza Area of the Pinnacle Bank Arena. The City claimed he was violating the Arena’s Exterior Access and Use Policy.  Ball sued, claiming the City violated his First Amendment free speech rights. The district court dismissed the case, and Ball appealed to the Eighth Circuit Court of Appeals, which also ruled in favor of the City.  Ball v. City of Lincoln, Nebraska

Ball argued that the Plaza Area was a public forum for purposes of free speech under the First Amendment. The Court applied three factors to determine whether the Plaza Area was a public or nonpublic forum:

(1) the Plaza Area’s physical characteristics;
(2) the use, function, and purpose of the Plaza Area; and
(3) the City’s intent in constructing the space.

The Court noted that a public forum is public property that is available for public expression, citing streets, sidewalks, and public parks as examples, as distinguished from a nonpublic forum, which are government properties that are not “by tradition or designation a forum for expressive activities by the public.” A restriction on expressive activity in a nonpublic forum only needs to be reasonable to be constitutional.

The Court addressed the first factor by looking at the physical characteristics of the surroundings, such as unique sidewalks that distinguished the Plaza Area from adjacent public sidewalks. As to the second factor, the Court noted that the Plaza Area functioned as a venue for commercial use by Arena tenants and was meant to facilitate safe and orderly access to the Arena, stating “that members of the public are permitted to come and go at will does not transform the Plaza Area into a public forum.” 

The Court addressed the third factor by considering the City’s intent, purpose, and policy to determine whether the Plaza Area was a public forum. The Court found no evidence the City intended it to be open to the public for expressive activities and that the purpose of the Plaza Area was to protect the contractual rights of the tenants and allow for crowd management. Considering these factors, the Court determined that the Plaza Area was a nonpublic forum.  

The Court next addressed whether the Arena’s Exterior Access and Use Policy that restricted speech in the Plaza Area was permissible. The Court noted that a restriction on speech in a nonpublic forum is permissible if it is viewpoint neutral and reasonable in light of the purpose which the forum at issue serves.  In this case, the Court found that the policy was viewpoint neutral on its face because it broadly prohibited specific expressive activity without regard to the content of the speech. 

Post Authored by Jessica DeWitt, Ancel Glink

Monday, September 11, 2017

Library Law Updates

2 new laws amend certain provisions relating to Illinois libraries, as follows:

Advisory Referenda

P.A. 100-0462 amends the Illinois Local Library Act and the Public Library District Act to add language in those Acts to authorize members of the respective library boards to place an advisory question (referendum) on the ballot. The authorization to place an advisory question on the ballot must be approved by vote of the majority of the library board members. 

If approved by a local library, the question would be placed on the ballot at the next regularly scheduled election in the city, village, incorporated, town, or township in which the public library is located. 

If approved by a library district, the question would be placed on the ballot at the next regularly scheduled election in the district.

Local Library Reporting

The Illinois Local Library Act requires the library to submit a report to the city, town, village, or township (as the case may be) within 60 days after the end of the fiscal year. That report must contain information about library revenues and expenditures, property, and various other information. P.A. 100-0245 modifies the reporting requirements to change the time-frame for a public library's submission of a statement of its financial requirements to be included in the municipality's appropriation and tax levy ordinances to require submission no less than 60 days prior to when the municipal tax levy ordinance must be certified.  

Post Authored by Julie Tappendorf

Friday, September 8, 2017

Judge Finds Incompatibility of Office at Parkland Community College

A trial court judge recently found that an associate professor at Parkland Community College could not also serve as a trustee on the Parkland College Board. Harden was an associate professor at Parkland when she decided to run for a position on the Board of Trustees after the Board decided not to rehire several faculty members. After being sworn in, Parkland’s attorney informed Harden that she could not simultaneously serve as a faculty member and on the Board of Trustees.  

The issue was whether Harden could legally serve as both a trustee on the Parkland Community College Board and an employee of Parkland Community College. The judge determined that she could not, finding that an incompatibility of office existed between the two positions. One of the standards for determining whether there is an incompatibility between two positions is whether one position (the Board of Parkland Community College) has extensive responsibilities over the operation of the other position (an employee of Parkland Community College). 

Interestingly, the judge gave Harden the option of remaining on the Board or continuing as an associate professor. Previous courts have found that where an incompatibility exists, acceptance of the second position is ipso facto a resignation from the first position, meaning Harden would have resigned her teaching post when she was sworn in as trustee. 

Post Authored by Jessica DeWalt, Ancel Glink

Thursday, September 7, 2017

Town Ordinance Unconstitutional as Restriction on Commercial Speech

On August 22, 2017, the Second Circuit Court of Appeals held that a Town’s Ordinance regulating solicitation by day laborers violated the First Amendment as a content-based restriction on speech. You can read the case here.

In 2009, the Town of Oyster Bay in Long Island enacted an Ordinance prohibiting anyone standing on the sidewalk to solicit employment and barring drivers from stopping to solicit or hire employment. The Town’s stated reason behind this Ordinance was to make sidewalks and streets safer for both pedestrians and traffic, creating a legitimate town interest for enactment. However, the Second Circuit noted in its decision that the record indicated the actual reason for the enactment of such an Ordinance was to regulate day laborers who are seeking employment in Oyster Bay. The court also highlighted the fact day laborers have made their living soliciting work in the Town for years, and the Ordinance passed in 2009 was an attempt to remove them from the sidewalks where they would look for their employment.

Using the test from Central Hudson, the court looked at 4 factors: 

1.  whether the Ordinance restricts speech that concerns lawful activity, 
2.  whether the Town’s asserted interest is substantial, 
3.  whether the Ordinance directly advances that interest, and 
4.  whether the Ordinance is more extensive than necessary to serve that interest. 

The Court of Appeals primarily focused on the last prong of this test. In order to pass this step, the court held that the Ordinance would have to be narrowly drawn to further the Town’s interests. The court concluded that although the stated purpose of the Ordinance was that of legitimate public interest, there were several other ways an individual could solicit employment without causing a threat to public safety. Also, because the Ordinance would apply to other lawful activities, such as students soliciting cars for a high school car wash fundraiser, it restricted a far greater variety of constitutionally protected speech than that posing a threat to both pedestrian and traffic safety.

The court also determined that the Ordinance was an overbroad restriction on lawful commercial speech because it would require Town officials to monitor and evaluate speech made by those who are stopping drivers to determine whether the content of such was permissible or not. The court noted it would not apply to the most common forms of solicitation, that being stopping of vehicles on public rights of way for reasons such as as hailing a cab or a bus. Rather, the Town’s clear principal interest was to suppress speech of a particular type, and not to advance the interests in traffic and pedestrian safety. 

Post Authored by Katherine Takiguchi & Julie Tappendorf, Ancel Glink

Wednesday, September 6, 2017

New Laws Relating to Government Contracts

2 new Illinois laws were recently enacted to modify statutory provisions relating to public contracting requirements and procedures, as summarized below:

Prevailing Wage Amendment

P.A. 100-0154 amends the Prevailing Wage Act to give public bodies the option to post the prevailing rate of wages on their website, rather than publish the prevailing rate of wages in the newspaper. The statute allows the alternative "publication" if (1) the Department of Labor ascertains the prevailing rate of wages for the public body and (2) the public body posts on its website a notice of its prevailing wage determination with a hyperlink to the prevailing wage schedule for that locality that is published on the Department of Labor's website.

Competitive Bidding Amendments

The Illinois Municipal Code requires municipalities to competitively bid any public project if the expense will exceed $20,000.  P.A. 100-0338 increases that amount to $25,000. 

The Public Act makes similar changes to the Illinois Local Library Act and the Public Library District Act to increase the public improvement expenses to trigger competitive bidding from $20,000 to $25,000.  

Post Authored by Julie Tappendorf

Tuesday, September 5, 2017

Municipal Minute Turns 6!

It has been six years since we published our first post on Municipal Minute. I can't believe we've been around that long! 

Our first post was titled Tweeting into Trouble, and was published on September 3, 2011 - a couple of days before Labor Day.  Since then, we have published more than 1,200 articles on Municipal Minute informing our readers about new legislation, court cases, and trending topics of interest to local government officials and employees. Our most popular (read and shared) articles generally fall into two categories: (1) employees behaving badly on social media and (2) FOIA and OMA opinions issued by the Illinois Public Access Counselor. That is no coincidence as the author has a key interest interest in both topics, which means our readers are going to hear about these issues!

We are happy and proud our little local government blog has been read, shared, tweeted, liked, and forwarded so many times since that first post went live in 2011. We hope you stick around for another six years because it doesn't look like we are going to run out of things to talk about any time soon.

Thank you,
Julie Tappendorf
Ancel Glink

Friday, September 1, 2017

Upcoming Webinar: Solar Planning

On September 11, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Solar Planning 101: Opportunities & Obstacles.”  Attendees will learn how to integrate solar energy into planning, zoning, and historic preservation processes from two law professors who specialize in these issues. The program will highlight Hartford, Connecticut, a DOE SolSmart Gold community, which has dramatically reduced barriers to solar and serves as a model for other cities.

Here are the details:

Monday, September 11, 2017, 11:00 a.m. – 12:30 p.m. Eastern (10:00 a.m. - 11:30 a.m. Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

You can learn more about the webinar and register here

Thursday, August 31, 2017

New Law on Limited Township Consolidation

Governor Rauner recently signed Senate Bill 3, known as the Local Government Consolidation bill, into law as P.A. 100-0107. It amends the Township Code to allow for the consolidation and dissolution of townships through three different methods:

1. Two or more adjacent townships may, by resolution of the townships’ boards, propose consolidation by referendum of voters of each affected township into either a new township or into one of the existing townships.

2. A township may be dissolved and absorbed by two or more townships with which it shares borders. If the township boards of the dissolving and absorbing townships adopt a resolution to propose a referendum, voters of each affected township vote on the referendum at the next general election.

3. Townships that are coterminous with a municipality may be dissolved into the municipality by resolution of the township and  municipal boards and referendum of the voters of the township and municipality.

All of these methods require the assent of the township board to proceed. This will prevent a situation where the electors try to dissolve a township against the will of the township officials. 

Senate Bill 3 also removes the 126 square mile cap on the size of townships. 

An amendment filed shortly before the bill passed through the Senate removed a provision that tied this bill to the rest of the Senate’s Grand Bargain bill package. As a result, Senate Bill 3 will take effect on January 1, 2018, regardless of whether the other Grand Bargain bills become law.

You can read Senate Bill 3 here.

Post Authored by Jessica DeWalt, Ancel Glink

Wednesday, August 30, 2017

More Examples of Employees Fired Because of Social Media

Readers of this blog will not be surprised to hear that employers are not hesitating to terminate employees for their personal social media activities. In previous posts, we have told you about firefighters, police officers, child care workers, teachers, and other employees whose jobs were terminated for social media posts they made on their personal time and on personal accounts.  

Recent developments in Charlottesville and Texas have resulted in a number of new incidents of employees being terminated for personal social media activities, including the following:

A University of Tampa professor was recently fired for posting the following on Twitter:
I don't believe in instant Karma but this kinda feels like it for Texas. Hopefully this will help them realize the GOP doesn't care about them.
A tire company employee in Arizona was fired for responding to a Facebook post about protesting President Trump's visit to Phoenix:
You are all pathetic. Can't wait to drive through. 4x4 with push bumper will be sweet in this crowd. I named my lifted truck 'trumper." 
It's not just their own social media posts that can land employees in hot water. According to news reports, multiple individuals who allegedly attended the Charlottesville rally have been terminated after their photographs at the rally circulated on social media. Two restaurant employees were recently fired from a Minneapolis diner after their employer discovered photographs of the employees wearing Nazi apparel and displaying white supremacy paraphernalia on social media.

The lesson?  While social media can be a great way to share your views about recent news and events, it can also get you fired.  Just another installment of "be careful what you post."

Post Authored by Julie Tappendorf

Tuesday, August 29, 2017

Law Establishes New Qualifications for Fire Chiefs

P.A. 100-0425 was recently enacted to add new qualification requirements for candidates for appointment to the position of fire chief. The new law applies to municipalities that employ firefighters under either the Civil Service Act or the Board of Fire and Police Commissioners Act and  also applies to fire districts. 

The new law prohibits the appointment of a person to the position of fire chief for a period greater than 6 months unless that person possess the following qualifications and certifications:

1.  Office of the State Fire Marshall Firefighter Basic Certification or Firefighter II Certification; Fire Officer I and II Certifications; and an associate degree in fire science or a bachelor's degree from an accredited university or college; 


2.  A minimum of 10 years' experience as a firefighter at the fire department making the appointment.

Post Authored by Julie Tappendorf

Monday, August 28, 2017

Gaming Board Rules Against "Video Gaming Mall"

The Illinois Gaming Board has authority over video gaming in Illinois, including determining the eligibility of a business to be issued a video gaming license. In Illinois, video gaming is allowed on a limited basis under rules established by the Video Gaming Act. Those rules generally limit the number of video gaming terminals in an establishment (5 maximum), and restrict the location of the gaming terminals within the establishment, among other rules. In addition, municipalities have authority to ban video gaming or to license establishments that offer video gaming. 

One of the fastest growing video gaming businesses are what is known as "video gaming cafes" - establishments whose primary focus is on video gaming, with secondary service of food and alcohol. These businesses rarely have a full kitchen operation, and as a result are fairly inexpensive to open. Recently, two of these businesses applied for video gaming licenses to operate in the same strip shopping mall in Hometown. The strip mall already had 3 other video gaming businesses. The shopping center's owner's plan, according to the court opinion, was to have 11 gaming establishments in the shopping center - in essence, to operate the shopping center as a video gaming mall.

The Gaming Board denied the 2 new license requests, finding that "having multiple video gaming establishments located within the same strip mall would be akin to having a mini-casino or back-door casino, but without any of the traditional safeguards" (such as security and having a Gaming Board agent on staff). In short, the Gaming Board determined that permitting a "video gaming mall" would not serve the best interests of Illinois residents.

The applicants for the 2 gaming licenses appealed the denial to the court, and the case made its way to the appellate court. The appellate court upheld the denial of the 2 licenses, finding that the Illinois Gaming Board has broad authority to deny a license, including "for any other just cause." In this case, the court found there was sufficient evidence presented to the Gaming Board about the adverse affects a video gaming mall would have on the public to justify the denial of these 2 licenses.

The court also mentioned a recent regulation adopted by the Gaming Board that authorizes the Board to deny a gaming license if approval of that license would create a situation where 2 or more licensed video gaming locations would be operated as a single video gaming operation (like a casino). 

Post Authored by Julie Tappendorf

Friday, August 25, 2017

New Podcast on Social Media & Local Government Law

Recently, Ancel Glink attorneys Julie Tappendorf and Dan Bolin were interviewed by GovLove for a podcast called "Local Government Law: Are You Tweeting Into Trouble?" In the podcast, Julie and Dan discuss some of the common legal issues with government use of social media, including First Amendment, copyright, and employee use of social media. You can check out this podcast on GovLove's page on ELGL's website here.   

GovLoveGovLove is a podcast hosted by Engaging Local Government Leaders (ELGL), where ELGL members interview people who work in local government to learn more about what they do and to explore various issues that impact local government. 

You can access the social media podcast (and others hosted by GovLove) on the following platforms:

Soundcloud here,  iTunes here,  Stitcher here,  Google Play here

Thursday, August 24, 2017

When is a Facebook "Friend" Really A Friend (IRL)?

When is a Facebook "friend" considered a friend IRL (in real life)?  Yesterday, a Florida appeals court ruled that the mere fact that a trial court judge was Facebook friends with an attorney did not disqualify the judge from hearing a case involving that attorney. Law Offices of Herssein and Herssein v. U.S. Automobile Association.

The underlying dispute in this case isn't really important, at least not to this post. The issue before the appeals court was the plaintiff's request that the trial court judge be disqualified because the judge was "friends" on Facebook with a lawyer representing a potential witness and party in the underlying dispute. The trial court had denied the request, and that decision was appealed to the appellate court. 

The appellate court looked at the factors for determining whether a judge should be disqualified, including whether a reasonably prudent person would fear he could not get a "fair and impartial trial" before the judge. In this case, the appellate court determined that Facebook friendship between a judge and an attorney, on its own, was not enough to warrant disqualification of the judge, stating as follows:
A Facebook friendship does not necessarily signify the existence of a close relationship.
The appellate court acknowledged that people can have thousands of Facebook "friends," that a person may not even remember who he or she had "friended" in the past, and that some "friendships" may be due more to Facebook's  data-mining technology than personal interactions. In short, the court rejected any assumption that all Facebook "friends" should rise to the level of a close relationship that warrants disqualification. Based on the facts presented in this particular case, the court found no support for disqualification of the judge in the underlying dispute.

Post Authored by Julie Tappendorf

Tuesday, August 22, 2017

Upcoming Labor Law Program

Check out this upcoming seminar presented by Ancel Glink attorneys posted on our sister blog, The Workplace Report with Ancel Glink:

Union Organizing and Management Strategy

When: Wednesday, August 30, 2017 8:30 a.m. to 11:30 a.m.

Where: Bridges of Poplar Creek Country Club (1400 Poplar Creek Drive, Hoffman Estates, IL 60169)

Who: All levels of management, including executive directors, administrators, attorneys, and human resource professionals.

What: Fewer American workers belong to labor unions than at any time since the U.S. government began tracking this statistic. Membership has tumbled even further with the increase of right-to-work laws and litigation over fair share dues. In an effort to boost declining membership, labor unions have set their sights on new sectors, including increased focus on smaller local government units and higher education. Labor unions recently have organized park district employees as well as both resident assistants and adjunct faculty at colleges and universities and further union organizing in these nontraditional sectors is certain.

It is important for an employer to decide its position on union representation as a matter of business strategy, rather than wait until a union has begun an organizing campaign. We believe now is the time for employers to be more aware of potential organizing campaigns and how best to lay the groundwork for implementing a proactive strategy.

Please join us for this informative and educational seminar aimed at providing employers with tips on how to detect potential organizing campaigns, what to do if a campaign begins, and finally, the best ways to respond to a union organizing campaign, including responding to the representation petitions.

How: Seating is limited. Reserve your spot at the breakfast briefing now by calling Kathy Holmes at 312-604-9174 or by making a reservation by email at kholmes@ancelglink.com.

Disclaimer: This post may be considered attorney advertising material under the applicable rules of certain states

Monday, August 21, 2017

New Exemptions to FOIA Exempt Additional Records Requested by Inmates

The Illinois Freedom of Information Act was recently amended to add additional exemptions for records requested by persons committed to the Department of Corrections or a county jail.  Public Act 100-0026 was recently signed by the Governor, and became effective on August 4, 2017.  The amendment adds three new exemptions to Section 7 of FOIA:

(e-8) Records requested by a person committed to the Department of Corrections or a county jail, the disclosure of which would result in the risk of harm to any person or the risk of an escape from a jail or correctional institution or facility.

(e-9) Records requested by a person in a county jail or committed to the Department of Corrections containing personal information pertaining to the person's victim or the victim's family, including, but not limited to, a victim's home address, home telephone number, work or school address, work telephone number, social security number, or any other identifying information, except as may be relevant to a requester's current or potential case or claim.

(e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim.

Section 7(e-5) and 7(e-6) were also amended to exempt records requested from persons committed to a county jail if those materials are available in the library of the jail, or if the records include records from staff member’s personnel files, rosters, or assignment information.  Previously, Sections 7(e-5) and 7(e-6) only applied to records requested from inmates committed to the Department of Corrections. 

The goal of these amendments is to prevent FOIA from being used for harassment purposes.  Public bodies may wish to review any exemptions listed in their FOIA policies to determine whether these new exemptions should be added.

Post Authored by Erin Pell, Ancel Glink

Thursday, August 17, 2017

2 Bills Would Prohibit County "Pop" Taxes

Likely in response to the backlash from Cook County's' "pop tax" (the tax imposed on all sweetened beverages (sugar and artificial sweeteners), two bills were recently introduced in the Illinois House that would prohibit home-rule and non-home rule counties in Illinois from taxing sweetened beverages. 

If House Bill 4083 passes, it would not affect Cook County's tax, which went into effect this month.   However, House Bill 4082 would invalidate any prior tax, which would seem to cover Cook County's pop tax. 

Of course, Cook County's tax is still the subject of a lawsuit, although the previous injunction has been lifted. So, there may be any number of avenues to try to get rid of this tax.

You can read House Bill 4082 here and House Bill 4083 here.

Side note:  you can usually tell if someone grew up in the Chicago area or somewhere else by the terminology they use to describe a soft drink.  Otherwise known as the pop vs. soda wars.

Post Authored by Julie Tappendorf

Tuesday, August 15, 2017

PAC Finds 9-1-1 Tape Collected in an Active Criminal Investigation is Not Exempt

The Public Access Counselor (PAC) just issued its 11th binding opinion for 2017. In PAC Op. 17-011, the PAC found a public body in violation of FOIA for denying a request made by a reporter for a 9-1-1 tape involving the death of a child. 

The public body had denied the request based on a number of FOIA exemptions, including that release of the tape would impede an active investigation into the child's death under section 7(d)(vii). That exemption exempts from release records compiled by a law enforcement agency that, if disclosed, would obstruct an ongoing criminal investigation. Although the public body provided a detailed explanation as to why the release of the 9-1-1 call that was made by a person of interest in the criminal investigation could impede that investigation, the PAC rejected that argument, finding that the public body had failed to provide clear and convincing evidence that the tape should be exempt. Interestingly, the PAC made its own determination that the tape was a "limited" part of the criminal investigation.

The PAC also rejected the public body's use of the "private information" exemption. The public body had argued that the audio recording qualified as "biometric information" that is exempt under section 7(1)(b) of FOIA. The PAC rejected that argument, finding that an audio recording of a voice does not constitute a "voiceprint" that would qualify as biometric information since "voiceprint" is defined under state statute as an analysis or measurement of a person's voice.

In my opinion, the PAC's conclusion on the use of the biometric exemption appears consistent with the definition of biometric information, but the PAC may have gone too far in deciding, on a public body's behalf, what records collected as part of a criminal investigation could, if released, obstruct an active criminal investigation. 

Post Authored by Julie Tappendorf

Monday, August 14, 2017

Illinois Election Day Voter Registration Upheld

On August 4th, 2017, the Seventh Circuit Court of Appeals vacated a preliminary injunction that had been previously granted regarding the same-day voter registration law, finding no evidence that allowing same-day voter registration in large Illinois counties discriminates against voters in small counties. Harlan v. Scholz (7th Cir. 2017)
Harlan, a Republican candidate for Illinois congress, sued the Illinois State Board of Elections in 2016, claiming the state law guaranteeing same day registration for high population counties violated due process by disproportionately benefiting Democrats. The law provided that counties with a population of over 100,000 must allow citizens to register when voting, while smaller counties can decide whether to provide the service. According to the case, there are only 20 Illinois counties that provide same day registration, but these 20 counties account for about 84% of Illinois’ total population.

Harlan argued that the law was unconstitutional because it gave larger counties more options of implementing registration and voting, and that these counties tended to have a disproportionate number of Democrat voters. The District Court for the Northern District of Illinois ruled in Harlan's favor, partly based on Harlan's expert witness testimony about urban voters. 

In reversing the District Court, the Seventh Circuit found that Harlan failed to show that "Election-Day registration in Illinois’ 20 more heavily populated counties is more likely to increase voter participation than centralized Election-Day registration in the smaller counties..." The Seventh Circuit also held that the law “does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, coupled with the lack of any data about which groups are disadvantaged and how, dooms the injunction.”

Post Authored by Jack Takiguchi & Julie Tappendorf, Ancel Glink

Wednesday, August 9, 2017

Law Prohibiting Ballot Selfies Unconstitutional

In Illinois, it is illegal to take a "ballot selfie" - i.e., taking a photo of yourself with your ballot. The statute makes it a Class 4 criminal felony for “any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person.” The purpose of the law is to prevent ballot tampering, exposure, or vote monitoring but it has also been interpreted to prohibit individuals from taking a photograph of their ballot and then publicizing that photograph (usually on social media). Last week, a trial court judge in Madison County declared that law unconstitutional.

The Illinois General Assembly is considering a bill to address "ballot selfies." House Bill 388 has passed the Illinois house and is pending in the senate. If passed, the statute would be amended to expressly allow a person to take a photograph of his or her own ballot during the voting process, so long as they aren't receiving any payment for doing so. The underlined language below is the proposed amendment:
(10 ILCS 5/29-9)  (from Ch. 46, par. 29-9) 
Sec. 29-9. Unlawful observation of voting. Except as  permitted by this Code, any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting  device, shall be guilty of a Class 4 felony. Nothing in this Section shall prohibit a person from photographing his or her own ballot at any time during the voting process or from viewing a photograph of a completed or partially completed ballot; however, a person who gives, promises to give, or receives any money or other valuable consideration in connection with the dissemination or viewing of such a photograph shall be guilty of a Class 4 felony.
Post Authored by Julie Tappendorf

Read more here: http://www.bnd.com/news/local/article165520627.html#storylink=cpy

Tuesday, August 8, 2017

Pension Fund Found to Impair Pensioner's Rights to Benefits

In an 86 page opinion, an Illinois Appellate Court determined that a municipality's pension fund was underfunded to the point of being "on the verge of default or imminent bankruptcy," in violation of the Illinois constitution. The court also held that the municipality's actions in failing to adequately fund the pension fund violated state law and a previous settlement agreement between the municipality and the pension fund, and entitled the pension fund to damages, among other relief. Pension Fund vs. City of Harvey.

The appellate court goes into great detail about the facts leading up to the lawsuit, as well as the testimony of the various experts and others relating to the underfunding claims by the pension fund. According to the opinion, in some years, the municipality did not appropriate any funds for the pension fund. In others, the municipality appropriated some funds. In all years relevant to the lawsuit, the money going out from the pension fund to retirees exceeded the funds going into the fund, both by the participants and the municipality. 

The opinion addresses a variety of arguments and issues relating to funding of a pension fund, but one of the most interesting issues addressed by the court is its interpretation of a fund being "on the verge of default or imminent bankruptcy." That phrase comes from the legislative history of Article 13, Section 5 of the Illinois constitution, the constitutional provision that provides that membership in a pension fund is "an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." Testimony about this particular provision of the Illinois constitution included a discussion of what "impair" means, and included the following discussion:
The word "impair" is meant to imply and to intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved.
No court had made a determination that a particular pension fund fell within this standard, although the appellate court discussed cases that had referenced this language.

In applying this standard to the pension fund at issue in Harvey, the court first acknowledged that the fund was not in bankruptcy. However, the court noted that the language used in this standard was "on the verge of" rather than requiring an actual bankruptcy proceeding. The appellate court held that Harvey's pension fund met the standard because the evidence submitted at the trial court demonstrated that the pension fund would not be able to pay out benefits in as little as five years and that the fund would likely reach a point where the municipality could not make enough contributions to meet the pension fund obligations. The court acknowledged that pension funds are not entitled to a specific mandatory funding level and that the level of funding is discretionary. However, the evidence submitted at trial showed that Harvey had contributed less than 10% of the annual actuarial requirement in 6 out of 9 years, putting the fund "on the verge of default" and giving rise to a constitutional claim by pensioners that its benefits were being impaired.

In its conclusion, the appellate court upheld the trial court's rulings in favor of the pension fund, including an order that Harvey levy funds adequate to meet its pension obligations.

Post Authored by Julie Tappendorf

Monday, August 7, 2017

Court Upholds Ordinance Restricting Commercial Activity in Neighborhood Park

Recently, a federal appeals court upheld the constitutionality of a municipal ordinance that prohibited commercial activity in a park without a permit against a challenge by a commercial photographer.  Havlak v. Village of Twin Oaks, no. 16-3377 (8th Cir. July 25, 2017).  

The Village Board of Twin Oaks enacted an ordinance to protect a newly dedicated neighborhood park. That ordinance prohibited activities such as obstructing walkways, motorized vehicles, hunting and all commercial activities. After the park was upgraded in 2011, it began to attract significantly more visitors, including commercial photographers who began using the park as a back drop for weddings and other types of photo shoots.  In response to complaints of the increased activity within the park, the Village Board put up signs notifying visitors of the long-established ordinance prohibiting commercial activity within the park.  Subsequently, a commercial photographer filed suit seeking to prevent the enforcement of the ordinance and alleging that the ordinance was a violation of her First Amendment rights.

In response to the lawsuit, the Village Board amended the ordinance to create a permit process for commercial use, which included automatic approval for events with 10 persons or less, lasting less than one hour and with a 48 hour advance notice period.  For larger or longer events, the permit process allowed the Board to consider factors relating to government interests, such as the disruptive impact of the activity, potential damage of the activity and whether the activity will cause congestion in the park.  The permit process also included a $100 fee to pay for police oversight of the activity.  

The appellate court ultimately held that, though the First Amendment applies to municipal ordinances, municipalities still have the authority to “regulate competing uses of a traditional public forum, like a park, by imposing a permit requirement.”  The Court found that the challenged ordinance was content-neutral, narrowly-tailored and met the constitutional standards regarding regulations on time, place and manner.  

The reasoning behind the Court’s decision is largely based on the premise that the ordinance was enacted to serve a significant government interest of maintaining the park and was content neutral since it prohibited all commercial activity, rather that any particular commercial activity or message. The Court found that there were also several other alternatives for the photographer to communicate her message since she hardly used the park before she heard about the Village’s ordinance.  Furthermore, the permit process established did not give “unbridled discretion to the Village to approve or deny permits. Instead, the court found that the ordinance provides “articulated standards” and “objective factors” that the clerk and the Board are to consider when granting permits.” 

Post Authored by Katie O'Grady, Ancel Glink

Thursday, August 3, 2017

Two Recent Cases Address Municipality's Duty in Slip/Trip and Fall Cases

Two recent appellate decisions provide some guidance to Illinois local governments on "slip and fall"  or "trip and fall" lawsuits against public bodies.

In the first case, the Second District ruled in favor of a municipality in a case involving a slip and fall on an allegedly unnatural accumulation of ice. Knuth (the plaintiff) had just started working as a salesman at a car dealership located next to a Village water tower. At the end of his shift, Knuth went to the back of the car dealership property to make sure all the car doors were locked. The dealership property line meets the gravel walkway to the water tower. Knuth claimed he slipped on ice “in or near the area where the asphalt pavement ends and the gravel walkway surface commences.” 

Both parties hired experts to determine if snow on top of the water tower melted and subsequently froze (snow-migration theory) or if the downward slope of the tower to the dealership caused the unnatural accumulation of ice (water-migration theory). The Village argued it had no duty to monitor and remediate accumulations of snow and ice on neighboring properties. The Village alternatively argued it had immunity under sections 2-109 and 2-201 of the Local Governmental and Governmental Employee Tort Immunity Act, which immunize the discretionary actions of government employees. Specifically, the Village argued that any preventative measures to remove snow from the water tower or warning the dealership that snow could blow onto its property would still require a Village employee to exercise discretion in determining whether such a policy is appropriate and if so, the means and methods of carrying out such a program.

Ultimately, the appellate court ruled in favor of the Village, finding that there was insufficient evidence that the Village's actions caused plaintiff's fall.  Knuth v. Village of Antioch, et al., 2017 IL App (2d) 160961-U.

The second case involved another slip and fall - this time on a street. Lewis v. City of Chicago, 2017 IL App (1st) 16-1888-U. This case provides a pretty thorough analysis into the Tort Immunity Act and various exceptions. 

Lewis was exiting a CTA bus when he stepped into pothole, injuring his ankle. According to the case, the bus stopped one foot away from the curb, and Lewis exited the rear exit of the bus as opposed to the exit near the driver. The pothole that Lewis stepped in was not in a crosswalk and was half covered by the bus, so Lewis could not see the pothole until he was on the ground. 

The City argued it was immune under Section 3-102 of the Tort Immunity Act because Lewis was not an intended and permitted user of the street. The appellate court agreed, finding that since Lewis was outside of the crosswalk when he fell into the pothole and injured his ankle, he was not an intended user of the street. Courts have made it clear in numerous cases that streets are intended for vehicular traffic and not by pedestrians, meaning there is no duty owed to pedestrians who attempt to cross streets outside of the crosswalk. In fact, courts have repeatedly held that no duty exists for a municipality when a pedestrian exits a city bus onto a street instead of onto the curb or sidewalk. Thus, the Courts continue providing immunity even when pedestrians, for a variety of reasons, encounter difficulties requiring them to walk on the street outside of the cross walk.

Post Authored by Christy Michaelson, Ancel Glink

Tuesday, August 1, 2017

Elected Official Violated First Amendment in Blocking Person from Facebook

Many elected officials across the country use Facebook, Twitter, and other social media sites to engage with their constituents. Because the majority of these sites are not administered and moderated by government employees and instead are moderated solely by the elected official, many elected officials probably consider their social media sites to be "personal accounts" that would not be subject to First Amendment scrutiny. 

In a recent case out of Virginia, however, a court determined that the Facebook account of the chairman of a county board of supervisors was subject to the First Amendment, and that the chairman's actions in blocking a person from posting on that account violated that person's free speech rights. Davison v. Loudoun County Board of Supervisors. While this district court case case is out of Virginia, it could be persuasive to other courts across the country, including the federal district court that will consider the lawsuit brought against President Trump by persons who were blocked from his Twitter account.

The Loudoun County Board Chairman had established a Facebook page called "Chair Phyllis J. Randall." According to the court order, the chair had "plenary control" over her Facebook page; however, her chief of staff also was named as an administrator of the Facebook account. The account was created outside of the County's official channels, and the chair and her chief of staff posted to the account only from their personal devices. The court noted in its opinion that many of the posts on the Facebook page relate to the defendant's work as chair of the county board, including county board meetings, events, and activities. 

After a town hall meeting at which plaintiff Davison attended and asked a question, Davison posted a comment to the chair's Facebook page, alleging corruption and conflicts of interest of school board members. Shortly thereafter, the chair removed her original post, as well as Davison's comments, and then banned Davison from her Facebook page. The following morning, she reconsidered her decision to ban him and "unbanned" him. Davison sued, claiming that the chair violated his First Amendment free speech rights. 

The district court first analyzed the chair's Facebook page to determine whether (1) the chair was acting in her official capacity and (2) the page was a "forum" that would implicate First Amendment protections.  

First, the court determined that the chair used her Facebook page as a "tool of governance" to keep constituents informed of county activities and to solicit feedback from constituents. Second, the court found that the chair did use county resources to support her page by giving her chief of staff access to post on the page. Third, the court stated that official newsletters from the county promoted the chair's Facebook page. Fourth, the court determined that the Facebook page itself included numerous references to the chair's office, including referencing her title; categorizing the page as that of a government official; referencing official county contact information; linking to the county's website; and that the majority of posts related to county board matters. Fifth, the specific act of banning Davison from the chair's Facebook page arose out of "public, not personal, circumstances." 

The court concluded that the chair was acting in her official capacity and had opened up a public forum on Facebook, although it did not specify what type of forum (i.e., traditional, limited, or non-public forum) because it held that the chair engaged in "viewpoint" discrimination that is prohibited in all forums by banning Davison from her page because of his critical comments. The court noted that the chair had not adopted or applied a neutral comment policy and, instead, had simply removed comments and banned Davison because she was offended by his post, which constituted viewpoint discrimination. 

In conclusion, the court held that the chair violated Davison's free speech rights by removing his comments and banning him. However, because the ban was short-lived, the court noted that the consequences of the ban were fairly minor, and they did not warrant injunctive or other relief. 

Elected officials who operate social media pages to connect with constituents and comment on government activities should be aware of this case, and be on notice that removing critical comments or banning persons from their pages might constitute a First Amendment violation. 

Post Authored by Julie Tappendorf

Monday, July 31, 2017

FOIA Information Can Form the Basis for False Claims Act Lawsuit

A recent decision from an Illinois appellate court clarified when individuals can bring claims under the Illinois False Claims Act. In Lyons Township ex rel. John H. Kielczynskiv. Village of Indian Head Park, a citizen submitted a number of FOIA requests to a municipality regarding a contract for police services that the municipality had entered into with an adjacent township.  

After reviewing the information produced by the municipality in response to his FOIA request, the citizen filed a lawsuit under the Illinois False Claims Act. The False Claims Act allows private parties to bring lawsuits on behalf of public bodies that have allegedly been defrauded.  These private parties are then entitled to a percentage of the settlement or judgment if the lawsuit is successful.  The complaint alleged that the municipality had defrauded the township by submitting bills for services that were never performed and for retaining the revenue from tickets written within the unincorporated areas of the township.

The municipality filed a motion seeking to dismiss the lawsuit because the source of the information that formed the basis of the citizen’s claims was the municipality’s FOIA responses.  Under the False Claims Act, there are a number of exceptions that prohibit a lawsuit from moving forward based on how the citizen discovered the evidence of the alleged fraud.  For example, if the citizen learns of the alleged fraud from a news story or other public report, the citizen cannot proceed with a suit under the False Claims Act.  

Although the trial court had previously ruled in favor of the municipality, the appellate court reversed, finding that the citizen’s claims were not barred simply because the FOIA responses came from the municipality, and not the township.  The court held that only information provided by the public entity that was allegedly defrauded (in this case, the township) could be considered a public report that would bar an action under the False Claims Act. Since the information that formed the basis of the citizen’s claims came from the municipality’s FOIA responses, as opposed to the township, the municipality could not stop the citizen’s claims from moving forward. 

The court also found that the allegedly fraudulent actions of the municipality were not immunized under the Tort Immunity Act. The court noted that the citizen’s claims were based on the contract between the municipality and the township, and that causes of action under a contract theory are not protected by the Tort Immunity Act. The court also held that the Tort Immunity Act only bars claims based on the oral misrepresentations of a municipal employee, but does not bar claims where the alleged fraud is still based on a written contract.  

Post Authored by Kurt Asprooth, Ancel Glink

Friday, July 28, 2017

Upcoming Webcast on the USSCT's Takings Case

The Planning and Law Division of the American Planning Association will be hosting a webcast on the recent "takings" case by the U.S. Supreme Court. Information about the webcast is below:

Webcast— Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings

August 14, 2017
1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings on Monday, August 14 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.

In Murr v. Wisconsin, the Court ruled 5-3 that a Wisconsin "lot merger" regulation was not an unconstitutional taking as applied to two contiguous parcels, one of which the owners wanted to sell while retaining the other. Rejecting the competing "bright-line rule" positions offered by the owners and the State of Wisconsin, Justice Kennedy announced a new multi-factor test to determine the extent of the appropriate "denominator" in takings claims involving merger provisions applied to contiguous parcels. This webinar will review the facts and ruling in Murr, discuss the dissenting Justices' criticisms of Kennedy's test, and the implications of the Murr ruling both on how state and local governments regulate contiguous parcels and ways that owners of contiguous parcels may react to the ruling.   

Speakers include Alan Weinstein of Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs; Nancy Stroud of the firm Lewis, Stroud & Deutsch, PL; and John Echeverria of Vermont Law School.

Thursday, July 27, 2017

Contractor Employee Names on Certified Payrolls Releasable Under FOIA

In the 10th binding opinion of 2017, the PAC office of the Attorney General found a municipality in violation of FOIA for redacting employee names from a certified payroll record provided in response to a FOIA request. PAC Op. 17-010

A union representative had filed a FOIA asking for copies of payroll records for a particular construction project. The City provided the records, but redacted the contractor employees' names, addresses, social security numbers, and drivers' license numbers. The union filed a request for review with the PAC contesting the redaction of the employee names. The PAC ruled in favor of the union requester, finding that the municipality should not have redacted the names. The PAC acknowledged that section 2.10 of FOIA authorizes a public body to redact from certified payroll records the contractor employees' addresses, telephone numbers, and social security numbers, but noted that this statute does not allow redaction of the employees' names. The PAC also stated that the contractor employees' names were not likely to qualify as "highly personal information" that would fall under the "personal privacy" exemption of 7(c) of FOIA. 

The PAC also noted that the municipality failed to explain the reasons for redacting the other information when it provided the redacted records to the union.  It is important to remember that redacting a record is considered a partial denial, meaning that a public body is obligated to cite the exemption that authorizes the redaction, provide a detailed factual basis for why the exemption was used, and notify the requester of its right to appeal the partial denial.  

Post Authored by Julie Tappendorf

Wednesday, July 26, 2017

Justice Department’s Fair Housing Suit Against Village Moves Forward

In 2015, a developer submitted plans to the village of Tinley Park proposing to build 47 apartments in a three-story building.  The project was known as the Reserve. The apartment complex would be marketed to people making less than 60 percent of the area median income, and the developer planned to finance the project through the federal Low Income Housing Tax Credit program.    

Originally, the village's planning department determined that the Reserve project met the legal requirements under a special community development plan ordinance alleviating the need for approval by the village board to secure permits. However, shortly after the plans for the Reserve became public, opposition grew from the village residents and the village board sent the project’s plans back to the planning department for review.  The developer eventually sued the village, and the case was resolved when the village agreed to a $2.75 million settlement without any admission of wrongful conduct on the village's part. 

The Justice Department subsequently filed a lawsuit against the village, alleging that the village engaged in a pattern or practice of unlawful discrimination and denied rights to a group of persons on the basis of race and color in violation of the Fair Housing Act in connection with the Reserve project.  Specifically, the federal lawsuit stated that “Community opposition to the Reserve was based on discriminatory attitudes towards African Americans and other groups based on race.”  

The village filed a motion to dismiss, arguing that the Justice Department didn’t have authority to file suit under the Fair Housing Act. The village argued that because the office of the FHA was vacant at the time the suit was filed, the Principal Deputy Attorney General Civil Rights Division had no authority to bring the action. The federal judge rejected the village’s argument and sided with the Justice Department, noting that the suit was brought by the highest ranking official in the Civil Rights Division at the time.  According to the ruling, Congress had never suggested its intent to limit the delegation of authority to subordinates and therefore the functions governed by the statute can be delegated.

We will certainly keep an eye on this case as it moves forward.

Post Authored by Megan Mack, Ancel Glink