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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

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

Friday, April 7, 2017

Appellate Court Grants Group another Shot to Challenge Gun Shop Zoning Approvals


Last week, an Illinois appellate court held that “People for a Safer Society” (“PFSS”) will be allowed another opportunity to file an amended complaint to establish the group’s standing to challenge the Village of Niles’ approval of a special use permit for “Howard Venture,” a business with firearm sales, an indoor firing range, and firearms safety training.

After the Village approved Howard Venture’s special use permit, area residents and PFSS filed a lawsuit claiming that the zoning approvals were unconstitutional as applied to them. The plaintiffs were not adjacent or adjoining property owners. The trial court dismissed the amended complaint for lack of standing, and for failing to identify any particular harm they suffered from the approval.

The appellate court stated that plaintiffs are required to assert a “special” harm that differs from the harm suffered by the general public in order to establish standing for their lawsuit challenging the rezoning of a third party’s property. Although the four individual plaintiffs owned businesses in close proximity to the Howard property, the court held that they failed to establish how their harm differed from other individuals residing and working within a two-mile radius of the Howard property. Proximity to a rezoned property alone was insufficient to provide the individuals with an interest beyond that of the general public, so the individual plaintiffs lacked standing.

As to PFSS’ standing to remain in the case, it had alleged that one of its members, New Hope Academy, would have to relocate its school if the gun shop is allowed to open. The court held that PFSS’ conclusory allegation that the school would relocate was too speculative and remote but allowed them to file a second amendment complaint alleging more facts to support their cause of action.

To learn more about standing to challenge the zoning of a third party’s property, you can review the appellate court’s full opinion:  People for a Safer Society v. Village of Niles.

Post authored by Daniel J. Bolin and Amanda Riggs

Thursday, April 6, 2017

Illinois Supreme Court to Hear Appeal of Bike Path Tort Immunity Case



The Illinois Supreme Court has granted the Chicago Park District's petition for leave to appeal in a case that may have significant implications for units of local government that maintain bike paths. 

In Cohen v. Chicago Park District, 2016 Il App (1st) 152889, the plaintiff was riding his bike on the Lakefront Trail near the Shedd Aquarium when his wheel became caught in a crack in the concrete.  The crack was approximately three to four feet long, three to four inches wide, and two to three inches deep.  Cohen was injured and sued the Park District for willful and wanton conduct. 

At trial, the court granted the Park District’s motion for summary judgment, finding the District was immune under Section 3-107(a) of the Tort Immunity Act, which grants absolute immunity from injuries caused by a condition of a “road which provides access to fishing, hunting, or primitive camping, recreational or scenic areas.”  Additionally, the trial court found that, even if section 3-107(a) did not apply, the Park District was immune under section 3-106, which provides immunity from injuries occurring on recreational areas, unless the governmental entity has engaged in willful and wanton conduct.

The appellate court reversed the trial court’s grant of summary judgment, finding, first, that section 3-107(a) immunity applies only to access roads to primitive recreational and scenic areas, and not to the Lakefront Trail.  Additionally, the appellate court held that the question of whether the Park District may have engaged in willful and wanton conduct was a question of fact for a jury to determine.  The plaintiff had presented evidence that the Park District was aware of the defect in the Lakefront Trail prior to the plaintiff’s injuries.  Consequently, according to the appellate court, it was not appropriate for the trial court to hold as a matter of law that the Park District was not willful and wanton.

The Park District appealed the appellate court's ruling, and the District's appeal will be heard by the Illinois Supreme Court. We will report on the Illinois Supreme Court’s decision in this matter when it becomes available.   

Post Authored by Jim Rock, Ancel Glink  

Wednesday, April 5, 2017

7th Circuit Extends Title VII Prohibition on Sex Discrimination to Sexual Orientation


Yesterday, the Seventh Circuit Court of Appeals (the federal circuit court covering Illinois, among other states) ruled that the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. Hively v. Ivy Tech Community College of Indiana (7th Cir. April 4, 2017).

The case involved a lawsuit filed by Kimberly Hively against her employer, Ivy Tech Community College. Hively was a part-time adjunct professor at the college who had applied six times, unsuccessfully, for a full-time position from 2009 and 2014. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that she was being discriminated based on her sexual orientation. In 2014, after she filed her charge with the EEOC, her part-time contract was not renewed. 

She received her right-to-sue letter and filed her lawsuit in the district court. That court granted the college's motion to dismiss, on the basis that sexual orientation is not a protected class under Title VII of the Civil Rights Act. She then appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit first acknowledged that the U.S. Supreme Court and the other circuit courts of appeals have not recognized sexual orientation to be part of Title VII's sex discrimination protection. 

The Court framed the issue before it as not whether the Court should "amend" Section VII to add a new protected category, but instead whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex, which is protected under Section VII. In the Seventh Circuit's view, that answer is yes, because, as the Court states in the Hively opinion, "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex..." As a result, the Court overturned the district court's dismissal of Hively's complaint against her former employer, holding that "a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." 

There were separate concurring opinions that agreed with the majority decision finding in favor of Hively, but suggesting the outcome should be based on other grounds. The dissenting opinion argued that the majority's opinion effectively amended Title VII, and that power should remain with the legislative branch rather than the courts.

Post Authored by Julie Tappendorf


Tuesday, April 4, 2017

Employee Time Off to Vote on Election Day


Today, is Election Day in Illinois so we offer a "Q&A" about employees and voting rights.

Question: Several of my employees have indicated they want to take an hour off during Election Day to vote. Do I have to allow them to use time off to vote?

Answer: Although there is no federal law that requires employers to give employees time off to vote, Illinois has adopted a law that requires employers to give employees two consecutive hours of paid time off on the day of an election in order to vote. The time off can only take place during the time polls are open - in this case, from 6:00 a.m. to 7:00 p.m.  

The law does not apply to early voting, and also does not apply to employees who are not required to work for a two hour period after the polls open or before they close. So, an employee who works a 10:00 a.m. to 3:00 p.m. shift would not be able to request two hours off to vote. Employees must request the time off prior to Election Day (not on Election Day), and employers can generally specify which two hours their employees can take off to vote. 

Post Authored by Julie Tappendorf

Monday, April 3, 2017

PAC Releases Annual Report for 2016


The Public Access Counselor of the Illinois Attorney General's office recently issued its Annual Report for 2016. The report provides information about the number of inquiries and requests for review received by the PAC office, and summarizes the binding opinions for 2016. Here are the highlights:
  • In 2016, the PAC received more than 4,500 requests for assistance from members of the public and the media. 4354 related to the Freedom of Information Act (FOIA) and 366 related to the Open Meetings Act (OMA)
  • The PAC issued 15 binding opinions in 2016. 
  • The PAC fielded between 15 to 20 questions per day through its FOIA phone hotline, and responded to more than 300 inquiries through the PAC email. 
  • The PAC conducted 15 training sessions.
The Annual Report includes a summary of all 15 of the binding opinions issued in 2016. As long-time readers know, we report on all of the binding opinions throughout the year and then summarized all 15 opinions in these two posts: here and here

The Annual Report also includes a summary of a few of the PAC's non-binding determinations (i.e., advisory opinions) issued in 2016. Interestingly, the PAC only chose a handful of advisory opinions that ruled against the public body. In this author's opinion, this type of one-sided reporting misleads the public to believe opinion that public bodies are generally not transparent. As we have reported in the past, many of the advisory opinions issued by the PAC rule in favor of the public body. Unfortunately, because the PAC refuses to publish these advisory opinions on its website, the public is not made aware of these opinions. Instead, the PAC releases an Annual Report that is silent about these "other" opinions - those in which the public body followed FOIA or the OMA - and instead focuses exclusively on opinions that rule against public bodies. 

In the future, I hope that the PAC can be more transparent in its reporting. That would seem to be in the best interest of everyone, as full disclosure of all of the PAC's determinations could assist public bodies in complying with these two laws and provide the public with a fuller picture of the PAC's rulings and determinations.

Post Authored by Julie Tappendorf

Wednesday, March 29, 2017

Police Officer Fired for Racist Facebook Post


Today's blog is a companion post to our report last week about a firefighter who was terminated for his Facebook activity - you will recall that the court of appeals upheld the firefighter's termination. This one involves a Florida police officer who was fired for the following Facebook post:
This year we lost two gorillas, one is in heaven and one is moving out of the White House. One will be missed. One will not be.
Shortly after posting this on Facebook last November, a citizen filed a complaint with her employer, the Bartow Police Department. Although news reports state that she was suspended for two days, that suspension related to social media posts in which she was wearing her uniform and not this Facebook post. The officer remained on the Bartow Police Department until last week, when the chief of police terminated her by letter dated March 23, 2017.

According to news reports, the basis for her termination was a letter from the county state's attorney's office that the police officer would no longer be used as a witness in any case filed in the county circuit court because of the damage to the officer's credibility as a result of her Facebook post. The chief noted that an essential function of an officer's job is the ability to testify in court to support an arrest, and she could no longer perform this duty. 

Post Authored by Julie Tappendorf






Friday, March 24, 2017

Court Upheld Termination of Firefighter for Facebook Conduct


In another installment of "be careful what you post," today we report on a case involving a firefighter's termination for his Facebook messages. Grutzmacher v. Buker (Mar. 20, 2017, 4th Cir.). Based on this ruling, social media posters should also be careful what they "like" - further discussion below.

In 2013, the Howard County, Md fire department adopted a social media policy that governed employee use of social media, both on and off the clock, including the following prohibitions: 
posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department. . . . [and] posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission. 
In 2013, a battalion chief on the department engaged in various Facebook activities that ultimately resulted in his termination. His postings included the following: 
My aide had an outstanding idea . . lets all kill someone with a liberal - then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal - its almost poetic.
A Facebook friend of the chief’s, a county volunteer paramedic, replied to the chief’s post as follows: 
But ...was it an "assult liberal"? Gotta pick a fat one, those are the "high capacity" ones. Oh pick a black one, those are more "scary". Sorry had to perfect on a cool idea!
The chief "liked" the paramedic’s comment and replied, "Lmfao! Too cool…!"

After being contacted by the department, he removed the posts, but then followed up with the following Facebook post: 
To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I'm not scared or ashamed of my opinions or political leaning, or religion. I'm happy to discuss any of them with you. If you're not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.
The department dismissed the chief based on his violation of the social media policy and the department’s code of conduct, as well as the racial overtones of his postings, his failure to enforce department policies and his "repeated insolence and insubordination." He sued the department seeking reinstatement and damages, alleging that the dismissal was retaliation for his exercise of his free speech rights under the First Amendment. He also challenged the policies themselves as overbroad.

Both the district court and the Fourth Circuit Court of Appeals ruled in favor of the department on his retaliation claim, rejecting the chief’s claims that his termination violated his free speech rights. The Fourth Circuit held that the department’s interest in preventing disruption outweighed his interest in speaking out on Facebook on matters that related very little, if at all, to any “public concern.” The court noted that his Facebook activity interfered with and impaired department operations and discipline as well as working relationships within the department-which are critical where collaboration is necessary to save lives. The court also acknowledged that his Facebook activity conflicted with his responsibilities as a battalion chief and role model, and undermined the department's public safety messaging. There was evidence that at least three African-American firefighters in the department did not want to work with plaintiff because of the racists overtones in his Facebook messages. It was also overtly disrespectful of his superiors and the department in general.

One of the most interesting issues in the case related to the chief's "liking" of another person's post. The chief argued that a "like" could not be attributable to the chief. The court disagreed, stating that "liking a Facebook post makes the post attributable to the “liker,” even if he or she did not author the original post." The court cited the Bland v. Roberts case that involved a group of deputy sheriff's who "liked" their boss's opponent's campaign page during an election.  

As a side note, the department had modified its social media policies to address the challenges made by the chief that it was overbroad and the court subsequently dismissed that count.

In conclusion, the court upheld his termination.

Note that any misspellings in the quoted language are in the original.

Post Authored by Julie Tappendorf

Thursday, March 23, 2017

Illinois Supreme Court Hears FOIA Arguments in BGA v. IHSA Case


Previously, we reported on a decision by an Illinois appellate court ruling against the Better Government Association (BGA) in a lawsuit challenging the denial by the Illinois High School Association (IHSA) of its FOIA request. Following that ruling, the BGA filed an appeal with the Illinois Supreme Court, which heard the case earlier this week.  You can access the video or listen to the audio of the oral argument here.

The case involved the IHSA's denial of a FOIA request filed by the BGA asking the IHSA for accounting, sponsorship, public relations/crisis communications services and licensed vendor applications. The IHSA argued that it was a non-profit organization and not a public body subject to FOIA. The BGA responded that the IHSA is a "subsidiary public body" under FOIA because it performs a governmental service for its member school districts. Both the circuit and appellate courts ruled in favor of the IHSA, finding that the IHSA was not a subsidiary body and was not subject to FOIA.

At oral argument before the Illinois Supreme Court, the BGA argued that the IHSA should be considered a subsidiary body under FOIA because of the ties between the member schools and the IHSA and the governmental functions the IHSA performs on behalf of their member schools. The Justices spent some time questioning the BGA attorney on the matter of "control" between the member schools and the IHSA, asking the BGA to identify specific constitutional or statutory ties that exist, as well as questions as to the IHSA's funding sources.

The IHSA responded in its argument that the fact that public bodies may join an association (such as the IHSA), does not transform that private association into a subsidiary body under state law. The Justices focused their questioning on how the IHSA is funded (private donations and attendance fees), and that the IHSA is not supported by tax dollars.

The Illinois Supreme Court will issue a written ruling sometime in the future, so stay tuned as we will report on that decision when it comes out.

Post Authored by Julie Tappendorf

Wednesday, March 22, 2017

PAC Issues First Binding Opinion of 2017


The Illinois Attorney General (PAC office) recently issued its first binding opinion for 2017.  In PAC Op. 17-001, the PAC found the Illinois State Police in violation of FOIA for improperly denying a request for an ISP field report referenced in an accident report the requester had previously received. The ISP had denied the request in its entirety, claiming release would interfere with a pending law enforcement proceeding. 

The requester filed a complaint with the PAC, which determined that the ISP failed to provide a "detailed factual basis" as to how the release would interfere with its law enforcement investigations. In the PAC's opinion, the mere existence of an open investigation is not enough to satisfy this exemption, and the ISP was required to explain, in some detail, why release would interfere with the open investigation. 

Post Authored by Julie Tappendorf

Tuesday, March 21, 2017

Court Rejects Challenge to Ordinance Ban on Texting While Driving


Illinois has a law that prohibits a person from driving while using an electronic device (cell phone, smart phone, etc.). In 2005, the City of Chicago adopted an ordinance prohibiting similar conduct - i.e., using cell phones while operating a vehicle.  

After Simic was issued a ticket by a Chicago police officer for texting while driving, she challenged Chicago's ordinance in court, claiming it is unconstitutional. In her lawsuit, Simic claimed that the ordinance violated her due process rights and Eight Amendment's excessive fines clause. She sought damages in excess of one million dollars. 

The Seventh Circuit Court of Appeals ruled against Simic, finding that she had no standing to challenge the ordinance or seek monetary damages. Simic v. City of Chicago (7th Cir. 2017). The Court rejected any argument that a driver has a constitutional right to drive while using a cell phone, since that conduct is prohibited by state law. The Court also rejected her claim for damages, finding that she incurred no injury since her ticket was set aside in the administrative adjudication process. Finally, the court upheld the ordinance against a preemption claim, finding that Chicago had the authority to enact the ordinance and impose the fines pursuant to its home rule powers.

Post Authored by Julie Tappendorf

Monday, March 20, 2017

Court Denies Preliminary Injunction in Case Challenging Chicago's Short Term Rental Ordinance


Late last year, we reported on a lawsuit challenging the City of Chicago's short-term rental ordinance. Chicago had adopted Ordinance O2016-5011 to regulate "shared housing units" by requiring hosts to register with the City and pay a 4% surcharge on the leasing charge for all rentals. The ordinance also required the hosting companies (i.e., AirBnb, Home Away, etc.) to pay a licensing fee (from $10,000 and up) and obtain a license from the City.  The lawsuit claims that the ordinance is unlawful for a variety of reasons, including that the required inspections constitute warrantless searches, the noise restrictions are unreasonable, and the 4% surcharge is a discriminatory tax.

Recently, the plaintiffs in the case filed a motion asking the judge to issue a preliminary injunction against the City of Chicago to prohibit the City from implementing and enforcing the new ordinance. Last week, U.S. District Court Judge Sara Ellis denied plaintiffs' motion for an injunction.

According to the written order, Judge Ellis expressed her doubts concerning the ability of the plaintiffs to show how the ordinance violates their constitutional rights or how they would suffer irreparable harm if the new rules take effect. Specifically, the Judge held that plaintiffs were not likely to establish that the City's shared housing ordinance targets expressive conduct or speech to trigger First Amendment protections. She also questioned plaintiffs' ability to succeed on its due process claims that the ordinance is vague. Finally, she noted that the City had a legitimate interest in adopting rules for the home sharing industry to address issues such as ensuring safety, protecting the residential character of neighborhoods, among others.

Post Authored by Julie Tappendorf

Friday, March 17, 2017

Recap: Illinois Planners Legislative Action Day 2017


Each year, the Illinois division of the American Planning Association organizes an annual legislative action day to reach out to state legislators on important planning issues.  This year's event occurred on March 14, 2017. Illinois planning professionals from around the state assembled in Springfield for APA Illinois’ third annual Planners’ Legislative Action Day (#PLAD17). 

The #PLAD17 attendees started their day over breakfast and enjoyed a lively and engaging discussion with Tom Henderson, Executive Director of the Illinois Tax Increment Association, on the importance of legislative advocacy by experts such as planners on matters involving the planning profession, practice, economic development, and land use regulatory powers. We also discussed how to approach your legislators to effectively make your concerns known about legislation that affects the planning profession and practice in Illinois. Finally, ideas were shared about how to increase APA Illinois’ profile in Springfield and become a recognized asset for legislators concerned about planning and development in Illinois.

#PLAD17 attendees toured the Capitol, sat in on both House and Senate floor sessions, attended committee meetings, and met with legislators to discuss a set of legislative priorities. Among these priorities were bills concerning: 

  •  Municipal annexation powers;
  •  Urban agricultural zones;
  •  Regional storm water management;
  • Rehabilitation and revitalization tax credits; and
  • Small wireless facilities deployment on public rights of way and other properties.
Details on the #PLAD17 legislative priorities can be found here.

The day was capped off by our End of the Day Reception at Arlington’s. Attendees shared their experiences and thoughts on next year’s Planners Legislative Action Day. We were also treated to a surprise visitor, Rep. Al Riley (D-38th Dist.). Rep. Riley is a certified professional planner and had many ideas on how the Chapter can become a resource for legislators and had very strong opinions, shared by the attendees, on the importance of Illinois planners making their voices heard in Springfield. Rep. Riley pointed out that planners occupy a very important and prominent role in the economic vitality of Illinois; they are, therefore, essential voices, in state policy-making concerning planning and development.

The APA Illinois Legislative Committee will be working over the balance of 2017 to:
  • Raise awareness of legislative matters,
  • Use data to better target legislative action messages to membership, and
  • Educate membership on the importance of legislative advocacy, and
  • Provide recommendations on how members can get more involved in a way that balances legislative advocacy and responsibilities to their communities.

As always, if you are interested in becoming involved with the Legislative Committee, have ideas on legislative initiatives or priorities, or simply have questions about the legislative process, including how you can make a difference, do not hesitate to contact any member of the Legislative Committee, including Ancel Glink's very own David Silverman.

Post Authored by David Silverman, Ancel Glink

Thursday, March 16, 2017

Court Finds that Church Sufficiently Stated Claims Under RLUIPA


A recent decision from an Illinois Appellate Court addressed whether a village may have violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it sought to compel a church to repair a historic building.  Village of West Dundee v.  The First United Methodist Church of West Dundee.

According to the complaint, the property was a historic building owned by the defendant church which had fallen into disrepair. The church had previously applied for a permit to demolish the building.  However, the permit was denied by the village’s appearance review commission, who wanted to see the building restored.  The church did not appeal this initial denial.  Several years later, the village cited the church for numerous property maintenance code violations following an inspection of the building.  When the church failed to remedy the violations, the village filed suit seeking to compel the church to repair the building. The church filed a counterclaim alleging various claims, including violations of RLIUPA. The church also sought an order authorizing demolition of the building. However, the church’s counterclaim was dismissed, and the church was ultimately ordered to repair the building.  

On appeal, the court first reversed the trial court’s dismissal of the church’s demolition counterclaim, explaining that when a municipality seeks one form of relief (either repair or demolition) under Section 11-31-1(a) of the Illinois Municipal Code, the building’s owner is entitled to file a counterclaim seeking the alternative form of relief.

The court then addressed the church’s claims under RLUIPA.  The church claimed that requiring the building to be repaired instead of demolished would cost large sums of money, and would potentially ruin the church financially. The court found that the alleged repair costs could qualify as a “substantial burden” on the church’s free exercise of its religion in violation of RLUIPA if ultimately proved at trial. Further, the court rejected the village’s argument that its property maintenance code was not a “land use regulation” covered by RLUIPA’s protections. The church had alleged that the village’s application of its property maintenance code restricted its use of the land, which the church intended to use as parking for its congregation. The court found these allegations clearly fell within the purview of RLUIPA, and that the church’s claims should not have been dismissed. 

The court also found that the church had a viable unequal treatment claim under RLIUPA.  The village had previously authorized the demolition of several other historic structures for commercial uses, in contrast to its denial of the church’s demolition request. The court found that these allegations of arbitrary enforcement were sufficient to state an unequal treatment claim under RLIUPA.

Finally, the court found that the church had sufficiently alleged an inverse condemnation claim.  The court cited the church’s allegations that the village had effectively denied it the use of the property, even if only temporarily, without instituting an eminent domain action.  The court held that this was all the church was required to allege in order to state an inverse condemnation claim against the village.

Post authored by Kurt Asprooth, Ancel Glink

Wednesday, March 15, 2017

PAC Says Liquor Commission Not Subject to OMA



The PAC recently issued two advisory opinions finding that a Liquor Commission was not a public body subject to the Open Meetings Act. 

In 2016 PAC 43179, a requester had submitted a request for review to the PAC, alleging that the Bloomington liquor commission violated Section 2.01 of the Open Meetings  Act by conducting a special meeting and taking action without a quorum present. The Mayor, who also served as the City's liquor commissioner, conducted the meeting. 

The PAC looked to the definition of “public body” to determine whether the commission is subject to the Open Meetings Act. Section 1.02 of the OMA defines “public body” as: 
“…all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. "Public body" includes tourism boards and convention or civic center boards located in counties that are contiguous to the Mississippi River with populations of more than 250,000 but less than 300,000. "Public body" includes the Health Facilities and Services Review Board. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act, an ethics commission acting under the State Officials and Employees Ethics Act, a regional youth advisory board or the Statewide Youth Advisory Board established under the Department of Children and Family Services Statewide Youth Advisory Board Act, or the Illinois Independent Tax Tribunal.”  5 ILCS 120/1.02.
The PAC also looked to the Liquor Control Act of 1934, which provides that the Mayor “may appoint a person or persons to assist him in the exercise of the powers and the performance of the duties herein provider for such local liquor control commissioner.” 235 ILCS 5/4-2. The PAC found that this language confirmed that a liquor commission only acts to assist the Mayor in carrying out his duties as liquor commissioner, and does not assist him in carrying out his duties as head of the City Council.  As such, the PAC determined that the commission is not an advisory or subsidiary body of a public body such as the City Council and no violation of the OMA occurred.  


The same requester then submitted another request for review, 2016 PAC 42868, alleging that the Bloomington Liquor Commission violated the OMA by holding a meeting that was not open to the public.  The requester also alleged that the members of the commission violated section 1.05 of the OMA by failing to complete electronic training.  The commission responded that the commission is not a “public body” as defined by the OMA, and the PAC agreed.  The PAC looked to its opinion in 2016 PAC 43179, in which it found that the commission is not a public body subject to the OMA.  The PAC followed its previous opinion and again found that a liquor commission is not a public body and no violation of the OMA occurred.  

While these opinions are not binding on any other public body in the state, they do offer some guidance on how the PAC might review similar circumstances.

Post Authored by Erin Baker, Ancel Glink

Monday, March 13, 2017

FOIA Bill Addresses Repeated Commercial Requests


Another FOIA bill has been introduced. House Bill 4003 would amend section 3.1 of FOIA, the "commercial purposes" provision, to allow a public body to deny a request that meets all of the following three parameters:

  1. the request was made for a commercial purpose; 
  2. the request is made by the same person for the same records previously provided; and
  3. the request is made less than 6 months after the previous request.

It is not clear what type of request this bill would cover that isn't already covered by section 3(g) of FOIA. Section 3(g) already addresses repeated requests from the same person and is arguably broader than the new bill since it is not limited to commercial requests or repeated requests made within 6 months. That section provides as follows:
Repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.
We will keep you posted on this bill.

Post authored by Julie Tappendorf

Wednesday, March 8, 2017

Court Finds Park Policy Prohibiting Sex Offenders Unconstitutional


All Illinois local governments that operate public parks should be aware of the recent decision from an Illinois Appellate Court in People v. Pepitone.  In this decision, the Court found a statute prohibiting sexual predators and child sex offenders from entering public parks or park buildings unconstitutional.

In Pepitone, the Court was presented with a challenge Section 11-9.4-1(b) of the Criminal Code of 2012.  Section 11-9.4-1(b) makes it “unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”  The defendant, who had previously been convicted of a child sex offense, was discovered by local law enforcement walking his dog in a public park.  The police officer discovered the defendant’s prior conviction after running his license plate, and arrested him for being a child sex offender in a public park in violation of Section 11-9.41-(b).  After being convicted at trial, the defendant appealed, claiming that Section 11-9.4-1(b) was facially unconstitutional.

The Court began its analysis by noting that Section 11-9.4-1(b) was clearly meant to protect the public from sexual predators and child sex offenders, but the real question was whether the total ban on previously convicted sex offenders from all public parks and buildings was a reasonable method of protecting the public.  The Court noted that two prior decisions had touched on the constitutionality of Section 11-9.4-1(b) and found the ban valid.  However, the Court was not persuaded by these prior decisions, finding their analysis incomplete.

Instead, the Court found Section 11-9.4-1(b) unconstitutional on substantive due process grounds because the statute criminalizes innocent conduct, as a person’s mere presence in a public park building or public park, without more, is not unlawful conduct.  The Court specifically mentioned that the statute not only prohibits the innocent act of walking a dog in a public park, but also prohibits a child sex offender from attending a wide variety of events in public parks such as picnics, concerts, and rallies.  The Court also noted that the statute prohibits a child sex offender from attending a Chicago Bears game or from visiting any of the major museums on the Chicago lakefront because they are located on Chicago Park District property.

Additionally, the Court relied on the fact that that the statute does not require that anyone, particularly a child, even be present in the park or park building for a violation to occur, nor does it attempt to assess the dangerousness of a particular individual or the likelihood of an individual offending again.

Ultimately, the Court found that Section 11-9.4-1(b) is unconstitutional on its face because it is not reasonably related to the goal of protecting the public, especially children, from child sex offenders or sexual predators, and that the statute arbitrarily stripped away the defendant’s rights as a citizen and taxpayer who had already paid the penalty for his crime.

Although the Court found the prohibition contained in Section 11-9.4-1(b) unconstitutional, the Court did not address the constitutionality of a similar provision, Section 11-9.3(a-10), which prohibits a child sex offender from knowingly being present in any public park or park building “when persons under 18 are present in the building or on the grounds and to approach, contact, or communicate with a child of 18 years of age” unless the offender is a parent or guardian of a minor present in the building or park. 720 ILCS 5/11-9.3(a-10).  Although this provision was not before the Court, the Court did reference a prior version of the Criminal Code that contained this exact language. The Court noted that, unlike Section 11-9.4-1(b), the language in Section 11-9.3(a-10) at least attempts to tie the child sex offender’s presence to times that minors are actually present in a public park or park building, and also requires that the offender approach, contact, or communicate with a minor for a violation to occur. 
 
Post Authored by Kurt Asprooth, Ancel Glink
 

Monday, March 6, 2017

PAC Finds No OMA Violation in Advisory Opinion


A long-time reader of the blog forwarded a copy of a recent advisory opinion issued by the Public Access Counselor (PAC) ruling in favor of a public body against a challenge that the body violated the OMA. 2016 PAC 42283
 
According to the opinion, an individual filed a request for review with the PAC alleging that the village board violated the OMA in two respects. First, the complaint alleged that the agenda for the village board meeting did not provide sufficient information to the public as to the action that was taken by the village board in approving a new residential development. Second, the complaint alleged that the board members held secret meetings and discussions outside of a properly noticed meeting to discuss changes to the development plan and approvals.
 
With respect to the first complaint, the PAC determined that the agenda was descriptive enough to comply with section 2.02(c) of the OMA. The agenda listed 3 separate action items relating to the development, including a reconsideration of a previous document, an ordinance granting a special use permit for a planned development, and a resolution approving the development concept plan and subdivision plat. The complainant argued that the agenda was deficient because it did not identify that this was a new 32-lot proposal or that it had been amended from a previously presented 34-lot proposal. The PAC ruled that there was no statutory requirement to identify the plan as new or amended or to otherwise provide more specific details about the plan, and found no violation.
 
As to the second complaint, the PAC determined that there was no evidence that Board members met or discussed the plan in violation of the OMA. The public body's counsel responded to the allegations in a letter to the PAC, reporting that he had discussed the allegations with individual board members and that there was no evidence to support these allegations. Based on these assertions, as well as the fact that the OMA does not apply to work performed by staff members or discussions by less than a quorum of the public body, the PAC found no support for this complaint.
 
Post Authored by Julie Tappendorf