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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

Wednesday, October 17, 2018

Requiring Protesters to Leave LGBTQ Festival Area Violated Free Speech Rights


The Sixth Circuit Court of Appeals recently issued an opinion finding Nashville's requirement that anti-gay protesters move from the sidewalk in the LGBTQ festival area and across the street violated the protesters' free speech rights. McGlone v. Metropolitan Government of Nashville, et al.

The Nashville Pride Festival was held in June of 2015, pursuant to a special events permit issued by Nashville. A group of protesters also showed up to the event with the purpose of protesting the Festival. However, police told them they could not remain on the sidewalk area immediately adjacent to the Festival and would have to move across the street.  Attendees of the Festival were not asked to leave, however. After the Festival was over, the protesters filed suit claiming that the police actions violated their free speech rights under the First Amendment.

The issue for the court was whether Nashville's exclusion of the protesters from the sidewalk area in the park was unconstitutional. The court concluded that the police actions were unconstitutional because there was no evidence that the protesters would interfere with the Festival, leading the court to conclude that the only reason they were moved was because their message conflicted with the Festival's message. Since Nashville couldn't show a compelling government interest for making them move to the other side of the street, the protesters' free speech rights were violated.

Monday, October 15, 2018

Lawsuit Against Transit District Relating to Bus Accident Time-Barred by Tort Immunity Act


Kelley was injured in a multi-vehicle accident that involved a bus operated by a unit of local government (Rides Mass Transit District). She subsequently sued to recover damages, and RMTD filed a motion to have the case dismissed, arguing that Kelley did not file her claim within the one year statute of limitations under the Tort Immunity Act. Kelley, on the other hand, argued that the one year statute of limitations did not apply because of the "common carrier" exception to that statutory time limit for filing a lawsuit against a unit of government. 

The case made its way to the appellate court, which ruled in favor of RMTD. Specifically, the court held that the "common carrier" exception to the one year time limit to file a lawsuit did not apply in this case. Although RMTD was a common carrier, it was not a common carrier to Kelley, because she was not a passenger of the bus when the accident occurred. As a result, the court determined that Kelley's lawsuit was not timely filed, and should be dismissed.  Kelley v. Bonham, 2018 IL App (5th) 170103-U

Tuesday, October 9, 2018

PAC Issues 12th Binding Opinion on "Personnel" Exception to OMA


The Illinois Attorney General's PAC office recently issued its 12th binding opinion for 2018, finding a public body in violation of the Open Meetings Act for improperly discussing its budget, layoffs, and related matters in closed session during a board meeting. PAC Op. 18-012.

A union president filed a complaint with the PAC office alleging that the Board of Trustees of Western Illinois University violated the OMA when it went into closed session to discuss reducing the salaries of all librarians and laying off other employees. The union argued that the discussion of classes of employees rather than specific employees was not within the scope of the OMA exceptions. The University Board responded that the Board did, in fact, discuss specific employees during closed session, and that discussion falls within the scope of section 2(c)(1) of the OMA that authorizes the discussion of compensation, performance, hiring, and dismissal of specific employees. 

The PAC disagreed with the University, finding that although the Board of Trustees did discuss one specific employee during closed session, the majority of the discussion concerned budgetary matters and considerations applicable to categories of employees, which the PAC said was outside the scope of 2(c)(1). The PAC also stated that the discussion of an elimination of a job or position for budgetary reasons unrelated to the performance of the employee does not fall within the scope of 2(c)(1). The PAC concluded that the Board of Trustees' closed session discussion exceeded the scope of the OMA's exceptions, and violated the OMA. The PAC ordered the public body to release a copy of the closed session minutes and verbatim recording, except for that portion that discussed a specific employee.

Although the PAC's opinion regarding budgetary discussions being outside the scope of the OMA's exception is not new (the PAC has issued previous opinions on this issue), the broad statement that a public body cannot discuss the dismissal of a specific employee unless the reason is performance-based seems inconsistent with the unambiguous language of 2(c)(1), which states as follows:
(1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. However, a meeting to consider an increase in compensation to a specific employee of a public body that is subject to the Local Government Wage Increase Transparency Act may not be closed and shall be open to the public and posted and held in accordance with this Act.
The language clearly allows discussion of the dismissal of specific employees without any qualification that the dismissal be performance-related - the statute uses the word "or" between "performance" and "dismissal" and does not contain language that a discussion of the dismissal of an employee be for "performance-related" reasons. This opinion seems to narrow the scope of 2(c)(1) beyond the clear language of that exception.

Friday, October 5, 2018

Quorum Forum Podcast Airs Live From the IML Conference


Episode 10 of our Quorum Forum Podcast is now available. In this episode, we broadcast live from the recent Illinois Municipal League (IML) conference in Chicago and we feature guest speakers from a number of Illinois municipalities and provide highlights from some of the sessions presented by Ancel Glink attorneys. 

You can listen here.

Thursday, October 4, 2018

Homeowners May Not Enforce Terms of Annexation Agreement




A recent Illinois appellate court decision examined who is a “successor in interest” under an annexation agreement and state law.  The result is informative for municipalities and developers seeking to better understand what rights and obligations flow to successors in interest of all or a portion of the property subject to such agreements.  

In 1990, a developer entered into an annexation agreement with a village to develop a subdivision over approximately 828 acres.  The agreement included a requirement that the developer design and construct a storm drain system for the subdivision.  In 2004, Patricia and Brian Doyle contracted with the developer to build a home in the subdivision and approximately three years later the Doyles began to notice their sump pump ejecting water every few seconds during times of rain or heavy snow.  Two years later, in March 2010, the Doyles noticed erosion around the storm drain next to their home causing them to file a drainage complaint with the village.  

After attempting several minor fixes, the village eventually corrected the problem in December 2011 but not before the failed system damaged the Doyles’ home.  The Doyles then brought suit including a claim of negligence against the developer for failing to install a properly working storm drain system.  The Doyles claimed the developer breached its duty under the annexation agreement to install a functioning sewer system and the Doyles had standing to recover because the annexation agreement was binding on “successor owners of record of the Subject Property.”  The trial court dismissed the Doyles’ claim and, on appeal, the First District Court of Appeal agreed. 

In Doyle v. Village of Tinley Park and Malone, the appellate court found that both the annexation agreement, and the Illinois Municipal Code provisions governing these agreements bind successor owners of land subject to an annexation agreement and that any party to such an agreement may bring a civil action to enforce its provisions. However, the Court added that these provisions did not apply to subsequent purchasers of each and every lot in a subdivision.  To do so, the Court explained, would result in absurd results such as a village being able to sue homeowners for a developers failure to construct a working sewer system. 

The court held that the phrases used in the annexation agreement (“successor owners of record of the Subject Property”) and in the statute (“successor owners of record of the land) were intended to only mean those successors who take title to the entire subject property.  If the agreement or statute intended otherwise, the Court wrote, it would have expressly stated that it applied to successor owners of the subject property “or any portion thereof.

The decision has practical implications for parties drafting annexation agreements who are seeking to clarify what provisions will remain enforceable by and against subsequent owners.  As the court pointed out, in order to make provisions of an annexation agreement specifically applicable to subsequent purchasers, the parties must expressly provide say so in the agreement rather than merely relying on generalized assignment and successor in interest provisions.       

Post Authored by David Warner, Ancel Glink         

Wednesday, October 3, 2018

Court Dismisses Challenge to Village's Zoning Approval for a Gun Shop


We reported previously about a lawsuit challenging the Village of Niles' approval of a special use permit to allow the operation of a gun store and indoor firing range in the Village. In an earlier decision, the appellate court reversed the trial court's dismissal of the lawsuit based on lack of "standing", and sent the case back to the trial court for further proceedings.

After the case was sent back to the trial court, the plaintiff filed an amended complaint alleging that the Village's grant of the special use permit was unconstitutional. The trial court again dismissed the case for lack of standing, and the plaintiff again appealed. Last week, the appellate court upheld the dismissal of the case in People for a Safer Society v. Village of Niles.

The plaintiff had argued that the ordinance the Village approved to grant a special use to allow the gun store and indoor firing range was "arbitrary and capricious" and violated the plaintiff's substantive due process rights. The lawsuit also argued that the approval would reduce the value of neighboring properties. In its motion to dismiss, the Village argued that plaintiffs lacked standing because they did not own or reside in property adjacent or adjoining the property. The Village also argued that the complaint did not show any evidence of a special harm to the plaintiffs different than what the general public might suffer.

The appellate court applied a three-part test to determine whether the plaintiff "People for a Safer Society" had association standing to challenge the zoning approval. Although the court determined that the plaintiff showed that the group's interests in suing were consistent with its purposes and that the claim did not require participation of individual members, it did not meet the third factor - that its members would have standing to sue in their own right. Since plaintiff could not show that any of its members had individual standing to sue, plaintiff did not have the standing required to challenge Niles' zoning approval. As a result, the dismissal of the case was appropriate.


Tuesday, October 2, 2018

Exclusive Remedy to Challenge Township Road Tax is Tax Objection Process


A citizen filed a lawsuit to challenge a road tax assessed by an Illinois township. The tax had been approved by residents at a special township meeting. The plaintiff claimed that the tax was illegal because it was imposed in violation of the state tax cap law (PTELL), and that the meeting at which it was approved was not properly noticed and township officials acted inappropriately. 

The circuit court dismissed the case, finding that plaintiff was required to file a tax objection complaint rather than pursue a class action lawsuit. Plaintiff appealed, and the appellate court also ruled against him, finding that the appropriate and exclusive remedy for plaintiff to challenge a tax is through the statutory tax-objection process. Since plaintiff did not avail himself of that procedure, the circuit court properly dismissed his case. Reno v. Newport Township, 2018 IL App (2d) 170967

Monday, October 1, 2018

Ill Supreme Court Upholds Hospital Charitable Tax Exemption


The Illinois Supreme Court recently issued an opinion relating to a hospital's eligibility for a charitable property tax exemption. Oswald v. Hamer, 2018 IL 122203

Oswald, a Cook County taxpayer, had filed a lawsuit alleging that Section 15-86 of the Property Tax Code (which authorizes charitable property tax exemptions) is facially unconstitutional. Oswald claimed that the Illinois Constitution authorizes the state legislature to exempt from taxation only properties that are exclusively used for charitable purposes, yet the statute mandated that hospitals receive a tax exemption even if they were not exclusively used for charitable purposes. 

The Court rejected Oswald's constitutional challenge, finding that Oswald did not meet the burden of showing that the statute was unconstitutional in all applications, and that each hospital would still have to establish that it met the statutory definition to obtain a tax exemption.

Friday, September 28, 2018

City Owes No Duty To Pedestrians Exiting Taxis


Unsurprisingly, in an unreported opinion, the Court has again refused to expand the duty owed by a municipality to pedestrians exiting vehicles, specifically taxis. Decker v. City of Chicago, 2018 IL App (1st) 171066- U

Decker claims he was injured when he exited a legally stopped taxi and stepped onto a crumbling and eroding curb and sued the City of Chicago. The City filed a motion to dismiss arguing that the curb where Decker fell was located outside of the sidewalk, so Decker was not an intended user of the curb. The Court agreed with the City, and dismissed the case and Decker appealed.

As background, Section 3-102 (a) of the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) imposes a duty on municipalities only where the person injured is an intended and permitted user of the property controlled by the municipality. The general rule in Illinois is that a municipality does not owe a duty to pedestrians who walks or crosses in a public roadway outside of a crosswalk. The reasoning is that streets are intended for cars and not for pedestrians. The Supreme Court has, however, recognized a very narrow exception which concerns only the permitted and intended use of the street immediately around a legally parked vehicle by its exiting and entering vehicle operators and passengers.  Decker argues that the taxi stopping to drop him off was essentially a legal stopped vehicle, meaning he fell within this narrow exception and the City was liable for his injuries. The Court disagreed.

The following factors are considered in determining whether a duty is owed by a municipality: (1) the foreseeability that the municipality’s conduct will result in injury; (2) likelihood of injury; (3) magnitude of guarding against it; and, (4) the consequences of placing that burden upon the defendant. The Court here ultimately concluded that while it was entirely possible that an injury like Decker’s would occur to people getting into or getting out of a taxi, the burden of requiring municipalities to maintain the areas surrounding a legally stopped taxi would be unduly expensive and burdensome. Plus, taxis can stop anywhere and by expanding the duty to any location a taxi decides to stop would swallow the intended user rule of Section 3-102(a) because it would allow taxi cab drivers to create a municipal duty of care where one does not exist every single time they drop off a passenger.

Decker v. City of Chicago is not the first, nor will it be the last case to try and convince the Court to expand the narrow rule involving the duty owed to a person exiting and/or entering a vehicle. Stay tuned…

Post Authored by Christy Michaelson, Ancel Glink

Thursday, September 27, 2018

New Quorum Forum Podcast on Elections Just Released


It’s time for a new Quorum Forum podcast episode - Election Special! Local Election Officials

In this "special meeting" episode, we discuss how local election officials can prepare for the 2019 local government election cycle. In addition to sharing our top election tips, we have also provided a useful “Receipt for Filing Nominating Papers” form, available on the episode page at quorumforum.ancelglink.com.

Don’t forget to share your questions and show ideas with us at podcast@ancelglink.com.

Wednesday, September 26, 2018

Ordinance Prohibiting Homeless from Sleeping in Public Places is Unconstitutional


A federal court of appeals recently found a City ordinance that made it a crime to camp on public and private property to be in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.  Martin v. City of Boise, No.15-35845 (9th Cir. Sept. 4, 2018).

A Boise, Idaho ordinance outlawed the use of any streets, sidewalks, parks, or public places for camping as well as occupying, lodging or sleeping in any private or public building without the permission of the owner.  It was later amended to apply only on nights when there were no available beds in local shelters.  After plaintiffs were arrested under the ordinance, all of whom were homeless at the time, they filed a lawsuit claiming that the law was unconstitutional because it criminalized the mere conduct of sitting, lying and sleeping in public. 

The Ninth Circuit Court of Appeals agreed, finding such conduct to be a universal condition of being human and an unavoidable consequence of being homeless.  The court relied on the United States Supreme Court’s decision in Robinson v. California which declared unconstitutional a state statute making it a crime to be addicted to narcotics because it criminalized the status of being an addict, rather than the conduct emanating from the addiction.  Similarly, the Boise ordinance punished individuals for engaging in activities that were unavoidable on nights when there were no other available alternatives due solely to their status as homeless persons.  

While this decision applies only in the Ninth Circuit, it mirrors decisions in other federal district courts and may be instructive as to how the Seventh Circuit might treat challenges to similar municipal ordinances in Illinois, including cases brought under the State’s Bill of Rights for the Homeless Act.

Post Authored by David Warner, Ancel Glink

Monday, September 24, 2018

Cook County $750 Political Contribution Limit Upheld



Cook County has enacted an ethics ordinance governing various activities involving Cook County elected and appointed officials and employees. That ordinance also places a $750 cap on political contributions by individuals and companies that do business with Cook County. After being fined by the Cook County Ethics Commission for receiving political contributions in excess of the ethics ordinance, Cook County Assessor John Berrios filed a lawsuit to challenge the ordinance, claiming that the ordinance exceeded the County's home rule powers, infringed on First Amendment protected speech, denied candidates due process, and violated public policy, among other allegations.

The circuit court ruled in favor of the County, rejecting Berrios challenges to the ethics ordinance. Berrios appealed, and the appellate court also upheld the ordinance. Berrios v. Cook County Board of Commissioners, 2018 IL (1st) 180654. The appellate court found the ordinance did not violate or impinge on any First Amendment protected rights. The court also found the County was not preempted by state election law in enacting its own stricter political contribution limits. Finally, the court determined that the ordinance did not violate Berrios' due process rights, rejecting his "selective enforcement" argument.

Post Authored by Julie Tappendorf

Wednesday, September 19, 2018

Reminder of Deadline to Modify Elected Official Compensation


We have reported on this issue in the past, but wanted to send another reminder this year since we are approaching the deadline to change your elected official's compensation in time for next spring's election.
Section 2 of the Local Government Officer Compensation Act states that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.”  50 ILCS 145/2.  While the 180 day calculation seems simple, the actual date will differ depending on the type of government unit.

For example, for townships, it is easy to calculate the 180 days, because all township officials, except assessors, take office on the third Monday in May (May 20, 2019), so the deadline to set compensation for elected township officials is November 21, 2018.  60 ILCS 1/50-15.  

The deadline for setting compensation is more complicated with other local governments that do not have fixed dates for their officers taking office. 

For municipalities, the Illinois Municipal Code states that terms for municipal elected officials commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but then that ordinance cannot fix the date later than the first regular or special meeting in the month of June after the election.  65 ILCS 5/3.1-10-15. So, the date on which new municipal officers will take office will vary from municipality to municipality, depending on local ordinances, meeting dates, and other factors. As a result, a municipality might want to act soon if it wants to change the compensation for its elected officials to ensure that the action takes place at least 180 days prior to the new officers taking office, which could be in April, May, or June.

Post Authored by Julie Tappendorf

Tuesday, September 18, 2018

FCC Releases Small Wireless Facilities Draft Order



On September 5, the Federal Communications Commission (FCC) released a draft Declaratory Ruling and Third Report and Order, focusing on state and local management of small wireless facilities infrastructure deployment. The draft order is scheduled for the FCC’s September 26 open meeting, and if approved would enact substantial new limits on local wireless siting review.

You can read more about the draft order on the Illinois Municipal League's website here

Monday, September 17, 2018

A New Take on Takings?




Rose Mary Knick was not happy with her local township. The township passed an ordinance requiring the owners of private cemeteries to open them to the public. A township official inspected Knick’s property, determined that certain stones were grave markers, and issued a violation for failing to hold open the cemetery to the public. Knick disputed that a cemetery existed on her property, and filed suit alleging that the ordinance was an unconstitutional taking of private property. However, Knick’s federal lawsuit was dismissed on longstanding Supreme Court precedent, as she had not yet sought “just compensation” under state law.

Under the Fifth Amendment, governments are prohibited from taking private property for public uses “without just compensation.” Takings under the Fifth Amendment are a concern whenever local governments physically occupy private property or enact laws that restrict how private property can be used.  

The Supreme Court case of Williamson County v. Regional Planning Commission v. Hamilton Bank of Johnson City (1985) has long governed Fifth Amendment takings claims. In Williamson County, The Supreme Court held that a property owner has not been denied “just compensation” for its property unless they have exhausted their state law remedies to obtain compensation. Now, Knick’s case may upend over 30 years of Supreme Court precedent.

On appeal to the Third Circuit, Knick argued that her facial takings claim was exempt from the exhaustion requirement, and, even if it wasn’t, the court should overlook Williamson County.  The Third Circuit disagreed, finding that her takings claim was not an underlying challenge to the validity of the township’s ordinance, but only a claim for just compensation.  Knick did not allege that that the taking by the township was invalid (i.e, for lack of a public purpose). If she had, her takings claim would be exempt from the state law exhaustion requirement and she could file directly in federal court. The Court held that state law inverse-condemnation mechanisms are better equipped to value what compensation Knick was owed, and that she needed to exhaust those remedies first.

Knick has now brought her dispute with her township to the highest court in the land, and oral arguments are set for October. While Knick’s case turns on seemingly mundane procedural issues, the outcome could have a significant impact on local governments. If the Supreme Court sides with Knick, it will become much easier for property owners to challenge land use regulations as takings. A property owner could file suit directly in federal court, even when the government has not yet refused to pay just compensation. State law remedies (eminent domain/inverse-condemnation proceedings), already exist to ensure just compensation is paid. Allowing these claims to proceed in a second forum may result in a proliferation of takings lawsuits.  It will all turn on Knick and her supposed cemetery.

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, September 13, 2018

FOIA Denial Letters: Don’t Forget to Include Citations and Reasons for Denial!




In Blanco v. Joliet Police Department, after Blanco was arrested by the Joliet Police Department, he sent a FOIA request to the PD asking for any documents and recordings related to his arrest. The PD denied his request under the Juvenile Court Act, and Blanco sued.

Blanco claimed that the PD failed to cite a FOIA exemption and did not prove that the requested records were exempt.  He sought the release of the records and a civil penalty of up to $5,000.  In response, the PD argued that the Juvenile Court Act applied because Blanco was with two minors at the time of his arrest.  The PD also stated that the records contained exempt personal information under 7(1)(c) and 7(1)(d)(iv) of FOIA. The PD further cited 7(1)(a) which prevents disclosure of information prohibited by law and 7(1)(bb), which prevents disclosure of information prohibited by the Juvenile Court Act.  The Circuit Court agreed with the PD and dismissed the case.

Blanco appealed, arguing: 1) the PD failed to comply with FOIA’s requirement that the denial letter include a specific exemption claimed and a detailed factual basis and citation, 2) the PD should have been fined a civil penalty for failing to disclose the requested documents, and 3) the Juvenile Court Act does not prohibit the disclosure of these documents. 

The Court acknowledged that the PD’s denial letter raised questions of whether it complied with FOIA by specifying the exemption and specific reason for the denial. However, the Court noted that even assuming that the denial letter did not comply with FOIA, it is not automatic that the requester would be entitled to have the documents released to him. The Court found that without the record or transcripts on appeal (Blanco failed to provide those to the Appellate Court), it had no way of knowing what happened in the circuit court, so it upheld the Circuit Court's ruling in favor of the PD. 

While the PD was able to get out of possible penalties because of Blanco's procedural deficiencies, this case is a reminder to public bodies of the importance of including the citation for the applicable exemption and detailed factual reasons why it denied the request (whether in whole or in part) when it issues the written denial letter.

Post Authored by Erin Pell, Ancel Glink

Tuesday, September 11, 2018

PAC Issues Binding Opinion on Failure to Respond to FOIA Request


In its 11th binding opinion of 2018, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request, and failing to respond to the PAC's request for review. This opinion doesn't offer any new guidance to public bodies beyond what we've reported on in the past in summarizing similar binding opinions issued by the PAC. PAC Op. 18-011.

Monday, September 10, 2018

Drone On! New Quorum Forum Podcast Episode Released


Whether you think drones are pretty cool, or really creepy, they are increasingly used in commerce and recreation. In our latest podcast episode of Quorum Forum, we discuss how local governments can regulate drones, and appropriately use drones. We also review new laws affecting local government employers and more. 

Tune into this latest podcast episode at Drone on!

If you have ideas for future podcast topics, email us at podcast@ancelglink.com. 

Friday, September 7, 2018

New State Law Preempts Local Government Regulation of Drones


Just last month, the Illinois General Assembly passed a law preempting local government regulation of unmanned aircraft systems (commonly referred to as drones). 

In P.A. 100-735, the state declared that the regulation of drones is an "exclusive power and function of the State." The new law prohibits any unit of local government, including home rule units (except Chicago), from enacting any ordinance or resolution that regulates unmanned aircraft systems. The law became effective August 3, 2018.

So, what does this mean for Illinois local governments? The law does not seem to prohibit units of local government from controlling or regulating drones that fly over their own government-owned property, which would be more of an "ownership" exercise of authority rather than "regulatory" exercise. But, the law does appear to hinder a local government from regulating drones through its exercise of zoning or other powers over private property.

It will be interesting to see how the FAA will react to this state law given that the FAA has enacted a substantial number of regulations on unmanned aircraft systems. 

For more information about this new law and how it affects local government regulation and control of drones, stay tuned for an upcoming episode of our podcast Quorum Forum, titled Drone On. We will update you as soon as that episode is released.

Tuesday, September 4, 2018

7 Years of Municipal Minute!


7 years ago, on September 3, 2011, Municipal Minute went live with its first post:  "Tweeting into Trouble." More than 1,400 posts later, and we are still reporting on new cases, legislation, and issues of interest to local government officials and employees. 

We welcome suggestions from our readers on future topics, and particularly appreciate it when readers alert us to PAC opinions or cases they find interesting and relevant to Municipal Minute.

Thanks for continuing to check in with us at Municipal Minute - we look forward to at least another 7 years of reporting on local government news.

Thanks again!
Julie Tappendorf
Ancel Glink

Thursday, August 30, 2018

PAC Orders Release of Unredacted Copy of Settlement Agreement


In PAC Op. 18-010, the PAC found a public body in violation for FOIA for not disclosing the details about claims that were the subject of a settlement agreement.

A union organization filed a FOIA request seeking records pertaining to a settlement agreement between a school district and its former principal. The district provided a redacted copy of the settlement agreement but did not cite an exemption for the redactions in the initial response. In a supplemental response, the district cited 7(1)(c) claiming that the redacted information was protected because release would constitute an unwarranted invasion of personal privacy.

The union appealed to the PAC, which reviewed the unredacted copy of the agreement. The PAC noted that the redacted information described the nature of the principal's allegations against the district in broad, general terms but did not detail any circumstances or events giving rise to the allegations. The PAC rejected the district's argument that the issues surrounding the allegations were sensitive and highly personal in nature, and determined that the public had the right to see the terms that led to the district paying a settlement to the former employee in exchange for his resignation. The PAC concluded that the redacted information was not exempt under 7(1)(c) of FOIA and ordered the district to release an unredacted copy of the settlement agreement. 

Wednesday, August 29, 2018

Amendments to Library District Trustee Qualifications



Illinois recently enacted P.A. 100-0746 which amends the Public Library District Act of 1991.

The new law provides that a person is not eligible to serve as a library trustee in a library district unless:
  • he or she is a qualified elector of the library district; and 
  • has resided in the library district at least one year at the time he or she files nomination papers or a declaration of intent to become a write-in candidate or is presented for appointment.

 In addition, a person is not eligible to serve as a library trustee for a library district if:
  1. at the time of his or her appointment or filing of nomination papers or a declaration of intent to become a write-in candidate, is in arrears in the payment of a tax or other indebtedness due to the library district; or
  2.  has been convicted of any infamous crime, bribery, perjury, or other felony.

This law applies to trustee candidates who file nomination papers by petition or write-in candidates in the Consolidated Election of 2019 and to all appointees to a vacant trustee position who are appointed after the effective date of this amendment.

The law took effect immediately upon becoming law on August 10, 2018.

Tuesday, August 28, 2018

7th Circuit Upholds Smart Meter Program Against Constitutional Challenge


A group of concerned citizens sued the City of Naperville claiming that the City's smart meter program constituted an illegal search under both the U.S. and Illinois constitutions. Specifically, the citizens argued that the City's collection of data and recording of energy consumption levels at individual homes through the smart meters reveals "intimate personal details of the City's electric customers." The district court had dismissed the complaint and denied the citizens request to amend their complaint. The citizens appealed to the Seventh Circuit Court of Appeals. In a recent decision, the Seventh Circuit found that (1) the smart meter program was a search under the constitution but that (2) the search was reasonable. Naperville Smart Meter Awareness v. City of Naperville, 7th Cir. Aug. 16, 2018.

In determining that the smart meter program was a search, the Seventh Circuit looked at the type of data the program collected. Specifically, the smart meter program collected data at 15 minute intervals, and that data could be used by law enforcement to conclude that an occupant was, for example, using halide lights to grow marijuana based on the amount of energy coming from the home. 

The court did not stop the analysis there, however, Although the program constituted a "search," if that search was "reasonable," then the City could collect the data without a warrant. In this case, although residents have a privacy interest in their energy consumption data, the data is not collected for "prosecutorial intent." Moreover, the City's interest in collecting the data through the smart meter program was in furtherance of the City's modernization of the electrical grid, an important government interest of both the City and the federal government. Monitoring energy consumption is important in reducing outages and strain on the energy grid, as well as reducing costs to consumers, among other important government interests. The court rejected the citizens' argument that the search was unreasonable in this case because the City requires installation of smart meters. 

In sum, although the City's smart meter program was considered a "search," the court found that it was a reasonable one and does not require a warrant.

Post Authored by Julie Tappendorf

Monday, August 27, 2018

New Publication Requirements for Severance Agreements


In January, we reported on HB 4242 that would amend FOIA to require units of local government  to publish notice within 72 hours of approving a severance agreement involving the payment of money to a government employee or contractor accused of sexual harassment or sexual discrimination. 

Last week, HB 4242 was enacted into law as P.A. 1040, with an effective date of August 23, 2018. The approved version of this legislation is changed from what was originally introduced and reported on by Municipal Minute.  We have included a summary of the law in the form enacted below.

As enacted, the law requires the local government to (1) post notice on the government's website and (2) make available to the news media for inspection and copying the following information about the severance agreement and payment within 72 hours of approving the severance agreement:
  1. the name and title of the person receiving the payment;
  2. the amount of the payment; and
  3. that the person receiving payment has been found to have engaged in sexual harassment or sexual discrimination (the original bill only required accusation of this conduct); and
  4. the date, time, and location of the meeting at which the separation or severance agreement was approved.
The new requirements are incorporated into the Local Records Act, the statute that governs records retention and preservation by local governments. (The earlier version of the bill would have amended Freedom of Information Act.) 

Also new in the enacted version are certain exceptions that allow the local government to withhold the information if disclosure would:

1. interfere with pending or actually and reasonably contemplated law enforcement proceedings;
2. interfere with pending or actually and reasonably contemplated legal or administrative proceedings initiated by the complainant;
3. result in disclosure of the complainant's identity (unless he or she consents); or
4. endanger the life or physical safety of the complainant.

The law states that the law does not supersede confidentiality provisions of the severance agreement but also does not limit disclosure of records required to be disclosed under FOIA. It's not clear how these two provisions work in the context of the remainder of this statute or even with each other.

Any local government approving a severance agreement that falls within this new law would be advised to consult with its attorney to ensure compliance with these new requirements, whether that means disclosure of the required information or determination that one of the exceptions apply.

Friday, August 24, 2018

Illinois Legislature Amends Governmental Account Audit Act



Recently, amendments to the Governmental Account Audit Act became law when they were approved by the Illinois Governor on August 13, 2018. P.A. 100-837.

Under the new law, a government may file an audit report based on a government's selection of the accrual, cash, or modified cash basis of accounting.  This new law is in response to the Office of the  Illinois Comptroller’s change of practice to require audited financial statements using accrual basis accounting. This law clarifies that local governments can continue submitting audited financial statements with the Comptroller’s Local Government Division using cash basis accounting. However, local governments who file audited financial statements using accrual basis accounting after June 30, 2019 will be required to continue filing audited financial statements using accrual basis accounting.

This Act took effect immediately upon becoming law on August 13, 2018.

Post Authored by John Reding and Julie Tappendorf

Thursday, August 23, 2018

Changes to Non-Resident Library Fees



On August 14, 2018, the Illinois General Assembly enacted P.A. 100-0875, which amends both the Illinois Local Library Act and the Public Library District Act of 1991.

Under the new law, a nonresident fee will not be applied to a nonresident who owns or leases property that is taxed for library service. Prior to the enactment of this law the nonresident fee was only waived for the actual owner of the taxable property instead of those who also lease property. The nonresident owner or leaseholder must present either the most recent tax bill for the property or a copy of the commercial lease.

The law also removes the limit of nonresident library privileges to only one nonresident for each parcel of taxable property. Now, multiple nonresident owners or lessors at a single property are able to use library services.

This Act took effect immediately upon becoming law on August 14, 2018.

Post Authored by John Reding and Julie Tappendorf, Ancel Glink

Wednesday, August 22, 2018

Illinois Supreme Court Issues Ruling in Sidewalk Case




Recently, the Illinois Supreme Court decided whether the Tort Immunity Act immunized the City of Danville from liability for failing to repair a sidewalk. Monson v. City of Danville.

In 2012, Barbara Monson was shopping in the City of Danville. As she was walking on the sidewalk she tripped and sustained multiple injuries. Plaintiff sued the City for negligence and willful and wanton conduct for failing to maintain the sidewalk in a reasonably safe condition.

Prior to her injuries, in 2011 two City employees, the superintendent of downtown service and the director of the public works department, began a project to repair sidewalks in the downtown area. The public works director made the final decisions about which sections of sidewalk would be repaired. The director testified that he used his discretion as the public works director not to replace the portion of sidewalk where Monson was injured.

The trial court ruled in favor of the City, finding the City immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act. Sections 2-109 and 2-201 of the Act immunize a public entity from liability for the discretionary acts or omissions of its employees. Plaintiff appealed the decision up to the Illinois Supreme Court which recently reversed the ruling in favor of the City.

The City had argued that the City’s alleged acts or omissions were discretionary under 2-201 of the Tort Immunity Act because the decision to repair certain portions of the sidewalk and leave other portions alone was a matter of policy within its employees’ discretion. But the Court held that while decisions involving repairs to public property can be a discretionary matter subject to immunity, in this case, the City had not met its burden of establishing that the alleged acts or omissions constituted an exercise of discretion within the meaning of section 2-201.

The City also asked the Court to uphold the lower court’s order on the basis that the allegedly defective sidewalk was de minimis. However, the Court concluded that genuine issues of material issues of fact exist with respect to whether the sidewalk defect was de minimis and as a result the City was not entitled to a judgment as a matter of law on this issue.

The case now goes back to the trial court to rule on the City's argument that the defect was "open and obvious."

Post Authored by John Reding and Julie Tappendorf, Ancel Glink

Tuesday, August 21, 2018

Law Restricts Posting of Mugshots on Police Social Media Sites


The Illinois General Assembly recently enacted P.A. 100-927 which prohibits police departments from posting mugshots on their department's social media site that were taken in connection with a civil, petty, or business offense or a Class B or C misdemeanor except where the posting of the mugshot is for the purpose of assisting in the search for a missing person or for an individual wanted in relation to a crime. 

Post Authored by Julie Tappendorf


Monday, August 20, 2018

Podcast Episode 8 Just Released: Unions Dues and Don'ts



Ancel Glink's Quorum Forum Podcast just released Episode 8 titled "Union Dues and Don’ts." You can listen to this episode on our Quorum Forum website here.  

Below is a summary of the episode:

In the past, public employees refusing to join the union were often required to pay “fair share” fees, sometimes amounting to 80% of a full union member’s dues. That recently changed with the Supreme Court’s decision in Janus v. AFSCME. In Episode 8, Ancel Glink attorneys talk about this important case, among other employment-related issues of importance to local government officials and employees.

Local government employers and employees can read more about this decision at workplacereport.ancelglink.com.

Don't forget to send questions and show ideas to podcast@ancelglink.com!

Friday, August 17, 2018

Elected Township Officials Prohibited From Being Employed by Township


Given the activity at the Illinois General Assembly, we will have a number of new laws to report on over the next few days/weeks. Today, we report on a new law affecting elected township officials.

Pursuant to P.A. 100-868, township officials who are elected to a township position (or appointed to fill a vacant elected position) are prohibited from also being employed by the township. The prohibition applies to township trustees, supervisors, highway commissioners, clerks, assessors, and collectors. The law becomes effective January 1, 2019.

Post Authored by Julie Tappendorf

Thursday, August 16, 2018

Facebook Post Threatening Witnesses Costs Poster $17,000 in Sanctions


In a recent lawsuit that alleged employment discrimination and retaliation against a government employer, the court ordered the plaintiff to pay just under $17,000 in sanctions for posting threats on Facebook targeted at potential witnesses in her lawsuit. Emerson v. Dart, (7th Cir. Aug. 14, 2018).

Emerson, a correctional officer in Cook County, Illinois, filed a lawsuit against the County alleging retaliation in violation of her civil rights suit. The case proceeded to discovery. Shortly after learning the County was questioning co-workers as potential witnesses, she posted to a Facebook group shared by more than 1,600 employees of the Cook County Department of Corrections the following:
To my fellow officers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES, (1) IS A SGT, (2) OFFICERS, (1) OPR INVESTIGATOR, on the job 18mths, this fight is from 2009 & I’ve been off since 2012, sooooo do the math. Yes, I will definitely put your name out there in due time [emoji]. This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL. SO GLAD THAT THE ARROGANCE OF THIS EMPLOYER HAS THEM BELIEVING THEIR OWN [emoji]
The County asked the judge for sanctions against Emerson for witness tampering. The circuit court  ruled in the County's favor and ordered Emerson to pay just short of $17,000 in sanctions to the County (the amount the County incurred in attorneys' fees relating to the misconduct). 


On appeal, the Seventh Circuit Court of Appeals upheld the sanctions award, finding Emerson's Facebook post to be a "bald effort to keep witnesses from testifying." The appellate court also upheld the amount of the sanction, finding the County's report of time spent litigating the sanctions issue to be acceptable.

Facebook may be "free," but that doesn't mean certain conduct on Facebook won't cost you.

Post Authored by Julie Tappendorf

Wednesday, August 15, 2018

Government Severance Pay Act Becomes Law in Illinois


Yesterday, the Government Severance Pay Act became law when it was approved by the Illinois Governor. P.A. 100-895. We reported on this legislation when the bill was introduced earlier this year.

Under the new law, any covered unit of government that enters into a contract or employment agreement, or renews or renegotiates an existing contract or agreement, with an officer, agent, employee, or contractor must include the following provisions in the contract:

(1) a requirement that severance pay may not exceed an amount greater than 20 weeks of compensation; and
(2) a prohibition on payment of severance pay if the individual has been fired for misconduct by the unit of government.

Misconduct is defined in the new law to include, among other things, the following:
  • conduct that is a deliberate violation or disregard of reasonable standards of behavior of an employee
  • intentional and substantial disregard of the employer's interests or the employee's duties
  • chronic absenteeism or tardiness in deliberate violation of known policy after a reprimand
  • willful and deliberate violation of a state standard or regulation
  • violation of the employer's rules
  • other conduct, including criminal assault or battery on an employee, customer, invitee or abuse or neglect of someone under the employee's professional care.
The Act applies to all state agencies, units of local government (i.e., counties, municipalities, townships, special districts), school districts, and other bodies created by state statute or state constitution.

The new law does not appear to apply to existing employment agreements between government bodies and employees, although a unit of government would have to comply with the new contractual requirements when renewing or renegotiating an existing employment agreement. That will certainly affect the negotiations between employers and employees in any renewal of an existing employment agreement that includes a severance pay provision in excess of 20 weeks.

The text of the new law (without definitions) is set out below:
Section 10. Severance pay.

(a) A unit of government that enters into a contract or employment agreement, or renewal or renegotiation of an existing contract or employment agreement, that contains a provision for severance pay with an officer, agent, employee, or contractor must include the following provisions in the contract:
     (1) a requirement that severance pay provided may not exceed an amount greater than 20 weeks of compensation; and
    (2) a prohibition of provision of severance pay when the officer, agent, employee, or contractor has been fired for misconduct by the unit of government.
(b) Nothing in this Section creates an entitlement to severance pay in the absence of its contractual authorization or as otherwise authorized by law.
The law takes effective January 1, 2019.

Post Authored by Julie Tappendorf

Monday, August 13, 2018

Top 10 Posts of 2018 To-Date


It's been awhile since we've done a "top 10" list of the most popular blog posts. Today, we highlight the 10 most read posts of 2018, to-date, with a few updates:

Bill Would Prohibit Use of Public Funds For Employee Professional Development and Training Expenses

Update: This was by far the most read post of 2018, and the one that generated quite a bit of feedback from Illinois government officials and employees. As of 8/6/18, this bill doesn't seem to be active since it was referred to committee on 1/16/18. 

President's Blocking of Twitter Users Found Unconstitutional

Update: The White House unblocked the Twitter users following this ruling, but also appealed the decision, so stay tuned for a follow up.

Bill Proposes Local Government Email Act

Update: This bill had sat in committee since April until a couple of weeks ago when a new co-sponsor was added so there may be some life to this bill.

New OMA and FOIA Bills Introduced

Update: Neither of these bills have seen any activity or movement since April/May.

Teacher Fired for Social Media Posts About Student

Police Officers' Emails on Private Devices Subject to FOIA

Alderman Texts and Emails on Private Devices Not Subject to FOIA

City Not Liable for Flooding on Residents' Property

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

New Law Allows Website Posting for Prevailing Wage Ordinances


Friday, August 10, 2018

From The Workplace Report: NLRB Offers New Guidance Regarding Employee Handbooks



From Ancel Glink’s sister employment law blog, The Workplace Report With Ancel Glink: NLRB Offers New Guidance Regarding Employee Handbooks.

NLRB General Counsel Peter Robb recently issued a memorandum outlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision (365 NLRB No. 154 (Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here.

The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules.

Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh any relatively insignificant restrictions on those rights. Some of the examples mentioned in the memo include:
  • Rules prohibiting uncivil behavior (like the use of disparaging or offensive language)
  • No-photography rules and no-recording rules
  • Rules against insubordination or other on-the-job conduct that negatively affects the workplace
  • Disruptive behavior rules (like creating a disturbance or causing problems with clients or co-workers)
  • Rules protecting confidential, proprietary, and customer information or documents
  • Rules against defamation or misrepresentation
  • Rules against using employer logos or intellectual property
  • Rules requiring authorization to speak for the company
  • Rules banning disloyalty, nepotism, or self-enrichment
Category 2 (Case-by-Case) Rules: These rules are not clearly lawful or unlawful. Rather, the employer’s and employees’ interests must be weighed on a case-by-case basis to determine whether the rule is justified. Examples of such rules include:
  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in or voting for a union
  • Confidentiality rules regarding employer business or employee information (as opposed to confidentiality rules regarding customer or proprietary information [which are generally lawful], or confidentiality rules directed at employee wages, terms of employment, or working conditions [which are generally unlawful])
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of fellow employees)
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark)
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations)
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)
Category 3 (Unlawful) Rules: These rules are generally unlawful because they restrict the employees’ rights severely enough to outweigh any potential employer justifications for them.  The memo provides only two examples of rules that fit this category:
  • Confidentiality rules specifically regarding wages, benefits, or working conditions
  • Rules against joining outside organizations or voting on matters concerning the employer
Although these guidelines do not apply to government employers, state labor boards often refer to NLRB guidelines and rulings in evaluating government rules. So, it might be worth taking a look at your employee handbook to see if you need to update or modify it.


Original Post Authored by Matt DiCianni, Ancel Glink

Thursday, August 9, 2018

School Security Agent Not Entitled to PSEBA or PEDA Benefits


In a recent case, an appellate court denied PSEBA and PEDA benefits to a school security agent/truant officer, finding that the school employee was not a "law enforcement officer" entitled to benefits under either state law. Stimeling v. Peoria Public Sch. Dist. 150.

The Peoria Public School District employed security agents as part of the school's "police department." After learning that it had no authority to operate a police department, the District inactivated the police department and stopped providing police training to its security agents. One of its security agents incurred an injury while on duty, and filed for benefits under the Public Safety Employee Benefits Act (PSEBA) and the Public Employee Disability Act (PEDA). The District denied the request, and the employee filed a lawsuit, arguing that he was a "law enforcement officer" under both statutes and was, therefore, entitled to benefits.

Both the trial court and the appellate court ruled against the employee, finding that he was not a police officer or law enforcement officer under either statute. The appellate court noted that the District was not statutorily authorized to establish a police department or to employ law enforcement officers. As a result, the employee was not an eligible employee entitled to benefits under either statute.


Wednesday, August 8, 2018

Did You Hear the One About the Priest Who Walked into a Bar?



For decades, the Illinois Liquor Control Act contained restrictions against locating a new licensed establishment in proximity to a church or school.  235 ILCS 5/6-11.  Despite this restriction, Section 6-11 of the Liquor Control Act also contained dozens of exceptions to this rule which were enacted by the General Assembly and approved by a sitting Governor.  That’s right – each time a business which planned to sell beer, wine or liquor wanted to operate near a church or school, it took an act of the legislature to grant permission.

Finally, by broad bipartisan votes, the State of Illinois has granted local liquor control commissioners the ability to relax this restriction.  Public Act 100-663, which became law last week, allows a local liquor control commissioner to grant an exemption to the prohibition if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.

So, if a community wants to exercise greater local control, it must adopt an ordinance that delegates authority to the Mayor or Village President (local liquor commissioner) to grant exceptions to the proximity rules described in Section 6-11. The law does not describe any limitations on the scope of local control, so the exceptions granted by the local liquor commissioner may be partial or complete and can be subject to conditions.

Post authored by Adam Simon, Ancel Glink

Tuesday, August 7, 2018

City and Park District Not Liable for Alleged Defective Design of 606 Trail



Guzman was running on the Bloomingdale Trail (also known as the “606 Trail”) when a bicyclist struck her from behind and she was injured. Guzman sued the Chicago Park District, the City of Chicago, the bicyclist that struck her as well as Collins Engineering, the project manager for the development of the 606 Trail.

The Park District argued the case should be dismissed Section 3-106 of the Illinois Tort Immunity Act. That statute says that a public entity or employee will not be liable for an injury if the claim is based on a condition of any public property intended or permitted to be used for recreational purposes except where the public entity is guilty of willful and wanton conduct. The circuit court agreed and dismissed the case, and Guzman appealed.

Although Guzman admitted that the 606 Trail is public property used for recreational purposes, she argued that the design of the trail was too narrow to provide sufficient space for users to pass one another, is not a “condition” within the meaning of the Tort Immunity Act. Guzman specifically argued that the term “condition” refers to things that are actually on the trail itself, such as snow, but her argument was that the 606 Trail design was defective.

On appeal, the appellate court examined a series of cases where the claims were not based on activities conducted on recreational property, but rather based on the recreational property’s design or construction, including claims that a sidewalk was built too high, a midblock crosswalk was negligently misplaced and that a golf box tee was placed in a dangerous location for spectators.  In all of these cases, courts have found that immunity applied to bar lawsuits related to the construction of recreational property. Based on these cases, the court that the Tort Immunity Act barred Guzman’s claims of defective design and both the Park District and City of Chicago were immune from liability.


Post Authored by Christy Michaelson, Ancel Glink