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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

Friday, June 22, 2018

Employee's Disciplinary Records Exempt Under FOIA

In a recent appellate court decision, an Illinois court upheld a municipality's denial of a FOIA request asking for the "disciplinary history" for a city employee. Johnson v. Joliet Police Department, 2018 IL App (3d) 170726.

The requester had asked for the disciplinary history for a city employee. The city denied the request, citing section 8 of the Personnel Records Review Act that prohibits the release of disciplinary records of a government employee that are more than 4 years old, and that it had no disciplinary records for the period within the prior 4 years. The requester sued, arguing that the statute does not apply to FOIA requests. 

The circuit court ruled in the city's favor and the requester appealed. The appellate court agreed with the circuit court, finding the requested records expressly exempt from FOIA under section 7.5(q) of FOIA that states that records prohibited from release under the Personnel Records Review Act are exempt from FOIA. The court distinguished between citizen complaints (that depending on the nature of the complaint may not be exempt) and disciplinary records (which are expressly exempt from FOIA).

Monday, June 18, 2018

Federal FOIA Does Not Authorize Lawsuits Against Individual Government Employees

A federal circuit court of appeals ruled in favor of a government agency in a lawsuit challenging the agency's response to a request under FOIA for certain government records. Henson v. Department of Health and Human Services (7th Cir. June 15, 2018).

First, the court held that the federal FOIA does not provide a cause of action against individual employees of the agency. The court noted that the federal FOIA gives jurisdiction to the courts to order the agency to produce agency records, and an individual employee is not an "agency" defined by the statute. Second, the court found that the agency had conducted an adequate and reasonable search of its records, and established that it made a good faith effort to conduct a search for the requested records. Finally, the court determined that the agency properly withheld or redacted documents under the statute's exemptions. 

Thursday, June 14, 2018

TRO Issued Against Village's Assault Weapon Ban

The issue of gun control has been a topic of extensive conversation across the country, and recently in Illinois when the Village of Deerfield enacted an assault weapons ban by local ordinance. That ban is currently the subject of a legal challenge in multiple lawsuits, including one brought by the Illinois State Rifle Association and the Second Amendment Foundation, and another lawsuit filed by Guns Save Life, Inc. Both cases claim the Village had no authority to adopt its assault weapons ban because it was preempted by state law. Other arguments include "takings" and eminent domain claims and both complaints ask the court to issue a temporary restraining order (TRO) to prohibit the Village from enforcing the ban while the case moves forward.

On June 12th, a Lake County Circuit Court judge issued a preliminary ruling in both cases granting a TRO to plaintiffs and barring the Village from enforcing its assault weapons ban. The court determined that the Village ordinance was not enforceable because it is preempted by state law, specifically provisions of the Firearm Owner's Identification Card Act and Firearm Concealed Carry Act that were enacted in 2013. The court also found that the Village's 2018 ordinance that amended a 2013 ordinance adopted by the Village within the limited preemption exclusion time-frame was a "new" ordinance and not an amendment of the 2013 ordinance. The court rejected plaintiffs' takings and eminent domain claims. 

This ruling is not the final decision in this case, but grants temporary relief to plaintiffs while the case proceeds.

You can read the court's ruling here.

Monday, June 11, 2018

Quorum Forum Podcast Discusses Employment Law Issues

Ancel Glink just released Episode 3 of its podcast, Quorum Forum. In this episode, Ancel Glink's labor and employment attorneys provide updates on new employment laws that affect government employers and engage in a discussion about sexual harassment in the workplace. 

You can find this Episode 3 here and our previous podcast episodes on Quorum Forum's website here

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

Thursday, June 7, 2018

Zoning Lawsuit Bill Passes Both Illinois Houses

Illinois House Bill 4711, if passed, proposes to amend the Zoning Enabling Acts for municipalities, counties, and townships to address lawsuits against these government entities. That bill recently passed both houses and has been sent to the Governor.

If passed, the zoning statutes will be amended to provide that the statute commonly referred to as the Adjoining Landowner Act does not authorize a lawsuit against the municipality, county, or township in which the property in question is located unless the government entity is the owner of that property. The Adjoining Landowner Act authorizes a municipality or property owners within 1200 feet of a property allegedly in violation of buildings or zoning codes to sue the property owner to enforce the building or zoning code. 

The specific language that would be added to the municipal Adjoining Landowner Act is as follows:
Except in relation to municipality-owned property, this Section does not authorize any suit against a municipality or its officials for any act relating to the administration, enforcement, or implementation of this Division or any ordinance, resolution, or other regulation adopted pursuant to this Division.  
Similar language would be added to the township and county statutes. 

The bill is consistent with numerous Illinois cases that have dismissed lawsuits filed against government entities under the Adjoining Landowner Act. Those cases clearly state that the Adjoining Landowner Act does not provide a cause of action against the government entity unless the entity is the owner of the property that is allegedly in violation of building or zoning codes.

Post Authored by Julie Tappendorf

Wednesday, June 6, 2018

Illinois Supreme Court Takes Appeal in Food Truck Case

The Illinois Supreme Court granted an appeal in a case challenging the City of Chicago's food truck ordinance.  We wrote about the appellate court ruling here and the trial court ruling here.  Both courts ruled in favor of the City of Chicago, rejecting the plaintiffs' claim that the ordinance violated the food truck operators' equal protection rights because it treated food trucks differently than restaurants. It also rejected their argument that the 200 foot distance requirement from brick and mortar restaurants violated the food truck operators' due process rights, finding no protected property right to operate a food truck.  We will update you once the Illinois Supreme Court issues its ruling in this appeal.

Tuesday, June 5, 2018

County Did Not Violate Due Process in Ordinance Prohibiting Alcohol in Adult Businesses

In an unpublished appellate court ruling, a court ruled in favor of the county in a lawsuit filed by an adult entertainment establishment challenging a county ordinance prohibiting alcohol in adult entertainment establishments. County v. Wilhoit.

Wilhoit operated an adult entertainment establishment in Douglas County which allowed patrons to bring in and consume their own alcoholic beverages. In 2015, the County adopted an ordinance prohibiting the consumption of alcoholic beverages in adult entertainment establishments. After the county filed an ordinance violation action against Wilhoit's business to enforce the ordinance, Wilhoit filed a lawsuit against the county alleging that the ordinance was unconstitutional because the county failed to provide Wilhoit with notice of the meeting at which the ordinance was adopted.

The appellate court first noted that plaintiff did not argue that the County failed to follow the required notice procedures. Instead, plaintiff was arguing that she deserved additional notice because she had a "property interest" in operating her business. The court disagreed, finding that the County did not violate Wilhoit's procedural due process rights because (1) Wilhoit had no protected property interest  in having patrons consume alcoholic beverages at her adult entertainment establishment; and (2) Wilhoit was not entitled to any special notice beyond what was provided to the general public.

Post Authored by Julie Tappendorf

Monday, June 4, 2018

U.S. Supreme Court Expands 4th Amendment Protection to Vehicles in Driveways

In Collins v. Virginia, the U.S. Supreme Court addressed a challenge to a police search of a motorcycle located in a partially enclosed carport on a driveway adjacent to the defendant’s home. 

In the course of investigating the ownership and location of a motorcycle seen excessively speeding, Officer Rhodes went to the address where a similar motorcycle was known to be present. At the house, Rhodes observed a white tarp covering a motorcycle.  Without a warrant, the officer  walked up the driveway to where the motorcycle was parked and uncovered the tarp.  The officer discovered the same motorcycle involved in the speeding incident.  After running a search of the license plate and vehicle identification number, he confirmed that the motorcycle was stolen and photographed the motorcycle before replacing the tarp. Collins was later charged and convicted of stealing a motorcycle. 

The Virginia state courts rejected Collins’ claim that the officer’s search violated his 4th Amendment rights,finding that the search fell under the automobile exception of the 4th Amendment.  That exception recognizes that a vehicle has the opportunity to leave during the time period that an officer would have to obtain a search warrant.  In addition, vehicles that travel on public highways are generally subject to regulation while being operated.  When an officer has probable cause to find a motor vehicle was used to commit a violation on a public way, a search of an automobile is justified without a warrant.

On appeal, the U.S. Supreme Court found, in an 8-1 ruling, that Collins had greater constitutional protections because of where the motorcycle was parked.  The area outside of a home where an owner still has a right to privacy is described as the “curtilage” of a person's property.  Courts have held that because the curtilage is intimately linked to the home, physically and psychologically, it is entitled to greater privacy expectations. The Supreme Court found that the driveway where Collins’ motorcycle was parked qualified as curtilage. As a result, Collins’ had a greater 4th Amendment right when his motorcycle was parked there than if it had been parked on the street. 

The Court then looked to see if the automobile exception applied to the officer’s warrantless search.  However, the Court found that there is nothing about the automobile exception that gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. 

Local attorneys and code enforcement officers should closely examine the case to determine how to investigate and issue citations against motor vehicles located on private driveways.

Post Authored by Megan Mack & Adam Simon, Ancel Glink

Friday, June 1, 2018

Mayor Sued for Blocking Critic From Facebook Page

We reported last week about the federal district court decision that held that President Trump's blocking of critical speakers on his @realDonaldTrump Twitter account violated the speakers' First Amendment rights. A new case was recently filed in California by an individual making similar claims against a National City Mayor.

According to news sources, the mayor blocked a union organizer who was a vocal critic of the mayor from his Facebook account. The plaintiff claims that because the mayor uses his Facebook account for city business, he cannot block critics from posting on his page. The case was just filed, so there have been no rulings yet, but it's likely the parties' arguments and the court's analysis will be similar to that found in the Trump Twitter case.  We will keep you posted.

You can read the complaint here.

Post Authored by Julie Tappendorf

Thursday, May 31, 2018

New Law Allows Website Posting for Prevailing Wage Rates

Last year we reported on a new law that authorizes public bodies to "publish" their prevailing wage rates by posting notice on their websites rather than in the newspaper. Public bodies that adopt the Department of Labor's wage schedule for the county (or counties) in which the public body is located are eligible to take advantage of this alternative method of publishing their prevailing wage rates. P.A. 100-0154.

If a public body qualifies for the alternative method of publication, it must post a notice of the determination of prevailing wages on the public body's website with a hyperlink to the prevailing wage schedule for the locality that is published on the Department of Labor's website.  The following link will direct you to the list of counties where you can find the proper link to post on your website:   

You can read our previous blog post here.

Post Authored by Julie Tappendorf

Wednesday, May 30, 2018

Court Dismissed Challenge to Chicago's Tax on Internet Streaming Services Such as Netflix

Last week, a Cook County Circuit Court Judge issued a ruling in favor of the City of Chicago in a challenge that its 9% amusement tax violated federal law and the constitution. Labell v. City of Chicago. Plaintiffs had filed a lawsuit against the City of Chicago alleging that the City's imposition of the amusement tax on Internet-based streaming services such as Netflix, violated the federal Internet Tax Freedom Act, the U.S. Commerce Clause, the Illinois constitution, and exceeded the City's home rule taxing powers. Plaintiffs were customers of Internet services who had been charged the amusement tax. 

The court addressed each allegation, finding no merit to plaintiffs' challenge to the City's tax. The court determined that the City had adequate authority under its home rule powers. The court also found no validity to plaintiffs' argument that the City's imposition of a different tax on live amusements than it does on Internet-based amusements discriminates against them. The court also rejected plaintiffs' argument that the tax violates the uniformity clause because it treats residents differently than non-residents. 

Post Authored by Julie Tappendorf

Tuesday, May 29, 2018

Law Making Licensee Complaints Confidential Not Retroactive

In a recent case decided by the Illinois Supreme Court, the Court determined that a new law that provided that complaints filed with the Department of Financial and Professional Regulations (Department) against licensees are confidential and protected from disclosure should not be retroactively applied to a FOIA request. Perry v. Department of Financial and Professional Regulations, 2018 IL 122349

Plaintiffs filed requests with the Department for copies of complaints filed with the Department against licensees. The Department denied the FOIA requests, citing various exceptions including P.A. 98-911 which protects from release complaints filed against certain licensees. Plaintiffs sued, claiming that their requests were filed before the new law became effective, and the law should not be applied retroactively. The circuit court agreed with plaintiffs, but the appellate court reversed. On appeal to the Illinois Supreme Court, the Court reversed the appellate court, finding that the new law that would protect the requested records from release should not be retroactively applied. The Court then remanded the case back to the circuit court to make a determination on an award of attorneys fees and to hold a hearing on civil penalties.

Post Authored by Julie Tappendorf

Thursday, May 24, 2018

President's Blocking of Twitter Users Found Unconstitutional

Last summer, we reported on the federal lawsuit filed against President Trump by individuals who had been blocked from the President's @realDonaldTrump Twitter account. You can read our post here. Yesterday, the federal district court issued a ruling in this case declaring that the blocking of users from the President's Twitter account violated the users' First Amendment free speech rights. Knight First Amendment Institute et al. v. Trump.

The court's analysis is interesting because there are very few cases that discuss the interaction of the First Amendment with social media. It's also lengthy (75 pages), so I've condensed what I believe are the important points of the court's analysis in the following summary. 

Twitter Users Engaged in Protected Speech

First, the court considered whether the plaintiffs (the blocked users) had engaged in speech protected by the First Amendment. The court concluded that they had because the users sought to engage in political speech critical of the President, and speech on "matters of public concern" is protected by the First Amendment.

@realDonaldTrump Account is Controlled by the Government

Second, the court looked at whether the space where the users were preventing from engaging in protected speech was a public forum for purposes of the First Amendment. That issue turned on whether the space in question is "owned or controlled by the government." The court acknowledged that Twitter is a private company that is not government-owned, the control exercised by President Trump over the @realDonaldTrump account was governmental in nature, based on the following factors:
  • The account is presented as being "registered to Donald J. Trump, 45th President of the United States of America." 
  • The President's tweets are official records that must be preserved under the Presidential Records Act.
  • The account has been used in the course of a number of official acts, including the appointment of officers, the removal of officers, and the conduct of foreign policy.
  • The President presents the account as being a presidential account rather than a personal account.
  • The President has used the account to communicate and interact with the public about his administration.
  • White House aides, including co-defendant Daniel Scavino, White House Social Media Director and Assistant to the President, had access to the account and drafted, posted, and assisted the President with content for tweets on the account.

Public Official's Purely Personal Account Treated Differently

The court acknowledged the distinction between a personal Twitter account and governmental official account, noting that a public official's blocking of a user from a purely personal Twitter Account would not implicate a First Amendment forum analysis. But, in this case, the court determined that the nature of the control over the @realDonaldTrump account by the President and his staff was governmental in nature. 

Interactive Space of President's Twitter Account is a Designated Public Forum

Third, the court examined whether the public forum was a traditional, designated, or non-public forum under the First Amendment. The court rejected any argument that it was traditional, finding no basis for finding the interactive space of the President's Twitter account to be historically used for public speech and debate. However, the court did find the forum to be a designated public forum, meaning that "viewpoint discrimination" is presumed to be impermissible. Based on the facts (which were agreed to by all parties), the court determined that the plaintiffs (the blocked users) were "indisputably blocked as a result of viewpoint discrimination." Specifically, the court found that they were blocked because they criticized the President or his policies, an allegation that was not contested by the President. 

President's First Amendment Rights Not Implicated

Finally, the court rejected the President's argument that his First Amendment rights would be violated if he could not choose the people he associates with on Twitter. Although the court acknowledged that public officials do not lose their First Amendment rights when they take office, they do not have the right to exclude critical speakers from expressing their opinions - in this case, by blocking those users from his Twitter account. The court did seem to suggest that a public official could "mute" a Twitter user, comparing that to "ignoring" a speaker who the official does not want to engage with. However, the act by a public official of "blocking" users as a result of the political views they have expressed is not allowed under the First Amendment where the speech is protected and the area in which the speech takes place is a public forum protected by the First Amendment.

In short, the court found that the President's blocking of Twitter users violated their First Amendment rights. The court did not order the President to "unblock" the users, instead choosing to simply declare the conduct as unconstitutional and leaving it to the President to "remedy the blocking we have held to be unconstitutional."

So, what is the takeaway for public officials?  Your personal social media accounts should not be subject to First Amendment protections so long as they are used solely for personal, and not governmental, communications. However, to the extent that your social media account is used to communicate about your government position and activities and/or holds itself out as being an official account, it might be subject to the same analysis as President Trump's Twitter account. That means you should be cautious about engaging in viewpoint discrimination (i.e., blocking, deleting, or otherwise censoring or punishing other users based on the content of their message).

Post Authored by Julie Tappendorf

Wednesday, May 23, 2018

PAC Annual Report for 2017

Each year, the Public Access Counselor's office of the Illinois Attorney General (PAC) releases an annual report summarizing the PAC's activities over the past year. The Annual Report includes a summary of some of the binding and non-binding opinions issued by the PAC office, as well as information about the PAC's informal resolutions. The Report also reports on the number of requests for review filed with the PAC office. You can access the full Report for 2017 on the PAC website here.  

It is important to point out that the PAC's Annual Report for 2017 is heavily skewed towards reporting solely on opinions finding public bodies in violation of FOIA or OMA. In fact, the Annual Report completely fails to report on any of the opinions that find in favor of public bodies on FOIA and OMA complaints. The one-sided nature of the Annual Report is somewhat misleading to the public as it suggests that every complaint filed with the PAC has merit. To the contrary, we have read and reported on many PAC opinions that find in favor of public bodies, albeit in non-binding opinions. Frankly, it would not be that difficult for the Annual Report to summarize a few of these opinions or at least report on the percentage of opinions finding in favor of, or against, public bodies. In my opinion, a more balanced approach to reporting on the PAC activities would provide the public with a more accurate reporting on the PAC's activities and how public bodies are complying (or not complying) with FOIA and OMA. 

The Annual Report includes the following statistics for 2017:
  • 3,515 requests for review were filed with the PAC relating to FOIA complaints
  • 373 requests for review were filed with the PAC relating to OMA complaints
  • 15 binding opinions were issued in 2017 (you can find summaries of these opinions on this blog)
  • 43 training sessions were conducted by the PAC
  • 92% of the 35,000 requests for review filed with the PAC since 2010 have been closed
Post Authored by Julie Tappendorf

Tuesday, May 22, 2018

"Sham" Annexation Violated Public Policy and is Invalid

State law authorizes a municipality to annex unincorporated territory to the municipality in a number of different ways. A municipality may annex a property voluntarily, when a property owner files an annexation petition requesting that its property be annexed. A municipality may also annex property involuntarily or forcibly, if certain statutory conditions are met. For example, a municipality may forcibly annex a property that is "wholly bounded" by one or more municipalities without the owner's consent. In Chicago Title Land Trust v. County of Will, the court considered the legality of a forcible annexation that was contingent upon the validity of a previous voluntary annexation.

The municipality had entered into an annexation agreement with ComEd to annex a 5 acre parcel to the municipality. Pursuant to the annexation agreement, ComEd agreed to file an annexation petition to voluntarily annex its property, subject to certain conditions. Those conditions included the ability to disconnect the property upon ComEd's request. The annexation agreement was approved, and the property annexed pursuant to its terms.

Subsequent to the annexation of the ComEd property, the municipality adopted an ordinance forcibly annexing property that became "wholly bounded" as a result of the ComEd annexation. Shortly thereafter, the property owner filed suit, challenging the forcible annexation as a "sham" based on the terms of the annexation agreement and the municipality's actions.

Although the trial court upheld the annexation, the appellate court did not, finding that the municipality's actions amounted to a "sham" annexation of the ComEd property that was for the sole purpose of bringing into the municipality the adjacent property without consent of the owner. The court determined that because the ComEd annexation was a "sham" it was invalid, meaning that the property forcibly annexed was not "wholly bounded" for purposes of the forcible annexation statute. The court concluded that this sham transaction violated public policy.

Post Authored by Julie Tappendorf

Monday, May 21, 2018

No Due Process Violations Against School District

A dispute between a school board member and a student resulted in a lawsuit against the board member and a school district that made its way to the Seventh Circuit Court of Appeals in Manley v. Bruce Law, (7th Cir. May 10, 2018).

Manley was a member of a high school district when she got into a verbal altercation with a high school student who was passing out leaflets supporting Manley's political opponents outside a high school play. Manley claimed the activity violated school board policy. The student subsequently accused Manley of bullying, and a public outcry led to the school district initiating an investigation into Manley's behavior. Manley filed suit against the school district alleging that the investigation violated her due process rights. The district court dismissed the case, and Manley appealed to the Seventh Circuit.

The Seventh Circuit first noted that the Constitution "does not guarantee good feelings or regulate manners in political disputes" and that "American politics is not for the thin-skinned, even, or perhaps especially, at the local level." With that introductory backdrop, the Court found no violation of Manley's due process rights when the district investigated her actions at the school play. The Court held that Illinois does not create a constitutional right to "emotional well-being" or any right to be free from investigations such as the one the district conducted about Manley. In short, the Court found no constitutionally protected interest at play in this case, and upheld the dismissal of Manley's claims against the school district.

Post Authored by Julie Tappendorf

Friday, May 18, 2018

New Episode of Ancel Glink's Quorum Forum Podcast Now Available!

Ancel Glink’s Quorum Forum podcast has a new “Special Meeting” episode available titled “Consolidation!” In this episode of our podcast, we present an update on consolidation legislation affecting municipalities, and hear Keri-Lyn Krafthefer's takes on township consolidation.

Check it out here:

Quorum Forum website: http://quoromforum.ancelglink.com/

Questions? Show ideas? Email us at podcast@ancelglink.com!

Tuesday, May 15, 2018

Seventh Circuit Upholds City's Adult Use Ordinance

The Seventh Circuit recently considered a challenge to the adult use provisions of the City of Indianapolis’s zoning ordinance in HH-Indianapolis, LLC, v. Consolidated City of Indianapolis and County of Marion, Indiana, et al.

The plaintiff sought to operate a “Hustler Hollywood” store in the City’s C-3 District.  Under the City’s zoning ordinance, the plaintiff’s store was classified as either an adult bookstore or an adult service establishment. The City’s zoning ordinance prohibited adult uses in the C-3 District.  However, adult bookstores and adult service establishments were permitted by right in three other City commercial zoning districts, including the C-4 district located directly across the street from the proposed store.

After the City denied the plaintiff’s building and sign permit applications because the use was not permitted in the C-3 District, the plaintiff sued, claiming the City’s zoning ordinance violated its First Amendment rights. 

The Seventh Circuit ruled against the plaintiff, finding that the City's zoning regulations did not prohibit adult uses entirely, but merely regulated their location. The Court rejected plaintiff's argument that the City’s ordinance “silenced” their ability to exercise their First Amendment rights at the location of their choosing. The Court noted that the plaintiff had not been silenced, but merely told that it could not operate in one commercial zoning district and must move to another. The Court noted that the plaintiff could operate in three other commercial districts by right. Further, the Court found that the City had a substantial interest in reducing the secondary effects of adult uses by limiting their location. Ultimately, the Court held that “because the ordinance is content-neutral, serves a substantial interest, and allows HH to operate in numerous other commercial districts, HH’s likelihood of success on its First Amendment claim is not better than neglible.”

As the Seventh Circuit confirmed, municipalities have the power to enforce reasonable time, place, and manner restrictions on adult uses. 

Post Authored by Kurt Asprooth, Ancel Glink

Monday, May 14, 2018

School Board Did Not Violate OMA in Using "Self Evaluation" Exception

A recent PAC opinion addressed Section 2(c)(16) of the Open Meetings Act in an advisory opinion. 2018 PAC 51767. While a non-binding opinion, it offers guidance on interpreting the “self evaluation” exception of the OMA.

A school board member filed a complaint with the PAC alleging that the school board violated the Open Meetings Act by holding an improper closed session. The Board entered closed session at a special meeting to discuss self-evaluation of Board procedures under 2(c)(16) of the Act. While in the closed session, the Board also discussed ways in which it could prevent the complainant from posting on social media.    

Section 2(c)(16) allows a public body to discuss in closed session “self evaluation, practices and procedures or professional ethics, when meeting with a representative of a statewide association of which the public body is a member.”  The school board argued that the closed session was proper as two representatives from a statewide association, Illinois Association School Boards, were present to conduct the self-evaluation.  The board contended that the complainant’s allegations focused on a part of the closed session where the board discussed concerns about actions taken by individual board members.  It argued that the discussion was directly related to the self-evaluation.  The complainant argued that the discussion did not fall with the scope of the 2(c)(16) exception, claiming that the discussion centered on policy, not self-evaluation. 

Upon review of the verbatim recording of the meeting, the PAC found that the discussion was made in the context of discussing improvements to certain practices and procedures.  The PAC found that the discussion during the closed session was within the scope of 2(c)(16) and no violation of the Act occurred. 

Post Authored by Erin Pell, Ancel Glink

Monday, May 7, 2018

Ancel Glink's Podcast "Quorum Forum" is Live!

We are excited to report that we have just released our new podcast, Ancel Glink's very own Quorum Forum!

In our first "Regular Meeting" episode, Caitlyn Sharrow highlights pending local government legislation, and Julie Tappendorf discusses the use of personal cell phones to communicate about government business. 

You can listen to the podcast on the following podcast platforms:

iTunes: https://itunes.apple.com/us/podcast/quorum-forum/id1380233731

Don't forget to follow Ancel Glink's Quorum Forum channel on your favorite podcast platform so you know when new "meeting" episodes are released. We will also update Municipal Minute when a new episode goes live.

Questions or show ideas? Send them to podcast@ancelglink.com.”

Friday, May 4, 2018

Instagram Posts Support $10,000 Sanctions Against Lawyer

In a recent court ruling, a New Jersey judge imposed a $10,000 sanction on a lawyer after she claimed that she was out of town on a family emergency, but her Instagram account proved otherwise. Siu Ching Ha v. Baumgart Cafe of Livingston.

Ms. Franco represented a group of plaintiffs in a Fair Labor Standards Act case against four New Jersey cafes. After she missed a deadline to file a motion for class certification on behalf of the plaintiffs, she filed a motion for an extension of time. In her motion, she stated that she was forced to leave the country due to a family emergency in Mexico City, and attached her itinerary. 

The defendants' attorneys filed an objection to the motion for an extension, and pointed out that Ms. Franco's Instagram account showed that she was  not in Mexico City on the date the motion was due to be filed. Instead, her account showed she was in New York City, and then Miami. The attorneys also pointed out that the itinerary attached to Ms. Franco's motion referred to Thursday, November 21, 2016, which was not a real date. In response, Ms. Franco argued that emotional distress over her mother's health caused her to provide an "erroneous itinerary" and she requested that the court allow her to withdraw from the case. 

At a court hearing, Ms. Franco admitted that she was not honest with the court. However, she argued that sanctions should not be imposed because her conduct did not amount to "unreasonable and vexatious" conduct. The court disagreed, finding that sanctions were warranted in this case because Ms. Franco deliberately misled the court and the other attorneys in this case. The court expressly acknowledged that her social media account showed she was not in Mexico City as she claimed in her motion for an extension. In short, the court found Ms. Franco's actions in bad faith. Although defendants' counsel had requested $44,283 in attorneys' fees and costs against Ms. Franco, the court found the billings to be excessive, and reduced the sanctions award to the defendants' counsel at $10,000.

This was a pretty expensive lesson for the attorney, and a reminder to everyone that there is no privacy in your social media activities.

Post Authored by Julie Tappendorf

Thursday, May 3, 2018

Update on Municipal Consolidation Bill

A couple of weeks ago we reported on a bill that would amend the municipal consolidation statute in a number of ways. One of the most significant changes in that earlier version of the bill would be to require referendum approval by voters in just one of the consolidating municipalities, rather than voters from all of the consolidating municipalities. Recently, HB 5777 was amended to eliminate the language requiring only one municipality's voters to approve the consolidation, restoring the previous language. The amended bill also requires filing of the referendum petition only in the county where the largest municipality is located, and includes a 22 month "waiting period" on filing another referendum petition if the referendum fails, with certain exceptions.

The bill, as amended, passed the Illinois house and now moves to the Illinois senate.

Post Authored by Julie Tappendorf

Wednesday, May 2, 2018

Records Pertaining to Housing Task Force Subject to FOIA

An appellate court recently issued an opinion finding a "housing task force" of a municipality to be a public body subject to FOIA. City of Danville v. Madigan, 2018 IL App (4th) 170182.

A FOIA request was filed with the City in 2015 requesting copies of documents relating to the City's housing task force, including meeting notices, minutes, and all electronic communications between members of the task force and City employees or officials. The City denied the request on the basis that the records were not "public records" because the task force was not a public body subject to FOIA. The requester appealed to the Attorney General's PAC office, which found the City in violation of FOIA. Specifically, the PAC stated that the records were in the possession of the City, and related to business of the City, so the City was obligated to respond to the FOIA request. We reported on the PAC's binding opinion on the blog here. A circuit court agreed with the PAC, and the City appealed to the appellate court.

The appellate court first considered, and rejected, the City's argument that since the housing task force was not a public body, the records were not subject to FOIA. The court noted that the FOIA request was submitted to the City, not the task force, and the City is clearly a public body. 

So, in the court's view, the relevant issue was not whether the task force was a public body but whether the requested records were "public records" subject to FOIA. Based on the definition of "public records," documents are subject to FOIA if they pertain to the "transaction of public business." The court determined that they did pertain to public business because the task force's express mission was to make recommendations to the City on its housing strategy - a public interest rather than a private one. The court also determined that the City was "in possession of" the public records for purposes of FOIA. 

The court did not agree with the City's argument that its ruling would open up every piece of paper in City hall to inspection by the public, since there were exemptions that might apply to a particular record. 

Post Authored by Julie Tappendorf

Tuesday, May 1, 2018

Coming Soon: Ancel Glink’s New Podcast “Quorum Forum”

We are excited to report that Ancel Glink will soon be releasing our new podcast - “Quorum Forum.” Some of you may be wondering – what’s a podcast?  A podcast is like an “audio” blog but instead of reading about current legal topics of interest to local government officials and employees, you will listen in as Ancel Glink attorneys discuss these issues.

We just finished recording our first podcast episode last week and it will “go live” shortly. In our first episode, we highlight a few cases and pending bills, and engage in a discussion about the use of personal cell phones to communicate about government business.

You won’t want to miss episode one (or any of our future episodes), so stay tuned on this blog for more information about how you can subscribe so you can listen in.

Post Authored by Julie Tappendorf

Monday, April 30, 2018

Bill Would Require Pension Funds to Broadcast Meetings to Public

HB 4413, if enacted, would require all Illinois pension boards to broadcast their open meetings to the public and maintain those recordings on the pension fund's website. The recordings can be in either audio or video format. The bill passed in the Illinois house by a vote of 71 to 39, and is currently in committee in the Illinois senate. The Illinois Municipal League, public safety union organizations, and others oppose the bill. 

Post Authored by Julie Tappendorf

Thursday, April 26, 2018

Local Government Severance Pay Bill Introduced

SB 3604 was recently introduced that proposes to create the "Local Government Severance Pay Act." If passed, the law would require any unit of government that enters into an employment agreement or renews or amends an existing employment agreement to comply with certain statutory restrictions on severance provisions in those agreements. 

First, the Act would restrict the amount of severance pay that an employee could be entitled to under the agreement to no more than 20 weeks of compensation. 

Second, the Act would prohibit any payment of severance to an employee who was fired for misconduct. The Act defines misconduct fairly broadly, to include the following:
  1. conduct that would be found to be a deliberate violation or disregard of reasonable standards of behavior; 
  2. carelessness or negligence manifesting culpability or wrongful intent; 
  3. chronic absenteeism or tardiness; 
  4. willful and deliberate violation of a state standard or regulation by an employee licensed or regulated by the state; or 
  5. a violation of an employer's rules or policies, with some exceptions.

The bill was introduced two weeks ago and is currently in committee. We will follow this and report back if it moves forward.

Post Authored by Julie Tappendorf

Wednesday, April 25, 2018

Water Shutoff May Violate Tenant's Constitutional Rights

In a recent decision from the Second Circuit Court of Appeals, a federal court found that a city violated both the Equal Protection and Due Process clauses of the U.S. Constitution when it terminated water service to tenants whose landlords failed to pay the water bill. Winston v. City of Syracuse. Although the case comes from a court outside of Illinois, it is still of interest since it specifically mentions a Seventh Circuit decision involving an Illinois municipality.

A tenant in a multi-family building had her water services turned off by the City when her landlord failed to pay the water bill. Winston attempted to pay her landlord’s overdue water bill in order to restore service; however the City’s ordinance allowed only property owners to make applications and pay for water services.

As an initial matter, the court found the City had a rational basis for classifying tenants and landlords differently for the purposes of opening water accounts with the City because property ownership, as opposed to rental, allowed City to collect its unpaid water bills more effectively because it could subject the property to liens.

However, the court found that terminating a tenant’s water service was not a rational means of collecting the landlord’s water debt because the tenant (the one directly penalized by the shutoff) was not the debtor. So, the City’s policy of shutting off water to tenants whose landlords failed to pay the water bill could violate the Equal Protection clause.

Closer to home, the Seventh Circuit had previously ruled in favor of a tenant on a similar issue involving an Illinois municipality in Sterling v. Village of Maywood, 579 F.2d 1350 (1978). There, the court found an equal protection violation after the Village refused to turn on water service to the tenant's unit because of the landlord's failure to pay for water service. The court also questioned whether the Village's refusal to provide water service violated her due process rights. 

Post Authored by Jessi DeWalt, Ancel Glink

Tuesday, April 24, 2018

City Not Liable for Flooding on Residents' Property

In a recent unpublished opinion, an Illinois appellate court ruled in favor of a municipality in a lawsuit filed by residents who claimed the City was liable for flooding on the residents' property. Adcock v. City of O'Fallon, 2018 IL App (5th) 160435-U.

The Adcocks sued the City and the developer of land near their property claiming both were responsible for flooding on their property. The City filed a motion to dismiss the case, arguing that the City was not responsible because (1) it had no duty to inspect or maintain the private drainage system; (2) it did not create the flooding; and (3) the City is not liable for stormwater diverted by the developer of neighboring property. The circuit court agreed, and dismissed the case against the City, and the Adcocks appealed.

The appellate court rejected the Adcocks' argument that the City should be responsible for the damages that allegedly resulted from the diversion of stormwater from the nearby development. Importantly, the appellate court noted that the City did not create the nuisance - that was the developer's action in building its condominium development on nearby property, and that party had already settled its claims with the Adcocks for a full release. There was no evidence to convince the appellate court that the City should be responsible for fixing the plaintiffs' flooding issues.

Post Authored by Julie Tappendorf

Monday, April 23, 2018

FOIA Bill Would Require $7,500 Escrow For All Denials, Among Other Changes

A reader pointed out a FOIA bill that would certainly impact Illinois local governments, if enacted. HB 5742 would amend the Freedom of Information Act in the following ways:

1. Recurrent Requesters. It proposes to amend the definition of "recurrent requester" to exempt requests made by members of the General Assembly. It would also exempt requests made for the purpose of accessing and disseminating information pertaining to public policy and the administration of state government.

2.  Deliberative Process/Draft Documents. It proposes to amend the exemption from FOIA for draft records and records that formulate policy in two ways. First, it would limit the "deliberative process" exemption to records where opinions of the public body or its agents are expressed. Second, the exemption would not apply to preliminary records expressing opinions if the records were produced in connection with a report that is required to be publicly produced by the agency of the executive branch.

3.  Denial "Index". For every denial of a public record, this bill would require the public body to produce an "index" that includes a description of each document withheld or redacted, the date the withheld or redacted document was created, the author and recipient of each such document, and a statement of the exemptions claimed for each individual withheld or redacted document.

4. Escrow for Denials. One of the more troubling proposed changes would require a public body to place in escrow in an interest-bearing account $7,500 for each request that is denied by the public body. That escrow would remain in the fund for at least 60 days after the denial, or until after the PAC completes its review if an appeal is filed with the PAC or until a circuit court issues an opinion if an appeal is filed with the court. If a determination is made that the public body improperly denied a request, the funds will be awarded to the requester. 

5. Liability. Currently, public bodies are not liable for penalties if it discloses a record in accordance with a PAC opinion. If passed, this bill would exempt the "escrow" award from this immunity provision. 

It's not clear whether this bill has any traction, since it has been sitting in committee since February. But, since it has significant financial implications for all public bodies in the state subject to FOIA, including municipalities, school districts, park districts, libraries, townships, etc., it is worth bringing to your attention.

Post Authored by Julie Tappendorf

Friday, April 20, 2018

7th Circuit Upholds Nationwide Injunction in Sanctuary City Case

Yesterday, the Seventh Circuit Court of Appeals ruled in favor of the City of Chicago in its lawsuit against the U.S. Attorney General in a case involving the City's sanctuary city status (or in the case of Chicago, "Welcoming City"). City of Chicago v. Jefferson B. Sessions (7th Cir. April 19, 2018).

The lawsuit was filed after the Attorney General tied receipt of federal grant funds to municipal police departments to compliance with certain conditions, including (1) mandating advance notice to federal authorities of the release date of any persons in state or local custody who are believed to be aliens and (2) requiring correctional facilities to provide access to federal agents to meet with those persons. The district court had granted the City's request for an injunction against enforcement of these two conditions, and the Attorney General appealed to the Seventh Circuit Court of Appeals.

The appellate court upheld the ruling in favor of the City, noting that the "power of the purse" rests with Congress, the body that authorized the federal grant funds. In this case, Congress had not imposed any immigration enforcement conditions on the receipt of these grant funds, nor did Congress authorize the Attorney General to impose conditions.  In short, the Seventh Circuit held that the Attorney General did not have the authority to impose conditions on the federal grant funds. The court also upheld the district court's grant of a nationwide injunction, finding it consistent with a recent U.S. Supreme Court case where the Court denied a stay of a nationwide injunction in a challenge to the President's Executive Order suspending entry of foreign nationals from seven countries. 

Post Authored by Julie Tappendorf

Thursday, April 19, 2018

Former Village Manager Not Entitled To Hearing When Contract Was Not Renewed

A federal appeals court recently ruled in favor of a municipality in a lawsuit brought by a former village manager who alleged that the village's failure to provide a hearing before it chose not to renew his contract violated his due process rights. Linear v. Village of University Park, (7th Cir. April 17, 2018).

The former manager had an employment contract with the Village that expired with the mayor's term. When the mayor began her new term in May of 2015, the Village decided not to extend his contract. The former manager filed suit, claiming that he was entitled to a hearing before he was terminated under the due process clause of the federal constitution. The Village replied that he was not terminated, and instead the Village simply did not renew his contract when the term ended. The district court agreed with the Village and dismissed the former manager's case, finding he had no property interest in the position because state statute prohibits any contract for a village manager from extending past the end of the mayor's term.

On appeal, the Seventh Circuit also held that the former manager had no federal property right to remain as village manager. However, the court took issue with the district court's ruling on the state law issues, and particularly its application of the statutory limits on contracting beyond the mayor's term. It also noted that the case was more about contractual rights (i.e., what did the employment contract provide), rather than a federal due process issue, and that was an issue for the state court to address, not the federal court.  

In short, the Seventh Circuit held that the former manager had no federal constitutional right to a hearing on the Village's decision not to renew his contract. The court refused to address the other claims, including whether he was entitled to severance under the contract, finding those to be state law issues that should be decided by the state court.

Post Authored by Julie Tappendorf

Wednesday, April 18, 2018

Municipal Consolidation Bill Still Alive in Illinois House

We've been following a bill that would amend the Illinois Municipal Code to establish a process for consolidation of two or more municipalities. See HB 5777.

Currently, section 7-2-1 of the Illinois Municipal Code provides authority for two or more contiguous municipalities to unite into one incorporated city through a process that is initiated by the filing of a petition in the circuit court and then proceeds to a referendum vote. 

HB 5777, if adopted, would substantially change that process in a number of ways.  First, it would provide for the consolidation of two or more contiguous municipalities into one contiguous city or village. It would eliminate the circuit court process entirely and instead be initiated by the filing with the county election authority of a petition signed by 10% of the electors of each municipality or 250 such electors (whichever is less). The statute would prohibit any elected official, member, employee, or contractor of the municipalities subject to the petition from using governmental or public resources in opposing or supporting the petition. Finally, instead of requiring the approval of the referendum by a majority of voters in each municipality affected by the consolidation, the statute would only require a majority vote in any of the affected municipalities. 

Because this legislation raises a lot of questions for Illinois municipalities, we will follow the bill and report back if it passes.

Post Authored by Julie Tappendorf

Tuesday, April 17, 2018

Court Finds No Discrimination in Zoning Challenge by Substance Abuse Facility

A federal court of appeals recently ruled in favor of a municipality in a lawsuit claiming the municipality violated the ADA, Fair Housing Act, among other federal statutes in denying approval of a substance abuse facility. Get Back Up, Inc. v. City of Detroit (6th Cir. Mar. 30, 2018) Although the case is a Sixth Circuit Court of Appeals case (which doesn't include Illinois), it's still an interesting read because it goes through the various standards that a court looks at in these discrimination cases.

Get Back Up, Inc. (GBU) had applied for a conditional use permit in 2007 to operate a substance abuse facility. The City's planning department approved the permit, but neighbors appealed to the zoning board of appeals, which reversed the permit. GBU filed its first lawsuit against the City, claiming discrimination, but lost that case.

GBU filed a second permit application with the City a few months after it lost the first lawsuit. That permit was also approved by the City's planning department, but overturned by the City's zoning board when neighbors again appealed. So, GBU filed a second lawsuit, claiming the zoning board violated the ADA, FHA, and the Rehabilitation Act when it overturned the permit approval by discriminating against disabled persons, including recovering addicts.

On appeal, the Sixth Circuit Court of Appeals first discussed the review standard for discrimination cases such as this one. GBU has the initial burden to show discrimination on the part of the City. If it succeeds, then the City has to offer a non-discriminatory reason for its decision. If the City succeeds at that, then Get Back Up must show that the City's stated reasons are "pretextual."

The Sixth Circuit determined that GBU met its initial burden to show discrimination based on statements made at the zoning board of appeals' meetings by the neighbors. 

The court acknowledged that the statements made by citizens at the zoning board hearing on their own do not establish discrimination by the City, so the City still had the opportunity to show its decision was based on non-discriminatory reasons. In that respect, the court noted that the City provided evidence that, among other things, the facility could affect property values in the neighborhood, which was also one of the zoning standards in the City's code. The City also raised other concerns raised by citizens, including complaints of trespass, theft, and other adverse effects from GBU's previous temporary operation on the site. The court found that the City had met its burden on this test.

That left the last prong of the test - whether the zoning board's reasons were "pretextual" in nature - in other words, did they conceal a discriminatory motive? The court concluded that GBU did not provide sufficient evidence of pretext by the City, so it was not entitled to an injunction against the City.

Post Authored by Julie Tappendorf

Monday, April 16, 2018

Legislative Aide Fired For Snapchat

In yet another installment of "be careful what you post on social media," we learned through a number of news reports about a Colardo legislative aide who was fired last month when he posted the following on Snapchat after a notice went out of a mandatory employee training session:
Mandatory 2 hour sexual harassment training. And they aren't even gonna show me the proper way to grab a woman's a**...
As soon as his employer was notified of the post, he was terminated. His boss, a state senator, stated in a press release that his aide's actions were "unacceptable and unbecoming of an employee of the Colorado State Senate." 

Post Authored by Julie Tappendorf

Friday, April 13, 2018

Small Wireless Facilities Act Enacted Into Law

SB 1451, proposing the establishment of the Small Wireless Facilities Deployment Act, was signed into law yesterday as P.A. 100-0585. This law will affect all municipalities in Illinois (including home rule municipalities with the exception of Chicago). The law takes effect on June 1, 2018.

Section 15 of the new Act restricts the regulatory authority of Illinois municipalities and certain other units of local government over small wireless facilities. Small wireless facilities are defined under the new law as wireless facilities that (1) have antenna that are no more than 6 cubic feet in volume and (2) all equipment associated with the antenna does not cumulatively exceed 25 cubic feet in volume. These are usually attached to existing utility poles or other support structures.

The following is a summary of just some of the restrictions on municipal regulatory authority over small wireless facilities:

  1. The law prohibits municipalities from banning, regulating, or charging for the co-location of small wireless facilities in a manner which is inconsistent with the law.
  2. It also provides that small wireless facilities are considered "permitted uses" for zoning purposes.
  3. It further states that small wireless facilities are not subject to zoning review or approval if they are either (a) co-located in rights of way in any zone or (b) are located outside of rights of way in commercial or industrial zones. However, a municipality can limit the maximum height of a small wireless facility to 10 feet above the utility pole or support structure with a few exceptions.
  4. Municipalities may require permits for co-location of a small wireless facility, and can apply generally applicable standards regarding underground requirements, construction standards for rights of way installations, design standards, and other regulations. However, the municipality cannot require as a condition to permitting that the applicant to perform services unrelated to the co-location (i.e., in-kind contributions, reservation of fiber, etc). The municipality also must process applications within the statutory time period (30 days to determine if the application is complete; if there is no decision within 120 days, the application will be deemed approved). The law mandates approval of an application unless it fails to comply with the requirements of the new law.
  5. Municipalities can reserve space on utility poles for public safety uses or electric utility uses, but that reservation cannot preclude the co-location of small wireless facilities.
  6. Municipalities cannot require the placement of facilities on specific utility poles, or impose minimum horizontal separation distances unless the facility will interfere with public safety communications.
  7. Municipalities may charge an application fee, but it cannot exceed $650.00 for the first co-located facility, and $350 for each additional co-located facility. For small wireless facilities that will include the installation of a new utility, the fee can be $1,000.
  8. The law limits the amount of “rent” or “license fees” which a municipality can collect for providing space on its own utility poles to $200 per year. 

This is just a brief summary of some provisions of the new law - there is a lot more to digest and analyze, so we plan to provide more detailed information about the impact of this law on local governments in future posts

Post Authored by Julie Tappendorf

Wednesday, April 11, 2018

Federal Appeals Court Also Upholds Appointment of Chicago School Board Members

Last week, we wrote about an Illinois appellate court ruling that upheld the state law that provides for appointment (rather than election) of Chicago School Board members. In that case, the challenge was that the law violated the Illinois constitution because it treated Chicago differently than other school districts that elected their school board members. You can read that post here

A few days ago, a federal appeals court also addressed the constitutionality of this law, but this time the challenge was that the law violated the Voting Rights Act, a federal law, because the system allegedly deprived minority citizens of their right to vote for school board members. Quinn v. State of Illinois (7th Cir. April 10, 2017). The district court had dismissed the complaint, and the plaintiffs appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit also upheld the law, finding no violation of the Voting Rights Act. First, the law did not treat citizens or voters differently, because all citizens were treated the same (in Chicago, all citizens were treated the same - they had no vote, and outside Chicago, they all had the right to vote). The Court also rejected the argument that allowing the Mayor to appoint the school board members violated their equal protection and due process rights, finding that a U.S. Supreme Court case had previously held that appointing a school board is constitutionally permitted.

Post Authored by Julie Tappendorf

Monday, April 9, 2018

Ill Supreme Court Upholds Law Banning Sexual Predators and Offenders in Public Parks

On April 5, 2018, the Illinois Supreme Court issued a ruling in People v Pepitone reversing the appellate court’s finding that Section 11-9.4-1(b) of the Criminal Code of 2012 was unconstitutional. That statute says that it is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park or on real property comprising any public park. You may recall that we wrote about the appellate court's ruling here
Marc Pepitone pled guilty to predatory criminal sexual assault of a child in 1998 and was sentenced to six years imprisonment. In 2013, a Bolingbrook police officer patrolling a municipal park observed Pepitone’s vehicle parked across three spaces. The officer ran the vehicle’s plates and discovered the owner was a registered child sex offender. Pepitone, who was walking his dog in the park, claimed he did not know about the ban. He was arrested and charged with child sex offender in a public park.  A jury found the defendant guilty. Pepitone appealed claiming the law violated his due process rights. The appellate court reversed his conviction despite two similar appellate court rulings addressing substantive due process challenges involving public parks and sex offender registration issues. 
In a unanimous decision, the Supreme Court reversed the appellate court and upheld Pepitone's conviction. The Court found that the legislature has a legitimate interest in protecting patrons of public parks from child sex offenders and sexual predators. The State supported its argument by providing numbers of cases where sexual assaults against minors have occurred in parks. Combined with data reflecting high numbers of recidivism among sex offenders, the Court found a rational relation between protecting the public, especially children, from sex offenders who have been convicted of crimes against minors from being present in public parks.  
Post Authored by Megan Mack, Ancel Glink.

Thursday, April 5, 2018

Candidate Elected to City Mayor Ineligible for Office Due to Past Felony Conviction

A court recently ruled that a candidate for the office of mayor was ineligible to serve or take the oath of office because of his previous felony conviction for mail fraud. People of the State of Illinois v. Roger Agpawa, 2018 IL App (1st) 171976. 

At the April 4, 2017 election, Agpawa received the most votes in the election for mayor of the City of Markham. The Cook County Clerk certified the election results and declared him the winner. Prior to his taking the oath of office, however, the Cook County State’s Attorney filed a lawsuit claiming that Agpawa was not eligible to serve as mayor or take the oath of office because of a prior felony conviction. 

The Illinois Municipal Code provides as follows:
a person is not eligible to take the oath of office for a municipal office if that person has been convicted in any court locate in the United States for any infamous crime, bribery, perjury, or other felony. 
The appellate court held that under this statute, Agpawa was not eligible to hold municipal office because of a prior felony conviction. The court noted that his eligibility for public office did not change simply because he received more votes than any other candidate on the ballot. The court also held that the right to run for or hold public office was not a fundamental right and that the state has an interest in ensuring public confidence in the honesty and integrity of those serving in local offices.

Post Authored by Jessi DeWalt, Ancel Glink

Wednesday, April 4, 2018

Appointment of Chicago School Board Members Not Unconstitutional

In Illinois, members of school district boards are elected by voters in the respective school district except in the City of Chicago. In Chicago, the school board members are appointed by the Chicago Mayor. That law has been in place since 1872. Recently, the statute was challenged in a lawsuit brought by residents in the City of Chicago (including plaintiff Pat Quinn, former Governor) who claimed that the statute was unconstitutional. 

Both the trial and appellate courts upheld the statute, rejecting the plaintiffs' claim that appointing school members rather than electing them violated various provisions of the Illinois constitution, including the right to vote under the free and equal election clause, the due process clause, and exceeded the City's home rule powers. Quinn v. State Board of Education. The appellate court held that there was a "rational basis" for the distinction in statute that provided for appointed school board members in Chicago but elected school board members elsewhere in the state.

Tuesday, April 3, 2018

Police Officers' Emails on Private Devices Subject to FOIA

Update - this post is being republished because the previous version of this post did not contain the correct link to the Chicago v. Attorney General case.

We reported in the past on PAC Opinion 16-006, where the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City filed an appeal to the Circuit Court of Cook County, and we received a copy of the Court's ruling from one of our readers. The Circuit Court ruled in favor of the PAC and found that the emails on the officers’ personal accounts do qualify as “public records” under FOIA. City of Chicago v. Attorney General of the State of Illinois and CNN, 16 CH 12085.

The Court noted that for a communication to qualify as a public record, it must both 1) pertain to the transaction of public business and 2) been prepared by, prepared for, used by, received by, possessed by, or controlled by a public body. Notwithstanding the appellate court's finding in Champaign v. Madigan that a government official is not generally a "public body" that would be subject to FOIA, the Court found that the officers were acting as the public body, reasoning that a public body can only act through its employees, agents, and officials. The Court found that the PAC properly balanced the privacy rights of the officers with the public’s right to the information requested.  Further, it found that the request was limited in time, scope, and participants, so it does not allow for indiscriminate browsing through personal emails.  The Court ordered the City to conduct a new search in accordance with the PAC’s opinion, and noted the changes in technology since FOIA was enacted.

Public bodies have received mixed advice on the issue of FOIA and emails/text messages sent on a government official or employee's private device or using a private account. In a case we wrote about in 2016, the Cook County Circuit Court determined that the Mayor of Chicago's emails sent on his private device are subject to FOIA. Yet, the appellate court in Champaign v. Madigan determined that city council members' texts and emails sent on their private devices are only subject to FOIA in very limited circumstances: (1) if sent during a city council meeting; (2) if sent to a majority of the city council; and (3) if forwarded to/from a city account. Consistent with this Appellate Court ruling, a Cook County Circuit Court earlier this year issued a similar ruling in Ahmad v. City of Chicago, finding that an alderman was not acting as a "public body" for purposes of FOIA when he sent emails and text messages to constituents even though those messages related to City business. Yet, in this Circuit Court case, the court held that police officers' emails/texts sent on their private devices are subject to FOIA. 

With this hodge-podge of advice from the PAC and Illinois courts that treats government officials and employees differently for purposes of FOIA, it's difficult to provide any consistent guidance to public bodies on whether their officials' or employees' communications sent on private devices will be subject to FOIA. Some public bodies are taking actions to address this issue by adopting policies that require government business to be discussed only on official government accounts and using official government devices. 

Post Authored by Erin Pell & Julie Tappendorf