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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, 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

Monday, April 2, 2018

Court Upholds ZBA's Decision Granting Zoning Variations

An appellate court recently upheld a zoning board's decision to overturn the zoning administrator's denial of a zoning variance in Glaser v. City of Chicago, 2018 IL App (1st) 171987.

In Chicago, certain zoning variation requests are decided by the zoning administrator. In this case, an owner filed an application for zoning variations with the zoning administrator to allow certain improvements to an existing nonconforming residence. Specifically, the variations would allow the height of the home to extend to 39 feet (the zoning code limits height to 35 feet) and the home to extend into the front, rear, and side setbacks. 

The zoning administrator denied the variations, and the owner appealed to the City's Zoning Board of Appeals (ZBA). The ZBA conducted a hearing and heard evidence from the owner and neighboring residents who opposed the variation requests. At the conclusion of the hearing, the ZBA granted the variations, finding that there were practical difficulties and particular hardships with the owner complying with the zoning code and that existing conditions were not generally applicable to other properties or created by the owner. The ZBA also found that the variations would enhance property values in the area.  

Neighboring residents who had objected to the variations filed a lawsuit challenging the ZBA's decision, and the trial court ruled in favor of the ZBA. On appeal, the appellate court determined that the ZBA's decision granting the variations was appropriate and consistent with the standards for variations in the City's zoning code. The appellate court noted that where there is conflicting evidence and testimony in the record (in this case, the testimony of the owner at the hearing in support of of the variations vs. the testimony of neighboring residents opposing the variations), the ZBA's decision  to approve the variations should be upheld.

Thursday, March 29, 2018

No OMA Violation to Require Public To Leave Building During Closed Session

Recently, the Illinois Attorney General issued an advisory opinion ruling in favor of a public body in  connection with a complaint that the public body violated the Open Meetings Act. 2014 PAC 28285

A resident filed a complaint claiming that a city council violated the OMA in two respects: (1) in requiring members of the public to leave the council chambers and wait outside while the city council conducted a closed session and (2) when the council amended a motion to consider the purchase of property during open session at that same meeting.  

The PAC did not find a violation on either count. First, the PAC acknowledged that an appellate court had previously ruled that it was not a violation of the OMA to require the public to leave the building during a closed session. In that case (In re Foxfield Subdivision), the closed session had lasted from 7:10 pm to 1:15 am, and according to the court, it was a cold and blustery night. The PAC noted that the time period the public had to wait outside in this situation was shorter (about 40 minutes). Second, the PAC determined that the manner in which a public body makes motions, including amending those motions, is not governed by the OMA, so the PAC declined to address that issue. However, the PAC did find that the council's agenda on this item did comply with the OMA requirement of listing the general subject matter of the action.

Full disclosure: Ancel Glink represents the public body that was the subject of this complaint.

Monday, March 26, 2018

Creation of New Records Not Required By FOIA

The Illinois Appellate Court recently addressed the issue of the creation of new records under FOIA.  In Martinez v. Cook County State’s Attorney’s Office, Martinez submitted a FOIA request to the State's Attorney's Office (SAO), seeking “each instance in which information obtained using a cell site simulator… was used in a criminal prosecution….”  The SAO denied the request, claiming that FOIA does not require a public body to release nonexistent records, and even if the records did exist, compliance would be unduly burdensome.  The SAO contended there was no way of knowing if any cases exist or the identity of criminal cases where a cell site simulator was used to obtain evidence. 

In response to the denial, Martinez requested that the SAO send an email to every attorney in the office, asking them to identify any cases in which such evidence was obtained.  He also requested that the SAO conduct a server-wide search of emails.  The SAO again responded with a denial, arguing that the request was unduly burdensome.  The SAO offered to discuss narrowing the requests and Martinez subsequently narrowed his requests to only “terrorism and narcotics cases.”  The SAO again denied the narrowed request as nonexistent, unduly burdensome, and exempt under attorney-client privilege, attorney work product, and the deliberative process exemption.   

Martinez then sued the SAO  alleging violations of FOIA.  The trial court ruled in favor of the SAO , and the Appellate Court affirmed. The Appellate Court found that the first request sought “instances,” not actual records.  The Court has previously held that the requested records must be reasonably identified as a record, and not a request for data, information, or statistics which an agency may not generally create.  The Court found that the SAO's denial was proper as FOIA does not require a public body to create new records in response to a FOIA request.  As for the second request, the Court noted that the request was presented as a question, and FOIA does not require the public body to answer questions.  Further, the Court noted that the second request sought a search, not a public record.  As such, the Court found that both denials were warranted. 

Post Authored by Erin Pell, Ancel Glink

Tuesday, March 20, 2018

Public Employee Wage Records Subject to Release Under FOIA

In PAC Op. 18-005, the PAC found a public body in violation of FOIA for denying a request for employee compensation records. The requester had filed a FOIA request for a copy of records identifying the salaries paid to all city employees for a two year period. The city denied the request, arguing that the records were exempt from release under 7(1)(c) as release would be an invasion of personal privacy. The denial was appealed to the PAC, which rejected the city's argument, finding that the salary information of public employees is subject to release under FOIA. 

This ruling is consistent with previous PAC opinions finding that the public is entitled to access salary and compensation records of public employees.

Monday, March 19, 2018

Termination for Violation of Residency Requirement Upheld

The Seventh Circuit Court of Appeals recently addressed a municipality's residency requirement for firefighters in Cannici v. Village of Melrose Park

Cannici lived in Melrose Park until 2008 when he and his family purchased a home in Orland Park. According to the opinion, Cannici lived in the Melrose Park home during the week, and his family lived in the Orland Park home. In 2013, Cannici rented out the Melrose Park home, but reserved a portion of the home in the basement for his exclusive use in order to maintain residency. However, Cannici slept at his Orland Park home from 2013 to 2016, when the Village brought charges against him for violating the residency requirement. The Village conducted a hearing to hear testimony and arguments relating to his residency, and at the conclusion of the hearing, terminated him.

Cannici then sued the Village in federal court, arguing that his termination violated his due process and equal protection rights. The Seventh Circuit held that his procedural due process rights were not violated where he had sufficient relief under the Administrative Review Act. The Court also rejected his claim that his equal protection rights were violated where the Village followed the statutory procedure prior to termination in providing him with written charges, a hearing, and the opportunity to present evidence. 

Post Authored by Julie Tappendorf 

Thursday, March 15, 2018

City Preliminarily Enjoined From Evicting Residents From Group Home

The City of Springfield imposes zoning restrictions on family care residences that require a distance of at least 600 feet between these uses. That zoning regulation was the subject of a federal lawsuit that argued that the City discriminated against three disabled individuals living in a residence located within 600 feet of an existing disabled group home. 

When the city learned that a particular home was being used as a group home and that it was located across the street from another group home it notified the second home that it would need to cease the group home use or obtain a conditional permitted use (CPU). The owners applied for the CPU, but the city denied it after a hearing at which a number of neighborhood residents objected to the use. Following that denial, plaintiffs sued, claiming that the city discriminated against disabled persons in violation of the Fair Housing Act, Americans With Disabilities Act, and the Rehabilitation Act of 1973.

Plaintiffs' theories of liability were as follows: (1) the 600 foot spacing requirement discriminates against disabled persons because there is no similar spacing requirement for non-disabled persons; (2) the spacing requirement has a disparate impact on disabled persons; and (3) by denying the CPU, the city failed to make a reasonable accommodation.

The trial court granted plaintiffs an injunction against the city from evicting the residents while the case proceeded. The city appealed, arguing that plaintiffs did not meet the injunction standards because they failed to show a reasonable likelihood of success on their theories of liability.

The Seventh Circuit agreed with the trial court on one basis - that the plaintiffs had a reasonable chance of success on their "reasonable accommodation" theory. Specifically, the Seventh Circuit determined that the request by plaintiffs that the city approve a CPU to allow their group home was a reasonable request that could support an argument that it was a reasonable accommodation. As a result, the Seventh Circuit upheld the preliminary injunction while the merits of the case continue. Valencia v. City of Springfield (7th Cir. March 1, 2018)

Post Authored by Julie Tappendorf

Wednesday, March 14, 2018

No Bias Shown to Disqualify Electoral Board Member

Jan McDonald filed petitions to run for Cook County Clerk in the March 20th primary election. Objections were filed, and the Cook County Electoral Board convened to hear the objections. McDonald filed a motion with the Electoral Board to disqualify Cook County Clerk David Orr from serving on the Board (under state law, the Cook County Clerk, States Attorney, and Circuit Court Clerk make up the Electoral Board). She argued that Orr should be replaced with a public body member appointed by the Chief Judge.

Two days after she filed her motion to disqualify Orr with the Electoral Board, she filed a lawsuit seeking the same relief. The trial court ruled against her, finding that Orr's continued participation on the Electoral Board did not violate Section 10-9 Election Code because he was not a current candidate for the County Clerk position. Section 10-9 of the Election Code provide that a member of the board who is a candidate for an office for which an objection has been filed is disqualified from serving on the Electoral Board that hears that particular objection - but, since Orr was not a candidate for that office, this section did not apply.

The court also rejected McDonald's arguments that Orr or Orr's replacement, which by statute would be the County Treasurer had a personal or political interest and conflict under Cook County General Order No. 21. The court determined that the mere fact that Board members may be political allies or opponents does not constitute the type of bias to support disqualification. As a result, the court rejected McDonald's argument for disqualification of Orr and other Electoral Board members.  McDonald v. Cook County Electoral Board, 2018 IL App (1st) 180122-U.

In a related decision issued a day after this decision, the appellate court also remanded McDonald's appeal of the Electoral Board's decision to remove her from the ballot for alleged widespread alteration of petition sheets in her nomination papers. McDonald v. Cook County Electoral Board, 2018 IL App (1st) 180406.

Post Authored by Julie Tappendorf

Tuesday, March 13, 2018

Lawsuit Challenging Recapture Ordinance Barred Because it Was Untimely

Property owners filed a lawsuit against a municipality challenging the legality of a recapture ordinance that imposed recapture fees on future subdivision of their property. The municipality filed a motion to dismiss the case, arguing that the case was filed after the statute of limitations expired, so it was not timely and that the recapture ordinance was valid. 

The recapture ordinance was approved by the village board in 2011. Under the recapture ordinance, the village sought to recover its costs of putting in certain public improvements that benefited properties near these improvements. The trigger to pay the recapture was subdivision of the benefited properties.

Six years after the recapture ordinance was approved, plaintiffs filed a complaint against the village claiming that the recapture agreement was unenforceable because it was signed only by the village, plaintiffs had no notice of it, and because plaintiffs were the only property owners subject to the recapture payments. 

The village first argued that the five year statute of limitations had passed, so the suit should be dismissed. The court agreed, finding that the five year statute of limitations for actions to "recover damages" applied. The court determined that the approval of the ordinance was the trigger for the statute of limitations, and the time period for challenging the ordinance expired 5 years after the ordinance was passed.

Because the case was not filed within the 5 year statute of limitations, the court did not address plaintiffs' claims that the village did not have authority to adopt the ordinance. Mikenas v. Village of Westmont, 2018 IL App (2d) 170539-U.

Post Authored by Julie Tappendorf

Monday, March 12, 2018

Upcoming Legal Program For Elected Officials

Elected officials may be interested in attending an upcoming training program offered by the College of DuPage titled "10 Best Legal Practices Every Elected Official Should Know!" Julie Tappendorf (blog author) will be the presenter.  Here is information about the program:

Topic:  10 best legal practices every elected official should know!

Date and Time:
Wed, April 11, 2018
5:30 PM – 7:30 PM CDT

College of DuPage
425 Fawell Blvd
Homeland Security Education Center Room 1022
Glen Ellyn, IL 60137

5:30pm Registration and networking
6:00pm Presentation
7:00pm Q&A

Presenter: Julie Tappendorf, Ancel Glink


Friday, March 9, 2018

Zoning Challenge to Planned Parenthood Dismissed

Almost 10 years ago, Fox Valley Families Against Planned Parenthood filed a lawsuit against Planned Parenthood and others claiming that Planned Parenthood's use of property violated local zoning. The case bounced back between the trial and appellate court. Ultimately, the court granted the defendants' motion to dismiss the case, and the case was appealed.  

In Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois, 2018 IL App *(2d) 170137, the appellate court upheld the dismissal of the case. The issue before the appellate court was whether Planned Parenthood's use complied with the city's zoning ordinance. 

Plaintiffs argued that the use was prohibited in the underlying zoning district because it was a "nonprofit use" that required a special use permit.  Defendants, on the other hand, argued that the use was permitted by-right in the underlying zoning district under the category "Offices, business and professional, including medical clinics," consistent with the City of Aurora's interpretation of its zoning ordinance.

The court analyzed the zoning ordinance and accepted defendants' interpretation that the use was permitted as a medical clinic. The court determined that the non-profit nature of a proposed medical clinic use was irrelevant as the zoning ordinance did not distinguish between the two. Because Planned Parenthood's use fell within the medical clinic category, a use that is permitted by-right in the zoning district in which the property is zoned, the court concluded that plaintiff's zoning challenge was properly dismissed.

Post Authored by Julie Tappendorf

Thursday, March 8, 2018

PAC Rejects "Trade Secret" Exemption in Binding PAC Opinion

The PAC recently found a public body in violation of FOIA when it failed to release public records relating to redevelopment project costs in response to a FOIA request.  PAC Op. 18-004.

A newspaper reporter filed a FOIA request with a municipality seeking a copy of the "latest revised redevelopment cost budget" submitted by a private developer to the municipality. The city denied the request under section 7(1)(g), which protects trade secrets and commercial or financial information, where that information is furnished under a claim that it is proprietary, privileged or confidential and release would cause competitive harm. 

The requester filed a complaint with the PAC. The city argued that the private developer had submitted the budget cost information to the city with the belief that the information would remain confidential. The PAC rejected the city's argument, finding that even if the developer had furnished the financial information to the city under a claim of confidentiality, the city failed to establish that disclosure of this information would cause competitive harm to the developer. The PAC noted that the exemption in 7(1)(g) required the city to establish that the information was provided under a claim of confidentiality and that disclosure would cause competitive harm - harm that must be "substantial" in nature, according to the PAC. Because the city failed to provide facts or evidence to demonstrate how disclosure would result in competitive harm to the developer, that exemption did not apply. The PAC acknowledged that the city provided information about how release would harm the city by dissuading developers from doing business with the city, but that was not relevant to the PAC. 

In sum, the PAC rejected the city's use of section 7(1)(g) to deny the FOIA request for financial information submitted by a private entity.  

Post Authored by Julie Tappendorf

Tuesday, March 6, 2018

Embedding Photo Could Violate Copyright Act

The rapid rise of social media has created a number of new legal questions and, in most cases, the law is slow to catch up with technology. One example is the Copyright Act, which does not reference "tweet," "viral," or "embed" - all of which were at issue in a recent federal case out of New York. Goldman v. Breitbart News Network, LLC, et seq.

This dispute involved the use of a copyrighted photo. Goldman had snapped a photo of Tom Brady in East Hampton in 2016. After he loaded the photo to his Snapchat account, the image went "viral" on a number of social media platforms, including Twitter. Defendant Breitbart and other news outlets and blogs published a variety of articles featuring Goldman's photo of Tom Brady. None of these outlets copied and saved the photo on their own servers, but instead all "embedded" the image through Twitter's social media platform's program. 

Goldman's lawsuit claims that all of the defendant news outlets violated the Copyright Act by embedding his copyrighted photo without his permission or consent. The news outlets argued that  because they did not copy and store the photo on their own servers, there was no infringement of Goldman's copyright. Defendants claim that "embedding" the photo did not display it, but merely provided instructions for the user to navigate to the page where the photo resided.

The court rejected the news outlets' argument that to establish a Copyright Act violation, Goldman had to show that the outlets actually "possessed" the image on their own server. Instead, the court determined that the "Server Test" was not the standard that would be applied to decide copyright cases involving the use of online images and photographs. 

Obviously, this case could have far-reaching implications for social media users who routinely embed copyright-protected material through their own sites and accounts. The case is not over yet, however, because the court acknowledged that the news outlets still have a number of potential defenses to Goldman's copyright claims, including "a very serious and strong fair use defense." So, this case will move forward and, hopefully, provide guidance on what potential defenses are available under the Copyright Act to protect social media users who link and embed photos and other images.

Post Authored by Julie Tappendorf

Thursday, March 1, 2018

Green Party Candidate Removed from Ballot for Petition Inconsistencies

A candidate filed nomination papers to run for the office of Cicero Township committeeman. An objection was filed based on the grounds that the nomination petitions filed by the candidate stated that the petition signers were electors in Oak Park Township, not Cicero Township. The Cook County Electoral Board denied the objection, and the trial court affirmed. 

The objector appealed to the appellate court, and the appellate court ruled in favor of the objection, and ordered the candidate's name removed from the ballot. Neal v. Cook County Electoral Board, 2018 IL App (1st) 180321. The appellate court determined that the reference to the wrong township created a "basis for confusion" as to whether the signatures were proper. The court also determined that the signatories never asserted they were affiliated with the Green Party, meaning they had no authority to nominate the candidate to run as the Green Party candidate. As a result of these inconsistencies, the court ordered the candidate's name be removed from the March 20, 2018 primary ballot.

Wednesday, February 28, 2018

PAC Interprets Building Plan Exemption in FOIA

Section 7(1)(k) of FOIA exempts architects' plans, engineers' technical submissions, and other construction related technical documents for (1) private projects (i.e., not publicly funded) and (2) public projects "but only to the extent that disclosure would compromise security." 5 ILCS 140/7(1)(k). There are two different views on how to interpret this exemption: (1) does the quoted language apply only to plans for public projects or (2) does the quoted language apply to both private and public project plans. 

The PAC recently issued an advisory opinion providing clarification on this FOIA exemption. In 2013 PAC 26268, the PAC determined that a public body did not violate FOIA when it denied a request for building plans relating to a construction project on residential property of a neighbor to the requester. The requester had argued that the public body could not deny the request unless it demonstrated that disclosure would compromise security. The public body argued that the quoted language only applied to publicly financed projects.

The PAC disagreed with the requester and ruled in favor of the public body, finding that the "compromise security" language only applies to projects constructed with public funds. In this particular case, the plans being requested related to a privately funded construction project, so the public body did not have to demonstrate that release of the requested plans would compromise security. Instead, the PAC determined that the Village properly withheld the plans because "records pertaining to the construction of privately-funded building projects are exempt from disclosure under the plain language of section 7(1)(k) regardless of whether their disclosure would compromise security."

This opinion provides useful guidance to public bodies in applying this FOIA exemption.

Post Authored by Julie Tappendorf

Disclaimer: Ancel Glink represented the public body in responding to the PAC request for review.

Monday, February 26, 2018

PAC Finds City in Violation for Not Responding to FOIA

In its third binding opinion of 2018, the PAC found a municipality in violation of FOIA for failing to comply with, properly deny, or otherwise respond to a FOIA request. PAC Op. 18-003.

The requester submitted a FOIA request to the city asking for records pertaining to a city official's meeting schedule for a four month period in 2016. The city did not respond to the FOIA request, nor did the city respond to the PAC's "request for review." When the PAC reached out to the city clerk, she responded that the documents had already been provided to the requester. According to the PAC opinion, the city was unresponsive to follow up contacts from the PAC.

The PAC found the city in violation for not responding to the FOIA request. The PAC noted that even if the request were a duplicate one, and records had been previously provided, the city was still required to issue a written denial under FOIA. 

Friday, February 23, 2018

Another Bill Restricting Government Travel Expenses

HB 5633 was recently introduced to prohibit municipalities and counties from spending local funds derived from the Local Government Distributive Fund (LGDF) on travel, lodging, or dining. There are no limitations to this wholesale ban on these expenses, so this would seem to apply to any of these expenses, even expenses incurred in mandatory training or similar programs. This bill follows legislation we reported on a few weeks ago that prohibits local governments from reimbursing employees for conference expenses. 

Thursday, February 22, 2018

2 Bills Would Amend Criminal Records Provision of FOIA

Last week, two bills were introduced to amend the Freedom of Information Act (FOIA). Both bills would modify section 2.15 of FOIA, the section that deals with arrest reports and criminal history records.

SB 2944 would, if passed, amend FOIA to prohibit the release of a photograph taken in connection with an arrest report under section 2.15 of FOIA unless the individual has been formally charged by indictment, information, or complaint. 

HB 4932 would, if passed, also amend section 2.15 of FOIA to provide that any FOIA request for arrest reports or criminal history records must be submitted to the public body that created the public record. The bill would prohibit a public body from releasing a record that falls under this section if it did not create the record and requires the public body to refer the requester to the public body that did create the record.

Post Authored by Julie Tappendorf

Wednesday, February 21, 2018

Write-In Candidate Loses Appeal

In Illinois, to run as a write-in candidate in a local election, the candidate must file a written declaration of intent with the proper election authority. A candidate for the office of commissioner of the Metropolitan Water Reclamation District (MWRD) filed his declaration of intent to be a write-in candidate with the Cook County Clerk. He did not file his declaration with the Chicago Board of Election Commissioners (Board), however. Because of that, he was notified by the Board that his name would not be printed on the ballot at the March election.

The candidate sued, claiming he complied with the requirements of Illinois statutes by filing his declaration with the County Clerk. Both the circuit court and the appellate court disagreed, and ruled against the candidate. The appellate court agreed with the Board that section 17-16.1 of the Election Code requires that write-in declarations of intent be filed with "the property election authority or authorities." (emphasis added). In this case, that means that the declaration had to be filed with both election authorities (Cook County which is the election authority for areas outside of Chicago and the Chicago Board of Election Commissioners which is the election authority for Chicago). Since the candidate only filed the declaration with one election authority and not both authorities, any write-in votes for the candidate will not be counted.

You can read the case here: Cook v. Orr

Post Authored by Julie Tappendorf

Tuesday, February 20, 2018

Bill Proposes Local Government Email Act

Lost in the shuffle of numerous bills being introduced in both the Illinois House and Senate is a bill creating the "Local Government Email Act." This bill, if passed, would affect the communications of employees, officials, and officers of all units of local government and school districts in the state. We reported on similar legislation introduced last year here - that legislation did not pass.

The stated policy of HB 4375 is that all emails that are in connection with the transaction of public business sent or received by a unit of local government or school district or an employee, staff member, trustee, board member, elected official, or officer of a unit of local government or school district are public records regardless of the device used to send or receive the email.

Section 10(a) of the bill provides that if a local government or school district provides a government email address to any of its employees, officials, or officers it must provide a government email address to all government employees, officials, and officers.

Section 10(b) of the bill provides that if a government email address is provided to government employees, officials, or officers, then those individuals must use that government email for all government communications.

Section 10(c) of the bill provides that if a government official, officer, or employee has a government email address, and receives or sends a government communication on his or her private email, the individual must then forward the government communication to his or her government email account.

That same section also provides that if a government official, officer, or employee does not have a government email address, then he or she must provide a copy of all government communications sent/received on his or her personal  email account to the local government or school district. 

We will certainly keep track of this bill since it would affect all units of local government (interestingly, the bill does not apply to emails sent/received by state officials, officers, or employees).

Post Authored by Julie Tappendorf

Friday, February 16, 2018

Water Bill Customer's Name Not Exempt Under FOIA

A requester submitted a FOIA request with a city asking for a copy of the water bill for a particular address. The city provided a copy of the bill, but redacted the customer's name, mailing address, and account number, citing 7(1)(b) of FOIA ("private information"). The requester filed a complaint with the Public Access Counselor (PAC) office of the Attorney General, who found the city in violation of FOIA in its second binding opinion of 2018.

In PAC Op. 18-002, the PAC rejected the city's argument that the water customer's name was exempt from release under the "private information" exemption (section 7(b) of FOIA), finding that the definition of "private information" in section 2(c-5) of FOIA did not expressly exempt a person's name from release. The PAC also cited section 2.5 of FOIA that states that records of a public body that relate to the receipt of public funds are deemed public records subject to release, and determined that a utility bill "clearly relates to the City's receipt of public funds." 

In sum, the PAC ordered the City to provide a copy of the requested water bill to the requester displaying the customer's name.

Post Authored by Julie Tappendorf

Thursday, February 15, 2018

Library District Annexation Bill Introduced

There has been quite a bit of new legislation introduced over the past few weeks, including a recent bill that would affect library districts in Illinois.

HB 4519 would amend the Public Library District Act to mandate that a referendum be held prior to annexing territory to a library district of any property that meets the following criteria: (1) the territory is within the boundaries of a municipality/school district that is within the district, (2) the territory is contiguous to the district, and (3) the territory is not served by a local public library. 

Currently, the law only requires a referendum to annex territory meeting this criteria if 10% of the voters in (a) the library district or (b) the property to be annexed file a petition for a referendum (what is known as a backdoor referendum). If this bill passes, however, the library board will be required to submit the question of annexation to referendum after it passes the annexation ordinance and only if a majority vote in favor of the referendum can the territory be annexed to the library district. 

Tuesday, February 13, 2018

Bill Would Eliminate "Builder's Choice" on Form of Performance Security

Under Illinois law, a municipality or ocunty can require a developer or builder to post security to guarantee the completion of public improvements related to a development. However, the law currently allows the developer or builder to choose the form of the security. Specifically, the law states that if a municipality or county requires performance security to be posted, the builder or developer has the option to file a letter of credit, surety bond, or letter of commitment in an amount equal to or greater than 110% of the amount of the bid on the particular improvements, and the municipality or county is obligated to accept it. 

HB 4531 would modify the statute to eliminate the language giving the developer or builder the choice on the form of security that it posts with the municipality or county. If passed, the law would allow a municipality or county to choose the form of security (except for cash bonds, which would be eliminated from the "menu" of forms of security under the statute). The bill would also eliminate the limitation on the amount of security that must be posted (currently, the statute allows the builder or developer to post security of its choosing in an amount of 110% of the improvements). Finally, the bill removes the home rule preemption language.

We'll monitor this legislation to see if it moves forward.

Monday, February 12, 2018

New OMA and FOIA Bills Introduced

There have been a couple of new bills introduced to amend the Open Meetings Act. The first (HB 4583) adds new obligations on public bodies in complying with the OMA. The second (HB 5433) would offer OMA and FOIA training alternatives to municipal officials. 

HB 4583 would amend the OMA to do the following:

  1. Require that all special meetings be noticed in the same manner as regular meetings.
  2. Eliminate the provision in the OMA that states that the failure of a public body to post notice and an agenda of a meeting on its website does not invalidate the meeting or any action taken at the meeting.
  3. Require a public body with a website to post the meetings of all regular, special, and emergency meetings, including meetings of subsidiary bodies.
  4. Authorize a court to declare null and void any final action taken at a meeting in violation of the law, whether the meeting is closed or open. (Currently, the OMA only authorizes a court to invalidate actions taken in closed session).
  5. Mandates a court to award reasonable attorneys' fees to a prevailing party who brought a lawsuit to enforce the OMA. (Currently, the court has the authority, but not the obligation, to award attorneys' fees to prevailing parties).

HB 4533 would amend the OMA to authorize an alternative training program for elected or appointed officials. Currently, the only authorized OMA training for members of a public body is the electronic training program offered by the Public Access Counselor's office of the Illinois Attorney General. If passed, this bill would allow members of public bodies of a municipality to satisfy their OMA training obligation by attending a training conducted or sponsored by an organization that represents municipalities (i.e., the Illinois Municipal League). 

The bill also proposes to amend FOIA to authorize a similar alternative training program for FOIA officers.

Thursday, February 8, 2018

Alderman's Texts and Emails on Private Device Not Subject to FOIA According to Court

The use of private cell phones by elected officials brings up a variety of legal issues, including whether the emails or text messages sent and received by the private device are subject to public release under the Freedom of Information Act. We have discussed this issue at length on the blog, including reporting about the Illinois appellate court's decision in Champaign v. Madigan where the court held that communications sent/received on city council members' private cell phones might be subject to FOIA under certain circumstances. You may remember that the Illinois Attorney General had taken a much broader position - that all communications sent/received by an elected official is subject to FOIA but the court limited that in its ruling in Champaign.

Recently, the Cook County Circuit Court dealt with this issue in a case called Ahmad v. City of Chicago. In that case, Ahmad had filed a FOIA with the City of Chicago for the release of texts and emails sent by or to a City Alderman relating to Ahmad or his property. The City denied the FOIA request, and Ahmad sued claiming that the communications were releasable because they related to City business. The City argued that because an Alderman is not a "public body," FOIA did not apply to the communications on the Alderman's private cell phone.

The circuit court agreed with the City, finding that the Alderman was not acting as a "public body" when he sent and received emails and texts to and from constituents relating to Ahmad and his property. The court noted that FOIA only applies to public bodies, not public officials. The court also acknowledged the holding in the Champaign case that there are three situations where communications sent to received by an elected official on his or her private device would be subject to FOIA - i.e., when those communications are (1) forwarded to a government account; (2) sent during a meeting of the public body; or (3) sent to a majority of the public body. Unless one of these three circumstances exists, these emails and texts were not subject to FOIA because the Alderman was not a "public body" subject to FOIA. The court rejected Ahmad's argument that Chicago Alderman are acting in a quasi-executive manner in zoning matters, finding that the ultimate authority in granting zoning approvals lies with the City Council and not just one Alderman. 

In sum, the court made it clear that the "public body" is the legislative body as a whole, and not an individual Alderman. Because an individual Aldermen is not a public body under FOIA, he or she is not subject to FOIA's disclosure requirements except in one of the three limited circumstances discussed in the Champaign case.

Tuesday, February 6, 2018

Board Member Political Emails Not Covered by OMA

A reader shared a recent advisory opinion issued by the Public Access Counselor of the Attorney General that addressed a claim that board members violated the OMA when they emailed each other about a referendum. The PAC ruled that the members of the board did not violate the OMA in 2017 PAC 49878.

A school district was contemplating issuance of working cash fund bonds in the amount of $20 million. In response, residents of the district filed a referendum petition to place the question of the issuance of the bonds on the spring 2018 ballot. Another group of residents filed an objection to the validity of the referendum petition. The PAC opinion notes that a couple of the school district board members had emailed each other about the referendum objection process, which led to the complaint filed with the PAC claiming the board members violated the OMA.

The school district argued that the board member emails did not violate the OMA because the board members were not "discussing public business" in those emails under section 2(a) of the OMA. The PAC agreed, finding that the emails between the board members were limited to the mechanics of filing the objections to the referendum petition and not business of the school district. Instead, the board members were acting as private citizens exercising their political rights, and not representatives of the school district board. Board members' private actions "are not automatically converted into the business of the Board solely because the actions could have an impact on the business of the public body." In short, the PAC found the emails to be more in the nature of "political discussions," which are not covered by the OMA. 

Monday, February 5, 2018

Illinois' Gun Ban Within 1000 Feet of Public Parks Unconstitutional

On February 1st, the Illinois Supreme Court found an Illinois statute that bans persons from carrying or possessing firearms within 1,000 feet of a public park unconstitutional. People v. Chairez, 2018 IL 121417.

The Unlawful Use of Weapons Statute, 720 ILCS 5/24 et seq., prohibits people from carrying guns in certain public areas, including schools, public housing, public parks, courthouses. The law also prohibits guns on any public way within 1,000 feet of schools, public parks, courthouses, public transportation facility, or public housing. A violation is a class 3 felony.

Mr. Chairez pled guilty to possessing a firearm within 1,000 feet of a public park but later sought to vacate his conviction based on his claim that the statute was unconstitutional. The Illinois Supreme Court agreed, and struck down that portion of the statute that banned guns within 1,000 feet of a public park. The Court determined that the 1,000 ban was a severe burden on a person's Second Amendment right to carry a firearm, and that the state had failed to show how the 1000 foot ban actually reduces gun violence to children in public parks. The Court also noted the difficulty in a person determining the 1,000 foot area for purposes of compliance with the statute.

The Court did not address the 1,000 foot ban as it applies to the other statutory public areas (i.e., schools, courthouses, public housing), nor does the opinion affect the ban within public parks and the other statutory public areas.

Post Authored by Megan Mack and Julie Tappendorf, Ancel Glink

Wednesday, January 31, 2018

Teacher Fired for Social Media Posts About Student

A teacher was fired for her social media activities that referenced a dispute she had with a student in one of her classes. After the student challenged an answer on a test that had been marked wrong by the teacher, both the teacher and the student posted about the incident, and each other, on various social media platforms, including Facebook.  After the teacher's posts were made available to the school, the teacher was terminated. According to news stories about the termination, the teacher's posts included the following:
After the semester is over and she's no longer my student, I will post her name, her picture and her bio on Facebook, Twitter, Instagram and LinkedIn. Count on it. For now, I'm bound by university rules that grant her more latitude in freedom of speech than I have. After she graduates and I retire, all bets are off.
In another Facebook post, the teacher posted a meme of a wrapped present with the following message: 
I'm sorry if I upset you. Please accept this complimentary (sex toy) and go f--- yourself. 
As we have discussed in past blog posts, employees can be disciplined, and even terminated, for their social media activities, subject to certain constitutional and labor law rights and protections. Employees need to be aware that their social media activities are not always protected.

Post Authored by Julie Tappendorf

Tuesday, January 30, 2018

Court of Appeals Finds Reapportioned Ward Map Constitutional

The Seventh Circuit Court of Appeals recently upheld the City of Chicago Heights' reapportionment map of its aldermanic districts against a challenge that the map was unconstitutional. McCoy v. Chicago Heights Election Commission,

In 1987, a class of African-American plaintiffs sued the City and the Chicago Heights Park District claiming that the City and Park District's methods for electing representatives diluted their voting rights. Early in the litigation, these election practices were found to violate the Voting Rights Act of 1965, and the parties entered into various consent decrees. The most recent consent decree, entered in 2010, established a 7-ward single aldermanic form of government, and included a ward map that complied with applicable constitutional requirements. The decree required the City to reapportion wards as population changed.

In 2014, the City sought court approval of a reapportioned map that included population changes from the 2010 census results. Plaintiffs objected to the proposed map, and after various hearings, the court approved the reapportioned map. 

Plaintiffs appealed to the Seventh Circuit, asking the court of appeals to reverse the district court's approval of the reapportioned ward map. The plaintiffs also argued that the district court should have considered plaintiffs' own proposed map.

The Seventh Circuit rejected the plaintiffs' arguments, and upheld the reapportioned ward map approved by the district court. The Seventh Circuit first held that the local government has the responsibility to prepare and submit a reapportioned ward map and the district court did not err in refusing to consider plaintiffs' proposed map. Next, the Court addressed plaintiffs' argument that the City's map violated the Equal Protection clause. The Court noted that the Constitution does not require "exact mathematical precision" in drawing voting district boundaries, but does require a government to make an "honest and good-faith effort to construct its districts as nearly of equal population as is practicable." Any deviation of less than 10% is presumptively constitutional. Any deviation greater than 10% requires the government to present justifications for the deviation.

In this case, the City's map had an overall deviation of 12%, so the district court held a hearing to allow the City to present its justifications. The City presented evidence to support the deviation, including the City's consideration of historical ward boundaries, natural boundaries of major thoroughfares in drawing the ward map. The district court had accepted the City's justifications in approving the ward map, and the Seventh Circuit agreed that the map satisfied the constitutional principle of "one person, one vote." 

Post Authored by Julie Tappendorf

Monday, January 29, 2018

PAC Rejects Village's Use of "Deliberative Process" FOIA Exemption

The Public Access Counselor (PAC) issued its first binding opinion of 2018 finding a public body in violation of FOIA in PAC Op. 18-001.

A reporter had filed a request with a village for an unredacted copy of the resignation letter that had been submitted by the former village president. The village provided the letter to the reporter but had redacted one portion, citing 7(1)(f) of FOIA. The reporter filed a complaint with the PAC claiming that village violated FOIA by redacting the requested record. The village responded that the information was redacted because it was exempt under 7(1)(n) and 7(1)(f) of FOIA. The village supported its denial by stating that the redacted information related to a public body's adjudication of employee grievances and that information within the letter expressed opinions that are not final.

The PAC reviewed the unredacted record and determined that the village violated FOIA in redacting a portion of the resignation letter. The PAC rejected the village's argument that the redacted information was subject to the "deliberative process" exemption of 7(1)(f), finding that although the information may have been the former village president's opinion regarding his decision to resign, that opinion was not expressed as part of a "deliberative or decision-making process." The PAC then noted that the communication represented his "final decision" to resign, so it could not be part of a predecisional, deliberative process. It also was not part of the "give and take" of a decisional process. 

The PAC also rejected the village's argument that the redacted information was exempt under 7(1)(n) because it related to the adjudication of an employee grievance or disciplinary case because the village had not identified any ongoing or contemplated grievance, complaint, or disciplinary action that was or would be adjudicated. 

In sum, the PAC found the village in violation of FOIA and ordered the village to release an unredacted copy of the resignation letter to the reporter.

The PAC opinion provides some insight into how the PAC interprets the "deliberative process" exemption contained in 7(1)(f) of FOIA.

Post Authored by Julie Tappendorf

Thursday, January 25, 2018

Court Dismisses Discrimination Claims Because Plaintiff Failed to File Complaint with Human Rights Commission

In Gillard v. Board of Trustees of Community College District 508, the appellate court dismissed a case alleging discrimination in a place of public accommodation in violation of the Illinois Human Rights Act because the plaintiff failed to exhaust her administrative remedies. The appellate court made it clear that the circuit court has no jurisdiction to hear the alleged discrimination claims because the plaintiff did not first file a complaint with the Human Rights Commission within 180 days of the alleged discrimination. The court rejected the plaintiff's argument that the court should hear her case because she "inadvertently" missed the deadline to file with the Commission, and her case was dismissed.

Post Authored by Julie Tappendorf

Wednesday, January 24, 2018

Bills Would Prohibit Use of Public Funds for Employee Professional Development and Training Expenses

A couple of new bills have been introduced in the Illinois General Assembly that would restrict the use of local government funds for expenses related to local officials' attendance at conferences or conventions.  At this time, none of these have passed the house or senate.

HB 4246 would prohibit the use of any public funds by a unit of local government for expenses connected with attendance by an employee or contractor of a unit of local government at any convention or gathering of personnel. The bill defines "convention or gathering of personnel" to mean any gathering where employees or contractors from 2 or more units of government gather for professional education, training, retraining, or personnel development. 

This bill would seem to cover conferences hosted by the ILCMA, IML, TOI, IAPD, and ILA, among many other conferences that provide education and professional development training to local government employees. The bill would exempt public safety personnel from the ban, and would allow public funds to be spent pursuant to a contract that predated the new law - that would appear to cover employment agreements where the unit of local government agreed to cover an employee's conference and training expenses.

HB 4247 would amend the State Finance Act to prohibit state appropriations for contracts to rent or pay for access to physical space for booths, hospitality suites, or other physical space at a convention or gathering of personnel (again, the bill exempts conferences for public safety personnel). 

HB 4248 appears to be a combination of the provisions of HB 4246 and 4248.

Because these bills, if passed, would have a significant impact on local government expenditures on professional development, training, and education of its employees, we will keep you posted on their progress through the General Assembly.

Post Authored by Julie Tappendorf

Tuesday, January 23, 2018

Bill Would Prohibit Township Officials From Employment in Township

A new bill was introduced last week that may be of interest to Illinois Township officials.  SB 2299 would amend the Illinois Township Code to prohibit any township elected official (trustee, supervisor, highway commissioner, clerk, assessor, or collector) from being employed by the township in any capacity other than the elected position.

We will keep you posted on this bill.

Post Authored by Julie Tappendorf

Wednesday, January 17, 2018

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

We have written a number of blog posts about employee activity on social media and the extent to which an employer can discipline, or even terminate, an employee for social media activities. That is the subject of today's post which was first published on Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink. You can read the original post here: Court Dismisses Free Speech Suit by Deputy Fire Chief against Calumet City

Last week, an Illinois federal district court dismissed a suit against the City of Calumet City after it discharged a Deputy Fire Chief allegedly for a series of critical and political remarks he made on Facebook. Banske v. City of Calumet City, 17 C 5263, 2018 WL 372145 (N.D. Ill. Jan. 11, 2018). According to news reports about the social media posts, his comments included the following:
"It's bad enough that I have spent a lifetime being called a racist by idiots on the left but now the idiots like Mitt Romney are calling me one too because I support Trump. Hey Mitt-go F yourself."
"Protest anything you want but if you interfere with my right to travel or get to my kids or my home you're gonna get run over. And I really don't care if you get hurt."
After the City was made aware of the posts, the Deputy Chief claimed he had a phone conversation with the City's personnel director and the assistant to the Mayor about his Facebook commentary but was not directed to stop posting. Later, according to the Deputy Chief, the Fire Chief informed him that he was being discharged “due to concerns over his private political views” on his Facebook page.
Subsequently, the Deputy Chief filed a lawsuit in federal court against the City, the Mayor, and others alleging that his First Amendment rights were violated when he was terminated. 

In considering the Deputy Chief's claims, the district court analyzed the legal standards for public employee speech under the First Amendment. While public employees have a right to engage in free speech, that right is tempered by a few factors. To establish a First Amendment retaliation claim, a public employee must show that:

  1. he engaged in constitutionally protected speech; 
  2. he suffered a deprivation because of his employer's action; and 
  3. his protected speech was a “but-for” cause of the employer's action.
In dismissing the Deputy Chief's case, the court determined that the Deputy Chief did not establish that his speech was constitutionally protected. One of the significant issues for the court was the plaintiff's position as Deputy Chief. The court noted that an employee who is considered a “policymaker” in the organization may be discharged “when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies.” The outcome may have been different had the Deputy Chief engaged in the political commentary while still a firefighter, and not as a Deputy Chief. But, the law clearly sides with a public employer’s right to demand a certain amount of loyalty and circumspection in an employee’s speech when that employee becomes “management” or is involved in the creation or effectuation of policy within the organization.

Free speech issues are still tricky and the rules can apply differently depending on the facts of the particular situation. Employers should always look at the position and duties of the employee making critical statements, where the statements were made, along with whether the statements are negatively affecting the organization. Employers are rightfully sensitive to negative statements on Facebook because of the possible widespread dissemination  of the remarks. Each case must be evaluated individually though to determine the lawful response. It is good practice to consult with labor and employment counsel before taking action against your public employee as a result of his or her negative statements about the organization or officials.

Original Post Authored by Margaret Kostopulos, Ancel Glink