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

Wednesday, August 15, 2018

Government Severance Pay Act Becomes Law in Illinois


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

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

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

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

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

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

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

Post Authored by Julie Tappendorf

Monday, August 13, 2018

Top 10 Posts of 2018 To-Date


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

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

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

President's Blocking of Twitter Users Found Unconstitutional

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

Bill Proposes Local Government Email Act

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

New OMA and FOIA Bills Introduced

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

Teacher Fired for Social Media Posts About Student

Police Officers' Emails on Private Devices Subject to FOIA

Alderman Texts and Emails on Private Devices Not Subject to FOIA

City Not Liable for Flooding on Residents' Property

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

New Law Allows Website Posting for Prevailing Wage Ordinances


Friday, August 10, 2018

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



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

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

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

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


Original Post Authored by Matt DiCianni, Ancel Glink

Thursday, August 9, 2018

School Security Agent Not Entitled to PSEBA or PEDA Benefits


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

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

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


Wednesday, August 8, 2018

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



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

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

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

Post authored by Adam Simon, Ancel Glink

Tuesday, August 7, 2018

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



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

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

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

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


Post Authored by Christy Michaelson, Ancel Glink

Monday, August 6, 2018

New Podcast: What's the Big Deal with Small Cells?



The increased demand for wireless services means that street lights, utility poles, buildings, and more are now home to small wireless facilities. Ancel Glink's telecommunications attorney Adam Simon stops by a regular meeting of our podcast, Quorum Forum, to discuss how municipalities can regulate these small cells. We also go "In the Zone" with Ancel Glink attorney Greg Jones for the latest in economic development from Ancel Glink's land use newsletter.

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

You can also subscribe to "In the Zone," Ancel Glink's land use newsletter at inthezone@ancelglink.com

Monday, July 30, 2018

Court Finds Requests for Electronic Records Are Not Unduly Burdensome




Those of you who regularly read the blog or attend our FOIA speeches are likely familiar with the case of Hites v. Waubonsee Community College. We previously reported on the appellate court’s 2016 decision in that case, in which it found that individual data points within an electronic database are public records subject to FOIA. The appellate court also remanded the case to the trial court to address the College's argument that complying with the following 7 FOIA requests qualified as "unduly burdensome": 

1) the zip codes of people taking the National Safety Council’s Defensive Driving Course in 2011, 
2) the zip codes of people taking GED classes in fall of 2011 at the Aurora campus, 
3) the zip codes of all people taking ESL classes in the fall of 2011 at the Aurora campus, 
4) the raw input for the ”city” field on the student registration forms for all students in the fall 2011 at the Aurora campus, 
5) the raw input for the “county code” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, 
6) the raw input for the “US citizen” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, and 
7) the raw input for the “Are you in the United States on a visa-nonresident Alien” field on the student registration forms for all students in the fall of 2011 at the Aurora campus.

Trial Court Ruling

Back at the trial court level, the College argued that compliance with these remaining 7 requests would be unduly burdensome because the College's database system is complex and the data did not reside in any single database or report. and because of the amount of staff time required to respond to all of these requests.

In considering the "unduly burdensome" argument, the court looked at the following three elements:

1) compliance with the request as stated must be unduly burdensome,
2) there is no way to narrow the request, and
3) the burden on the public body outweighs the public interest in the requested information. 

The trial court found that the 7 requests were unduly burdensome as testimony showed that a response to all requests would like take over 20 personnel days, which would impede College staff’s ability to perform their other duties.  Further, the trial court found that some of the requests would require searching databases that were not in the control of the College.  The trial court also found that the burden on the College outweighed the public interest because the requester only sought the demographic information to speculate about what businesses the students might frequent.

Appellate Court Ruling

Hites (the requester) appealed the case, and the appellate court reversed and remanded the case to the trial court, finding that the record did not support the trial court's ruling in favor of the College that response to the FOIA request would be an undue burden. Hites v. Waubonsee Community College, 2018 ILApp 2d 170617, July 20, 2018.

With regard to the first element - that compliance would be unduly burdensome - the appellate court found that the College’s alleged burden was improperly padded with time that staff would spend on other activities.  The appellate court determined that the record did not show that It would take weeks or even months to respond to the requests.   Further, the appellate court found that the record did not show that outside databases would need to be searched to obtain the requested information.  Rather, the information could all be retrieved from two databases which were under the control of the College. 

 As for the second element - that there is no way to narrow the request - the appellate court looked to Section 3(g) of FOIA, which requires that the public body extend the requester an opportunity to narrow the request.  The court found that the trial court erred as it did not make a necessary finding as to whether the 7 requests could be narrowed. 

For the third element - whether the public interest in the records outweighs the burden on the public body - the appellate court noted that while the trial court only identified one public interest - to learn student demographics in order to speculate about business, other public interests were contained in the record.  The appellate court noted that the requester sought the data to determine whether the College was fulfilling promises regarding the construction of a new campus, whether it was working in the City’s best interest, whether certain agreements between the College and the City needed to be revisited, and whether students were being sent to campuses outside Aurora.  The appellate court found all of these reasons to be legitimate public interests, which do outweigh the burden on the public body.  

This case is significant as it shows the high burden that must be met for a public body to claim records are unduly burdensome.

Post Authored by Erin Pell, Ancel Glink

Friday, July 27, 2018

Cook County Proposes 2 Referenda Questions Regarding Minimum Wage and Sick Leave


In 2016, the Cook County Board of Commissioners passed two ordinances regarding minimum wage and sick leave. Both ordinances took effect last summer, with the minimum wage increase being phased in over the next few years. Many Cook County municipalities (over 100) have chosen to "opt out" of the two ordinances by passing their own ordinances to that effect. 

This week, the Cook County Board of Commissioners took action to place two advisory referenda on these two topics on the November ballot directed at municipal voters. Although the referenda are advisory only, Cook County municipalities should be aware of these ballot questions as there may be questions from municipal officials and citizens as to what effect these questions might have if they are approved. In short, advisory referenda have no legal, binding effect.  

The ballot questions read as follows: 

(1) “Shall the minimum wage in your municipality match the $13 per hour Cook County minimum wage law for adults over the age of 18 by July 1, 2020, and be indexed to the consumer price index after that?”
 
 [ ] Yes
 [ ] No
 
(2) “Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?”
 
[ ] Yes
[ ] No

Wednesday, July 25, 2018

Court Dismisses Zoning Challenge as Moot


A property owner filed a lawsuit against a municipality challenging a city's amendment to its zoning ordinance to require a special use for residential uses on property zoned in the light commercial zoning district. The court dismissed the lawsuit because the owner failed to exhaust his administrative remedies by not applying for a special use permit. The owner then filed an application for a special use permit, but the city rejected it because it was defective. In 2017, the city rezoned his property, which rezoning contained the same residential zoning restrictions as the previous zoning code amendment.  

Subsequently, the owner filed a second lawsuit against the city claiming that the zoning amendment passed by the city in 2013 was invalid because he did not receive individual notice of the meeting of the city council where the 2013 amendment was adopted. The trial court dismissed the case, and the appellate court affirmed, both finding the owner's case moot because even if the 2013 amendment were held invalid, the 2017 rezoning decision would remain in effect with the same residential restrictions being challenged by the property owner.

Although the substance of the case is mostly procedural in nature, the appellate court's statements on the effect of a city's zoning approvals is interesting. The owner argues that he has a right to develop his property consistent with the zoning that existed when he bought the property. The court rejected that argument, finding that an owner has "no constitutionally protected interest" in the continuation of zoning. The other important issue is that the court acknowledges that the property owner should not be able to challenge a special use permit requirement without having gone through the special use permit process.


Post Authored by Julie Tappendorf

Monday, July 23, 2018

PAC Orders Release of Documents in Binding Opinion



The PAC recently issued its eighth binding opinion of 2018.  In PAC Opinion 18-008, the PAC found that the Cook County Health and Hospitals System (“CCHHS”) improperly denied a request for records as unduly burdensome, and further finding that the financial terms requested were not exempt under 7(1)(g). 

The requester had submitted a FOIA request to CCHHS requesting an Agreement showing certain payments and the per member per month capitation rate ("rates”).  CCHHS denied the request as an unduly burdensome repeated request, stating that the requester previously asked for the same document in 2015, at which time CCHHS provided the document to her with redactions. The requester had previously filed  a request for review with the PAC in 2015, contesting the redacting of the rates.  At that time, the PAC determined that CCHHS had improperly redacted the rates under 7(1)(g) of FOIA and found that CCHHS must disclose the rates to the requester.  CCHHS did not provide the requester with those rates after the PAC’s decision. 

The requester again sought review with the PAC regarding CCHHS’s denial of her 2018 request.  Upon review, the PAC found that CCHHS improperly denied the request as unduly burdensome under Section 3(g) of FOIA.  The PAC found that CCHHS could only deny the 2018 request as unduly burdensome if it had properly denied the rates in response to the 2015 request.  Since CCHHS did not comply with the PAC’s direction to release the rates in 2015, the PAC found that it had not property denied the first request.  The PAC noted that a request is only considered an unduly burdensome repeated request if the public body previously provided the records or previously properly denied the prior request for the same records.

The PAC also reviewed whether the 7(1)(g) exemption would be applicable.  Section 7(1)(g) of FOIA exempts “trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive hard to the person or business, and only insofar as the claim directly applies to the records requested.”  CCHHS argued that the rates are exempt under 7(1)(g) as the rates are not an obligation or expenditure of public funds, and disclosure would cause financial and competitive harm in future negotiations.  The PAC determined that CCHHS improperly redacted the rates under 7(1)(g), finding that the rates directly relate to the use of public funds.  The PAC found that CCHHS failed to demonstrate that disclosure of the rates would cause competitive harm.   The PAC clarified: “Unlike an instance in which a public body obtains financial information from a business in a regulatory or investigatory capacity, the redacted PMPM capitation rate determines the extent of CCHHS’s expenditure of public funds.” The PAC ordered CCHHS to provide the requester with a copy of the agreement showing the rates. 

This opinion confirms that in order to deny a "repeated" request, a public body must have either previously provided the document in full, or provided a proper denial.  Further, the PAC again made it clear that 7(1)(g) will only be applied where competitive harm is actually shown, and the use of public funds is public information.

Post Authored by Erin Pell, Ancel Glink

Friday, July 20, 2018

Quorum Forum Podcast - What to Do When Your Gov Gets Sued


A new special meeting episode of our Quorum Forum podcast has been released!

What to Do When Your Gov Gets Sued

People sue the government all the time, but (hopefully) your local government doesn’t receive a lawsuit every day. Ancel Glink litigator Aaron Bitterman joins us for a special meeting to discuss some of the first things your local government should do when a lawsuit comes in the door. 

You can listen on Quorum Forum's website here.

Do you have questions for public comment, or ideas to include on the agenda for our next meeting? Email us at podcast@ancelglink.com!

Wednesday, July 18, 2018

City in Violation of FOIA for Redacting PINs


In its 9th binding opinion for 2018, the PAC found a public body in violation of FOIA for redacting the Parcel Identification Numbers (PINs) from records released in response to the FOIA request. PAC Op. 18-009.

A FOIA request was filed with a Chicago agency requesting records relating to variances granted under the City's shared housing ordinance. The request specifically asked that the records include the PINs for each parcel. The City responded to the FOIA by providing the requested records, but redacted the PINs, citing the "private information" exception under 7(1)(b) of FOIA. 

The requester appealed to the PAC, and the PAC ruled against the public body, rejecting its argument that the PINs for individual parcels are "unique identifiers" under 7(1)(b) of FOIA. The PAC noted that the phrase "unique identifier" is intended to apply to information about people (such as a social security number), and not information about property. The PAC also noted that PINs are publicly available information.  The PAC also rejected the City's argument that release of the PINs would constitute an unwarranted invasion of personal privacy under 7(1)(c) of FOIA. The PAC determined that the interest in release of information about homes that are used as vacation rentals in Chicago outweighed any interest in the property owners in keeping that information private.

Post authored by Julie Tappendorf

Monday, July 16, 2018

Zoning Lawsuit Bill Signed By Governor


We previously reported on HB 4711, which had passed both houses last month. That bill proposed to amend the municipal, county, and township zoning statutes to make it clear that the Adjoining Landowner Act does not provide a cause of action to individuals to sue the government to challenge zoning decisions unless the government is the owner of the property subject of the zoning challenge. You can read our previous post here

We wanted to update you to report that the Governor has signed this legislation into law as PA 100-595. The relevant language that was added to the municipal zoning statute 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.
There are a number of cases that had already held that the Adjoining Landowner Act does not provide a cause of action against the government (except as property owner), and this new law confirms that.

The legislation is effective June 29, 2018.

Post Authored by Julie Tappendorf


Friday, July 13, 2018

Upcoming Webcast: Zoning Hearings



Webcast— Rules of the Game: A Framework for Fair & Effective Zoning Hearings

Don't miss this upcoming webcast hosted by the Planning and Law Division of the American Planning Association titled Rules of the Game: A Framework for Fair & Effective Zoning Hearings on Thursday, July 26, 2018 from 1:00 to 2:30 p.m. EDT.  Register here



This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings.  Speakers include Ancel Glink attorneys David Silverman and Kurt Asprooth.

Details are as follows:

July 26, 2018

1:00 – 2:30 PM Eastern (noon - 1:30 PM Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

Wednesday, July 11, 2018

Assessor Ordered to Release Assessment Records to Tribune


The Tribune filed a FOIA request with the Cook County Assessor's Office asking for records relating to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. Specifically, the Tribune asked the assessor to produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports. The assessor’s office denied the FOIA request, citing the exemption under 7(1)(f) of FOIA. The assessor's office argued that the records were subject to the "deliberative process" exemption under FOIA. 

The trial court ruled in favor of the Tribune, finding that the requested documents “do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor’s Office]” such that the preliminary records exemption would apply. The trial court further found that none of the documents revealed “any debate” or “deliberation,” but instead found that the documents “contain factual information and the results of the [Assessor’s Office’s] valuation which are not covered under the deliberative privilege.”

The assessor appealed, and the appellate court affirmed its ruling in Tribune v. Cook County Assessor's Office, 2018 IL App (1st) 170455. The appellate court went through the analysis of the "deliberative process" exemption. First, the court determined that the records were final, and not preliminary. Next, the court held that the records are not ones in which opinions are expressed or policies are actions are formulated - instead, the court found that the requested records were factual in nature, and consist of the results of the assessment process. The court stated the standard for applying the "deliberative process" exception as follows:
In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated....The policy reason for the deliberative process exemption is to encourage candid debates within agencies. The government is entitled to withhold documents that reflect the agency’s give-and-take leading up to its final decisions.
The court further stated that "[p]urely factual material must be disclosed under FOIA once a final decision has been made, unless the factual material is inextricably intertwined with the predecisional and deliberative discussions." Because the court found that the information requested by the Tribune is critical for the public to understand how they are being taxed, the court ordered the assessor to release the requested records to the Tribune. The court also upheld the trial court's award of the Tribune's attorneys' fees.

Tuesday, July 10, 2018

Public Body Violates FOIA in Not Responding to FOIA Requests


In its 6th binding opinion of 2018, the PAC found a public body in violation for failing to respond to a FOIA request. PAC Op. 18-006. The requester had filed three FOIA requests for various records including minutes and the recording of a personnel committee meeting, copies of the personnel handbook and policies for fire department personnel, and minutes of the monthly fire department meetings. According to the requester, the village failed to respond to any of these requests, and he filed a request for review with the PAC. The PAC found the public body in violation for failing to respond to the FOIA requests and for not cooperating with the PAC in the request for review process.

Monday, July 9, 2018

New Quorum Forum Podcast Released - Defending Police Actions



Ancel Glink released its fifth episode of its Quorum Forum podcast last week. In Episode 5, Ancel Glink litigation attorneys Tom DiCianni and Christy Michaelson discuss the challenges local governments face when defending allegations of police misconduct. Christy provides updates on police legislation, and Tom analyzes how technology and media attention affect the defense of high-profile police cases.

You can listen to Episode 5 (and all other episodes) here.

Monday, July 2, 2018

Public Body Violates FOIA In Denying "Repeated Request" For Same Records


It's been more than 3 months since the Illinois Attorney General PAC office issued a binding opinion, but the wait is over. In PAC Op. 18-007, the PAC found a public body in violation of FOIA for improperly denying a second FOIA request for the same records that had been requested in a previous FOIA request.

A requester filed a FOIA request with the Illinois Department of Corrections asking for records concerning the Illinois Impact Incarceration Program. IDOC provided some records, and provided a link to other records available on IDOC's website. Three months later, the requester filed a complaint with the PAC office. The PAC notified the requester that the complaint was too late (it wasn't filed within 60 days after the denial) but suggested to the requester that she file a second FOIA request, thus triggering a new 60 day appeal period.

Based on the PAC's advice, the requester filed a second request with IDOC asking for the same records. IDOC responded that section 3(g) does not require a public body to respond to repeated requests from the same person for the same records, and that it had conducted a search for the requested records and had provided the records it found through its search.

The PAC examined the language of 3(g) which allows a public body to deny subsequent requests for the same records submitted by the same person. The PAC determined that because IDOC did not provide sufficient support that it performed a thorough search and provided all relevant records in response to the first request, it could not deny the second request filed by the same person for the same records. 

It is unclear from reading this opinion how or in what manner IDOC failed to comply with FOIA. IDOC responded to the first request for records by either providing the responsive records or referring the requester to the website link where records could be found. When the second request was filed by the same person for the same records, IDOC denied it under 3(g) on the basis that IDOC had already responded to the same request and provided records previously. It appears that the PAC expects IDOC (and presumably all public bodies) to "prove a negative" - i.e., somehow establish to the PAC's satisfaction that the public body absolutely, positively, and without any doubt, has no other records responsive to the request beyond those that had been previously provided. I don't know how a public body can meet that standard, or why IDOC's initial response and provision of records to the requester wasn't enough. As for the PAC's advice to keep filing requests for the same information,  causing public bodies to repeatedly respond to requests for the same records? That's what section 3(g) was intended to avoid.

Post Authored by Julie Tappendorf

Thursday, June 28, 2018

Supreme Court Issues Ruling in "Fair Share" Union Fee Challenge


The U.S. Supreme Court issued its long anticipated ruling in the Janus v. AFSCME case involving a challenge to the "fair share" requirement that requires payment of fees by employees who are not members of the union. The Supreme Court ruled in favor of the plaintiff, finding the state of Illinois' requirement that non-consenting public-sector employees pay the fair share fee violates the employees' First Amendment rights. 

To read more about this ruling and find out how it affects local government employers in Illinois, check out our post on Ancel Glink's employment law blog The Workplace Report with Ancel Glink, which you can find here.  

You can read the Court's opinion here.

Tuesday, June 26, 2018

Take it to the Bank! New Podcast Released


In a new episode of Quorom Forum (Ancel Glink's podcast), Ancel Glink’s Brent Denzin addresses blighted, vacant and abandoned properties. Brent discusses how land banks create a solution for community blight.  You can listen to this podcast episode here

A land bank is an intergovernmental entity that’s tasked with acquiring, managing, and disposing of property. Land banks exist in different forms in every state. Illinois does not have a state statute that enables land banks; they currently exist as a home rule unit of government collaborating with non-home rule units. This is especially helpful, because home rule units can use their powers on behalf of the land bank, and thus the entity is not restrained by non-home rule powers.

Land banks utilize many areas of expertise in order to legally and efficiently acquire these properties, including economic development, real estate acquisition, and public works. These areas of expertise are consolidated into one land bank that is able to work on behalf of a wide area of municipalities or counties. The ability to pool resources among multiple local governmental entities is one of the main benefits of land banks.

Once the property is in the land bank, it shifts to asset managers. Asset managers that work for the land bank are constantly driving around, assessing the properties and looking at conditions. The asset managers try to figure out how to secure the properties, maintain the lawns, etc. At the same time, the land bank has inside real estate staff or outside realtors looking to sell the property who are going through the same process as someone would with any other property with clean title.

Even if a land bank does not include a county, the land bank will have to work cooperatively with their county because counties have a tax trustee role and can go into court and file tax petitions for tax delinquent properties. Usually the back taxes on a property is what causes it to become blighted and deteriorated, so this power to acquire title is important for a land bank. Overall, land banks are valuable tools that tackle community deterioration and blight and can be formed any time under the Illinois Intergovernmental Cooperation Act. 

Learn more about landbanks or listen to our other Podcast episodes by visiting our Quorum Forum website at http://quorumforum.ancelglink.com

Monday, June 25, 2018

South Dakota v. Wayfair: Not the Final Word on Internet Sales Tax


UPDATED 6/27/18 (see bold)

On June 21, 2018, the United States Supreme Court issued a ruling in the case South Dakota v. Wayfair that has been hailed as a landmark decision regarding the ability for states to tax interstate transactions.  While it is a very important decision that overturned decades old precedent, there are three reasons why it is not the final word on the authority for states to tax the sale of goods over the Internet.

It is an Incomplete Result

First, the case is a narrow decision that only addresses part of the analysis required to approve the taxation of interstate sales.  The basic legal question is whether a state’s assessment of taxes on out-of-state transactions substantially burdens interstate commerce.  Under the U.S. Constitution, only the federal government has the power to regulate interstate commerce.  As a result, the Constitution implicitly prohibits state laws which either discriminate against or substantially burden interstate commerce.  For state tax laws to be approved under these guidelines, the U.S. Supreme Court has said the tax must:

(1) apply to an activity with a substantial nexus with the taxing State,
(2) be fairly apportioned,
(3) not discriminate against interstate commerce, and
(4) be fairly related to the services the State provides.

The reason the Wayfair case is so important is because for 50 years no state tax that applied to out-of-state sales could get past the first test.  Previously, to meet that first test (the company has a substantial nexus to the state levying the tax), it had to have a physical presence in that state.  In Wayfair, a 5-4 majority of the Court decided that a physical presence is no longer required to satisfy the substantial nexus test.  That is the important but limited decision made by the Court.

The Court did not reach a decision on the final three factors because the underlying South Dakota courts did not have a chance yet to evaluate those questions. So, the case goes back to the lower courts to determine if the plan satisfies the remaining tests so that South Dakota actually can levy sales tax against out-of-state sales.

Nevertheless, the Court made some important observations.  The majority decision expressed concern for how interstate taxation could burden startups and small businesses and questions whether such companies could have a substantial nexus to the state if they do not engage in a significant amount of commerce in the state.  The Court favorably commented on the South Dakota tax plan under review in this case – that plan restricts the application of sales tax to out-of-state companies that have at least $100,000 in sales per year or more than 200 separate transactions per year with state residents.  The Court also indicated that the ease with which companies could comply with a state’s taxing scheme would weigh on whether it created a substantial burden on interstate commerce.  South Dakota and more than twenty other states have adopted the Streamlined Sales and Use Tax Agreement, which is designed to make it much easier for out-of-state retailers to comply with an Internet tax program.

Illinois has no Internet Tax Law

Second, Wayfair only addresses a South Dakota state law.  Even if the case had gone further and approved the tax plan implemented by South Dakota, Illinois does not have a parallel tax law.  Before Illinois can levy taxes against Internet sales it would have to amend its current sales tax laws.  As we know, the General Assembly has a difficult time reaching an agreement on such important issues.  In addition, Illinois is not one of the states to adopt the Streamlined Sales and Use Tax Agreement.  So, before Illinois and local governments could benefit from the holding in Wayfair, the General Assembly would have to take action in a way which complies with the Commerce Clause.


The Fiscal Year 2019 Budget which was adopted as Public Act 100-0587 does make amendments to the Use Tax Act and Service Use Tax Act.  The amendments are designed to mimic the tax regulations on out-of-state purchases adopted in South Dakota.  Currently, the amendments only authorize the collection of the State Use Tax and not any local use tax.  The amendments are not designed to become effective until October 1, 2018.  Nonetheless, the Illinois sales tax paradigm remains different from South Dakota’s because Illinois is not a party to the Streamlined Sales and Use Tax Agreement.

The Federal Government Can Preempt the Field

Third, as mentioned above, the federal government has exclusive authority to regulate interstate commerce.  As the Court states, “when Congress exercises its power to regulate commerce by enacting legislation, the legislation controls.”  So, the federal government could preempt a patchwork of different state Internet tax laws by adopting comprehensive legislation to govern the field.  To-date, Congress has been unable to reach an agreement on this issue.  Various versions of the Main Street Fairness Act, designed to place local businesses on a level playing field with Internet businesses, have been debated for several years with no action – the very motivation for South Dakota to adopt its plan in the first place.  Some people have speculated that the Wayfair decision will jump start the legislative process and result in a nationwide sales tax program.  Only time will tell.

Post authored by Adam Simon, Ancel Glink

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