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Tuesday, November 12, 2019

Local Government Law Institute on December 4th

Calling all local government attorneys!  In less than a month, IICLE® will be hosting the 7th Annual Local Government Law Institute on Wednesday, December 4th at the One North Wacker Conference Center (UBS Tower) in Chicago. A Springfield Simulcast and Live Webcast will also be offered.

Learn about hot topics in local government law, including legalized cannabis, risk assessment, #me too, cyber-security, eminent domain, and housing. The program also includes a panel discussion featuring the Public Access Counselor's staff. The faculty will discuss legal issues relating to government use of social media. Ancel Glink's very own Julie Tappendorf and Kurt Asprooth will be speaking at the program. 

This program will offer 7 hours of MCLE credit, including 2 hours of Professional Responsibility credit. Included with your tuition, you can earn an additional hour of credit by watching IICLE's bonus e-learn session about affirmative litigation. 

View the program e-brochure here: or register here or by calling 1-800-252-8062.  

I hope to see you on December 4th!

Monday, November 11, 2019

FAQ on Employment-Related Issues with Adult Use of Cannabis

We have been getting a number of questions from our local government clients about employment-related issues with the upcoming legalization of cannabis in Illinois. The Workplace Report with Ancel Glink (our sister blog on labor and employment issues) recently posted a very helpful "FAQ"  on this very issue, answering a number of these questions. You can read the blog post on that blog here or below. Don't forget to visit The Workplace Report with Ancel Glink and subscribe!

The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1, 2020:

Can we still have a zero-tolerance employee drug policy?

Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work.

Should we still test for cannabis during post-employment drug and alcohol screens?

Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their system of evidence of cannabis use. This is long after the effects of cannabis have dissipated. Unlike alcohol, which people generally metabolize quickly, positive tests for cannabis use are highly unreliable in determining whether an employee is under the influence of cannabis while at work. While nothing prohibits an employer from testing for cannabis use as part of a post-employment drug screen, disciplining an employee solely on the basis of a positive test result for cannabis likely violates the Right to Privacy in the Workplace Act which prohibits any adverse employment action against an employee for their off-duty legal activities. Just as an employer cannot discipline an employee for having an alcoholic beverage off duty or smoking cigarettes or any other behavior that the employer may prohibit on duty, an employee who uses cannabis recreationally and consistent with the statute while off duty cannot be disciplined for such use.

A positive test for cannabis can be used as additional evidence of being under the influence while at work only as secondary or confirmatory evidence when the employer has established reasonable suspicion of such use. If an employer has reason to suspect that an employee is impaired by cannabis while working, management should clearly document all of the observed objective factors that support this suspicion. The law provides some guidance with regard to reasonable suspicion of cannabis impairment. Symptoms of impairment may include speech issues, problems with physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in the operation of machinery or equipment, an apparent disregard for the employee’s own safety or that of other employees, involvement in an accident or damage to the employer’s property, disruption of the workplace or negligent conduct that results in an injury to another employee. Unfortunately, many of these statutory factors may indicate other issues, such as a stroke or other physical impairment. Well documented symptoms of impairment by trained supervisors and managers are currently the strongest “test” for being under the influence of cannabis, which can be strengthened by a positive test result for the same.

So, employers can never use a positive test result for cannabis as the basis for discipline against employees?

No. Employees who must possess a CDL, certain law enforcement and employees who operate under federal grants can still be disciplined for cannabis use because cannabis is still illegal under federal law. Additionally, in Illinois, even after January 1, 2020, recreational cannabis use is still illegal for individuals under the age of 21. Employees under that age may still be disciplined solely on the basis of a positive cannabis test result.

Can we still include cannabis among the drugs tested in random drug tests?

Employers should no longer test for cannabis use as part of random drug testing except for CDL required positions, certain law enforcement personnel and those under 21 years of age, with the caveat for lawful medical cannabis use. Additionally, pre-employment drug screens should no longer include tests for cannabis as it will be a “lawful product” after January 1st.

How does the legalization of recreational cannabis affect our ability or need to regulate the use of medical cannabis?

The use of cannabis for lawful medical purposes has been the exception from discipline for qualifying individuals while cannabis is still an illegal drug for recreational use. After January 1st, employers will no longer need a medical cannabis caveat in their policies except for employees who are still prohibited from its use under federal law.

Do employers need to update their drug and alcohol policies?

Possibly. Since policies vary, it is important to review and when necessary, revise workplace drug and alcohol policies. Equally as important, is the need to revise employment practices in the workplace. Training or retraining supervisors and managers on reasonable suspicion indicators and updating forms that document such is essential. The strength of an employer’s disciplinary decision rests on how knowledgeable and thorough the process of determining reasonable suspicion is. Eliminating cannabis testing in pre-employment and random testing, except for DOT, some law enforcement and federally controlled positions will prevent allegations of violation of the Right to Privacy in the Workplace Act for adverse actions resulting from use of a lawful product while off duty.

Original post authored by Margaret Kostopulos, Ancel Glink

Thursday, November 7, 2019

Quorum Forum Podcast: Closed Session for Litigation

A new Quorum Forum Podcast Episode has just been released! 

In Episode 31: Closed Session for Litigation, Ancel Glink attorneys meet at the dog park to preview the 2019 Illinois Association of Park Districts Legal Symposium and significant court decisions affecting your district’s day-to-day operations. Later, we adjourn to closed session to talk about what  all units of local government should know about the Open Meetings Act exception for discussing litigation. 

What questions do you have about discussing litigation in closed session? Email us at podcast@ancelglink.com!

Wednesday, November 6, 2019

U.S. Supreme Court Declines to Hear Food Truck Case

We previously reported on a case that made its way to the Illinois Supreme Court involving a challenge to the City of Chicago's food truck ordinance. As we reported in the past, the operator of a cupcake food truck had challenged the ordinance on various grounds, including that the ordinance treated food trucks less favorably than traditional restaurants by prohibiting food trucks from locating within 200 feet of a brick and mortar restaurant with limited exceptions. The trial and appellate courts had rejected the food truck's claims, and the Illinois Supreme Court also upheld the City's ordinance. 

The food truck operator then filed a "writ of certiorari" with the U.S. Supreme Court asking that Court to take on the case. Just this week, the U.S. Supreme Court affirmatively declined to take the case, meaning that the Illinois Supreme Court's ruling in favor of the City of Chicago and upholding the City's ordinance will stand.

Tuesday, November 5, 2019

Sharing Meme Creates Controversy at Work

In yet another installment in a never-ending saga of "be careful what you post on social media," a 23-year old employee of a stone company claims he was fired after posting the following meme on his Facebook page:

As you can see from one of the comments and then the employee's response, the employee seemed surprised that the posting might create an issue with his job as in his view, he simply "shared a funny meme" while off-duty. But, as we have seen through other examples of similar social media postings, not all personal social media activities are protected, and the consequences of one "funny meme" can be pretty significant. 

The employer responded to the initial news story about this incident to contradict the employee's claim that he was fired for his social media activities. According to the employer, the employee was not fired for posting the meme, and in fact worked for two days after the posting before walking off the job. Now that the employee has retained an attorney, we may have to wait for a court decision to see which story carries more weight.   

Monday, November 4, 2019

PAC Issues 2 Binding FOIA Opinions

Last week, the Public Access Counselor of the Attorney General's office issued two new binding FOIA opinions. 

In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city had released other records relating to the incident, but withheld the body camera recordings, citing the Law Enforcement Officer-Worn Body Camera Act and the FOIA exemptions that protect records when there is an open criminal investigation. The county states attorney also supported the city's withholding of the recordings.

The PAC reviewed the city's denial and cited exemptions and rejected its argument that the recordings were exempt. Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act, and ordered release of the recording.

In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review. 

Friday, November 1, 2019

Parking Excise Tax Update

You may recall that we reported on a new excise tax enacted by the Illinois General Assembly that would impose a state tax on the use of parking facilities. As we noted in our post, the Act applies to any "person" who operates a parking area or parking garage as defined by the Act. The definition of person does not reference municipalities or other units of local government, so it seemed that the tax would  not apply to municipal parking garages and lots. As we noted in our previous report, we reached out to various state agencies and organizations to get more clarification on this interpretation. Unfortunately, we received inconsistent messaging on our interpretation. 

We wanted to update you, however, because we recently learned that the Illinois Municipal League is urging the General Assembly to amend the Act prior to it taking effect in January to expressly exempt municipal-owned parking facilities. Although we have not yet seen draft legislation, we hope this does, in fact, move forward soon. We are also waiting to see the rules that the Illinois Department of Revenue have been working on to implement this new tax.

As noted before, we will keep you updated as we learn more about this tax and any changes.

Thursday, October 31, 2019

Illinois Legislature to Consider Downstate Police & Fire Pension Fund Consolidation

On October 29, 2019, legislation was filed (Senate Bill 616, Senate Amd. #1) to implement the consolidation of the Downstate Police and Fire Pension Funds created by Articles 3 and 4 of the Pension Code. While this is only the initial draft of the legislation, the most meaningful takeaways from the bill are summarized below. In reviewing the changes, it is important to recognize that this bill is designed only to convert the local pension investment model into one more similar to IMRF.  As a result, there are certain compromises that make this only a half-step towards true pension reform.

1.  Local pension boards are not dissolved.  The bill does not eliminate the role of local pension boards in reviewing applications for pension benefits. The bill only takes away the investment authority from local pension boards and delegates it to one statewide pension board each for police and fire. 

2.  Consolidation will not occur overnight. The bill introduces a transition period during which the statewide pension boards will audit and verify each participating funds assets and take over custody and investment authority.  The transition period is intended to last no longer than 30 months from the effective date of the legislation.  During the transition period, municipalities may continue to establish actuarial assumptions which are not inconsistent with the Pension Code.  Likewise, the funding calculations based on those assumptions remain in local control.

3.  Municipalities will lose the ability to establish actuarial assumptions and independently set the actuarially required contribution.  Once the transition period concludes and the statewide board has custody over all pension assets, actuarial statements shall be prepared by or under the supervision of a qualified actuary retained by the statewide fund, and if a change occurs in an actuarial or investment assumption that increases or decreases the actuarially required contribution for the pension fund, that change shall be implemented in equal annual amounts over the 3-year period beginning in the fiscal year of the pension fund in which such change first occurs. The actuarially required contribution established by the statewide fund shall determine the annual required employer contribution, notwithstanding any formula or other language in Article 3 or Article 4 of the Pension Code to the contrary.  This change will result in mandatory pension contributions in the same manner IMRF creates mandatory employer contributions for the benefit of non-sworn employees. 

4.  Each municipality will have a separate pension account.  Some well-funded pension boards have expressed concern that the consolidation of pension funds for investment purposes will dilute their strong position. Fortunately, the bill addresses this problem directly. Each statewide board is directed to, “separately calculate account balances for each participating pension fund. The operations and financial condition of each participating pension fund account shall not affect the account balance of any other participating pension fund. Further, investment returns earned by the Fund shall be allocated and distributed pro rata among each participating pension fund account in accordance with the value of the pension fund assets attributable to each fund.” Based on this language, a fund's unfunded liabilities should not change simply because of the consolidation of investment authority. 

5.  Tier 2 benefits are adjusted.  The determination of final average salary and the calculation of survivor benefits for police and fire employees in Tier 2 (hired after 1/1/11) will be adjusted to address concerns that the current model may fail to qualify for an exemption from social security taxes.

Post by Adam Simon, Ancel Glink

Wednesday, October 23, 2019

PAC Finds Private Company Reports Not Proprietary Under FOIA

In the recent PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. 

The FOIA request came in response to a city ordinance requiring all manganese-bearing materials operators provide the city with quarterly reports concerning the amount of material being handled at their facilities. The city refused to hand over the manganese reports of the private entity, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information.

The PAC rejected the city’s argument that the disclosure of the manganese reports was proprietary and confidential, stating that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

Post Authored by Rain Montero & Julie Tappendorf

Thursday, October 17, 2019

Federal Court Upholds On-Site Drug Use at Safehouse

In a decision that could be of interest to municipalities seeking to combat the growing drug epidemic, a federal court in Pennsylvania recently ruled that safehouses do not violate the Controlled Substances Act when they provide facilities where drugs are used under monitored, sterile conditions. U.S. v. Safehouse.

Safehouse, a nonprofit directed at fighting drug addiction and overdose, sought to open an “Overdose Prevention Site” to offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. Specifically, the Safehouse facility plans to offer medication-assisted treatment, medical care, referrals to a variety of other services, and the use of medically supervised consumption and observation rooms. Drug users who choose to use the medically supervised consumption room will have access to sterilized consumption equipment and fentanyl test strips. Safehouse staff members  supervise the participants’ consumption and are ready to intervene with reversal agents to prevent fatal overdose. Safehouse staff does not, however, handle or provide any of the drugs to the participants.

After Safehouse announced its plans, the federal government filed a lawsuit claiming that the on-site consumption of illegal drugs at Safehouse’s facility violated the Controlled Substances Act, which prohibits any property owner from maintaining a place that facilitates the use of a controlled substance. On October 2, 2019, a federal judge ruled in favor of Safehouse and rejected the government’s contentions. In that ruling, the judge stated that the “the ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it.” The judge reasoned that the stated purpose for Safehouse’s facility was to administer medical care and encourage drug treatment by connecting drug users with social services, and that none of these purposes are consistent with a criminal intent to facilitate drug use.

Post Authored by Rain Montero & Julie Tappendorf

Tuesday, October 15, 2019

Court Addresses Political Retaliation Claims in Connection With Sheriff's Election

In Briggs v. Potter County, a federal court of appeals addressed a political retaliation claim involving correctional officers at a county jail in Pennsylvania after a contentious primary election that involved their boss, the chief deputy sheriff.

Hunt and Briggs—both correctional officers at the jail—ran against Drake, the incumbent Chief Deputy Sheriff. Drake had recently retired from the Pennsylvania State Police and was appointed as Chief Deputy Sheriff, which was how the last three sheriffs were elected. As the primary campaign progressed, Hunt and Briggs were publicly outspoken about this method of electing sheriffs. Hunt went a step further and filed complaints against Drake with the District Attorney, the Pennsylvania Attorney General, and the Potter County Commissioners for engaging in political activity while on the job. Ultimately, Drake won the primary and general elections.

Before Drake took office, but after he won, Briggs received several reprimands, including sleeping during a shift. Eight days after Drake took office, Briggs was terminated. Hunt, the union steward, grieved for Briggs. Hunt was then fired after requesting video footage of other officers sleeping on the job. 

Briggs and Hunt filed suit against Drake and the County. They argued that their First Amendment rights to speech and association regarding political activities were violated. Hunt also claimed whistleblower protections under Pennsylvania law. The district court did not find a viable retaliation claim because of the length of time between the primary election and the firing of both Hunt and Briggs. Further, the court found no whistleblower protection because the correctional officers’ speech did not relate to a matter of public concern.

On appeal, the 3rd Circuit Court of Appeals disagreed with the court’s ruling on the retaliation claims. The appeals court found that Briggs was fired a mere eight days after Drake became sheriff and that Hunt was unlawfully retaliated against for his union activities after grieving Briggs’ termination. The appeals court also found whistleblower protections for Hunt because he spoke on matters of public concern when he filed complaints against Drake, including bringing claims of alleged corruption within the sheriff’s department and campaign violations under county, state, and federal law.

Although the court allowed the claims against Drake and members of his staff to move forward, the court dismissed all claims brought against the County because the officers failed to show a County policy or custom that caused “the specific deprivation of constitutional rights at issue” of the two officers.

Post Authored by Mike Halpin & Julie Tappendorf

Monday, October 14, 2019

Quorum Forum Podcast: Q&A on Recreational Marijuana

Recreational marijuana is coming to Illinois on January 1, 2020, and local governments have a lot of questions about implementation of the new law and how it will impact communities. At this year's Illinois-APA conference in Evanston, Ancel Glink attorneys participated in a Q&A with Illinois planners about recreational marijuana. That Q&A is now available as a "special meeting" on Quorum Forum Podcast Episode 30, which you can access here.

Do you have questions about recreational cannabis? Email us at podcast@ancelglink.com.

Friday, October 11, 2019

No Federal Due Process Liability for Accident in City Swimming Pond

The 7th Circuit Court of Appeals recently dismissed a case against a Wisconsin City involving an accident in a public swimming pond. Estate of Swannie Her v. City of West Bend (7th Cir. 9/6/19)

The City of West Bend, Wisconsin owns and operates a public park that includes a man-made swimming pond. The pond is divided into 3 zones, including a children's play area, a diving area, and a general swimming area. Six year old Swannie Her was at the park with her family when she left the children's play area of the pond to enter the diving area. She was found unresponsive at the bottom of the pond, and later died. Shortly thereafter, her family sued the City in federal court, claiming among other things that the City violated due process when it "created the danger" in operating a man-made swimming pond. The 7th Circuit rejected those claims, finding that the court would not impose a federal due process duty on the City for operating a swimming pond. 

Thursday, October 10, 2019

Ninth Circuit Upholds City's Short Term Rental Ordinance

Last Thursday, the 9th Circuit Court of Appeals dismissed a class action suit brought against the City of Santa Monica that challenged the City’s short-term rental ordinance on the basis of the dormant Commerce Clause. Rosenblatt v. City of Santa Monica.

The City’s ordinance prohibits property rentals of 30 days or less but has an exception for rentals where a primary resident remains on the property. A resident and homeowner in Santa Monica who rents out her house on Airbnb filed a lawsuit against the City claiming that the ordinance directly and indirectly regulated and burdened interstate commerce in violation of the dormant Commerce Clause. She also argued that the real purpose for the ordinance was to increase demand for the City’s luxury hotels that pay a 14% hotel tax to the City after the City experienced sharp declines in hotel tax revenues.

In upholding the dismissal of the case, the Court found that the complaint failed to allege a Commerce Clause violation because the ordinance does not favor in-state over out-of-state interests. The Court noted that the ordinance applies equally to persons nationwide and to Santa Monica residents who rent a home from another resident. Moreover, the Court also found that the home-sharing exception had no obvious advantage for Santa Monica residents over out-of-state homeowners. At most, the Court found that the ordinance resulted in “less accessible, available, and affordable” travel lodging in Santa Monica. However, this was not enough to meet the high burden of a dormant Commerce Clause claim, and there was a strong enough governmental interest in “preserving the City’s available housing stock and the character and charm which result, in part, from cultural, ethnic, and economic diversity of its resident population.”

Post Authored by Rain Montero & Julie Tappendorf

Wednesday, October 9, 2019

Protest Policy at Public Arena Found to Violate First Amendment

An interesting First Amendment case was recently decided by the 3rd Circuit Court of Appeals regarding the constitutionality of a "protest policy" at a publicly-owned arena. Pomicter v. Luzerne County Convention Center Authority

The Luzerne County Convention Center Authority owns the Mohegan Sun Arena, a large event space in Pennsylvania. The publicly-owned arena hosts athletic and other entertainment events. The arena's "protest policy" allows people to express their views, subject to several limitations. These include (1) requiring protesters to stand in designated areas on the concourse, (2) prohibiting protesters from using profanity or vulgarity, and (3) prohibiting any artificial voice amplification. 

An animal rights activist and organization protesting a circus event sued the Authority contenting that the protest policy violated the First Amendment. The district court agreed, finding all three challenged restrictions in the protest policy in violation of the First Amendment. 

The Authority appealed to the 3rd Circuit, which upheld the decision in part and reversed it in part.  First, the 3rd Circuit held that the policy's designated area restrictions were reasonable, as they were intended to maintain orderly and safe movement of patrons into and out of the arena. However, the 3rd Circuit agreed with the district court that the profanity ban was unreasonable and violated the First Amendment, finding that the profanity ban only applied to protesters and was not applicable to patrons attending the sporting and other events at the arena.  Similarly, the 3rd Circuit struck down the amplification ban, finding that the Authority did not provide any reasonable justification for the ban.

Tuesday, October 8, 2019

Court Upholds Real Estate Transfer Tax on Transfers to/From Freddie Mac/Fannie Mae

The City of Chicago, like many other Illinois home rule municipalities, imposes a real estate transfer tax on the transfer of real property in the City. A group of residents recently challenged the City's imposition of that tax on transfers to and from Freddie Mac and Fannie Mae, arguing that the tax was preempted by federal law that expressly exempts governmental entities from state and local taxation. The City defended its tax, arguing that these organizations were not "governmental bodies" so they were not exempt from taxation. In a recent ruling, the Appellate Court agreed, upholding the circuit court's dismissal of the lawsuit. Trilisky v. City of Chicago.

Monday, October 7, 2019

Court Upholds City's Amusement Tax on Video Streaming Services

The City of Chicago has enacted a 9% "amusement tax" which it imposes on a wide variety of "amusements" in the City of Chicago. In 2015, the City issued Ruling 5, which expanded the scope of the amusement tax to include amusements that are delivered electronically to patrons in the City, which include the privilege of watching electronically delivered television shows, movies, or videos; the privilege of listening to electronically delivered music; and the privilege of participating in games, online or otherwise. 

A group of Chicago residents challenged the constitutionality of the amusement tax as it applied to video streaming services such as Netflix, Hulu, and similar services. Specifically, the residents claimed that the tax was invalid because:

(1) streaming services are outside the scope of the City’s amusement tax ordinance; 
(2) the City taxes streaming services differently than it taxes equivalent in-person amusements in violation of the Illinois Constitution’s uniformity clause; 
(3) applying the tax to streaming services imposes a discriminatory tax on electronic commerce in violation of the federal Internet Tax Freedom Act (ITFA); and 
(4) the City is taxing activity outside its borders in violation of the U.S. Constitution’s commerce clause. 

The Cook County Circuit Court ruled against the residents and upheld the tax, and the residents appealed. The Appellate Court upheld the City's imposition of the tax on video streaming services, rejecting the residents' arguments and finding the ordinance valid. It was significant that the residents challenged the ordinance on "facial" grounds, the most difficult challenge for the residents to prove because the City only had to show any circumstance where the ordinance could be validly applied. Labell v. City of Chicago.

Friday, October 4, 2019

Quorum Forum Podcast: Live from the IML 2019!

Ancel Glink's own podcast, Quorum Forum, just released a new episode: Episode 29: WAGERING, WATCHDOGS, AND WEBSITES - LIVE FROM IML 2019! 

Details about this episode are below:

The latest Quorum Forum podcast was recorded live from Kitty O’Shea’s at the 2019 Illinois Municipal League Conference! State Rep. Chris Welch and Kurt Asprooth join us to discuss sports betting and gaming, while Keri-Lyn Krafthefer discusses government transparency and watchdog groups. Finally, Matt DiCianni takes a look at the future of local government websites. 

You can access Episode 29 here.

What interesting things did you learn at IML this year? Email us at podcast@ancelglink.com! 

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Wednesday, October 2, 2019

PAC Again Addresses "Resident Only" Public Comment in Binding Opinion

More from the PAC Office of the Illinois Attorney General - this time, a binding opinion on public comment at meetings. 

In PAC Op. 19-009, the PAC found a city in violation of the Open Meetings Act for prohibiting a member of the public from addressing the city council at a council meeting. A member of the public claims she stood up to speak at a city council meeting during public comment but was told by the mayor that he would not allow her to speak because she was not a city resident. 

She subsequently filed a complaint with the PAC claiming the city council violated the OMA by not letting her speak at the meeting. The PAC first noted that the city council had not adopted public comment rules so the council could not impose a restriction on public comment. The PAC rejected the city's reliance on Roberts Rules of Order as its public comment rules since the city could not identify specific rules addressing public comment at meetings. Since it had no rules in place, the city council could not impose a "resident only" restriction. But, even if the if the city council had adopted a "resident only" rule for public comment, the PAC stated that such a rule would violate the OMA because the public comment requirement of the OMA allows "any person" to address the public body, whether they are a resident or not. 

The PAC could have left its opinion there but instead it again seemed to engage in a First Amendment "designated forum" analysis of proper "time, place, and manner restrictions." Frankly, it isn't clear how the First Amendment would apply to this particular situation. But more concerning to this author, however, is that the PAC seems to be overstepping its statutory authority over OMA and FOIA issues by wading into constitutional issues best left to the courts. All that being said, the PAC has been clear in the past that public bodies should not adopt, impose, or enforce "resident only" restrictions or preferences for public comment at meetings, so that rationale is consistent with prior opinions.

Tuesday, October 1, 2019

PAC Publishes Index of Binding Opinions 2010-2019

I was checking out the PAC website to see if they had published any new binding opinions and discovered an index published by the PAC of all of its binding opinions from 2010 to-date. This is a very helpful resource for public bodies because it organizes the binding opinions by category, making it easier for a public body to find out whether the PAC has issued an opinion on a particular topic. 

For example, if a public body wants to know whether the PAC has issued a binding opinion on the authority to charge for copies, whether resumes are releasable, or how the "preliminary records" exemption has been applied, it can consult the FOIA index to identify opinions in which these topics are discussed. Since all of the PAC's binding opinions are available on the Attorney General's website, the public body can just pull up the cited PAC opinion. Or, if you want to find summaries of all of the PAC binding opinions from 2010-2018, you can find them right here on the Municipal Minute blog. Yep, we've been around that long!

You can access the FOIA index here and the OMA index here.

Monday, September 30, 2019

PAC Issues 8th Binding Opinion of 2019 Finding Police Department in Violation of FOIA

After a relatively quiet summer, the Public Access Counselor (PAC) in the Office of the Illinois Attorney General issued its 8th binding opinion this year. In PAC Op. 19-008, the PAC found a police department in violation of FOIA when it redacted portions of its police reports.

A news reporter submitted a FOIA request to a city police department (“PD”) seeking police reports concerning the arrests of two individuals. The PD subsequently provided him copies of the records, which consisted of two case reports and six officer supplement reports related to two different case numbers. The PD had redacted certain information from those records pursuant to Sections 7(1)(b) (private information), 7(1)(c) (unwarranted invasion of personal privacy), 7(1)(d)(iii) (deprivation of fair trial or impartial hearing), and 7(1)(d)(iv) (disclosure of confidential sources or witnesses) under FOIA. 

The requester submitted a Request for Review contesting the PD’s redactions of the narrative sections in each of the police reports. In response to the Request for Review, the PD supplemented its exemptions by also citing 7(1)(a) (disclosure prohibited by other law), alleging some of the information was exempt under Illinois Supreme Court Rule 415(c). Rule 415(c) provides:

“[a]ny materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.”

The PD asserted that the request sought information used in criminal cases in the Will County Circuit Court, and that the Will County State’s Attorney’s Office objected to release of this information . The PD also asserted that disclosure of the information would interfere with discovery in pending cases in Will County.

On September 24, 2019, the PAC issued its binding opinion making findings on each of the PD's cited exemptions for the redactions, as follows:

7(1)(a): The PD failed to meet its burden in claiming this exemption. The PAC found that there was no legal precedence to support withholding records under Supreme Court Rule 415(c). Further, there is no provision of FOIA that renders records exempt from disclosure on the basis of another public body objecting to their disclosure.

In a footnote, the PAC did state that the PD could redact any information present in the records that is contained in the Law Enforcement Agencies Data System (LEADS) since the Illinois Administrative Code expressly precludes the public from viewing or possessing such information.

7(1)(b): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD properly redacted several types of “unique identifiers” in the narrative sections of the police reports, including home or personal telephone numbers, a motor vehicle license number, and a home address. But, the PD improperly redacted the rest of the narrative sections in the police reports as the rest of the information did not fall within the plain language of this FOIA provision.

7(1)(c): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD improperly redacted information based on "invasion of personal privacy" because (1) it failed to provide an adequate factual basis for withholding the information, and (2) the legitimate public interest in inspecting the information concerning the investigations and arrests outweighed the arrestees’ privacy rights.

The PAC did state, however, that the PD could redact: (1) birth dates, and (2) information identifying a suspect of a crime who has not been arrested or charged in the police reports.

7(1)(d)(iii): The PD failed to meet its burden in claiming this exemption. The PAC found that the PD failed to set forth specific facts to show that the disclosure of the information would create a substantial likelihood that the arrestees would be deprived of a fair trial or an impartial hearing.

The PAC discounted the PD’s assertion of Section 7(1)(d)(iii) because the requested records concerned individuals who were arrested just days before the FOIA request was submitted. At the time of the FOIA request, there was no indication that a trial or adjudication was pending or truly imminent at that time.

7(1)(d)(iv): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD failed to articulate facts to support the redaction of all the information in the narratives relating to the actual witness statements. The redactions were, in part, improper because (1) some of the withheld information did not fall within the scope of Section 7(1)(d)(iv), and (2) this Section does not encompass information provided by criminal suspects under questioning by law enforcement.

The PAC did allow the PD to redact (1) the names of two witnesses under Section 7(1)(d)(iv), and (2) information that would identify any undercover officers pursuant to Section 7(1)(d)(vi).

Post Authored by Ashton Tunk & Julie Tappendorf

Friday, September 27, 2019

Upcoming APA Webinar: Gentrification, Displacement and the Law

The American Planning Association will be presenting a webinar on October 10th on "Gentrification, Displacement, and the Law. A description of the webinar and information about registration is below:

Thursday, October 10, 2019 
2:30 p.m. - 4:00 p.m. CT

CM 1.50 Law
CLE 1.50 through Illinois State Bar

Gentrification is one of the complex planning challenges of our times, but the legal limits on how local communities can respond to these pressures are often unclear. While there is no shortage of well-meaning ideas about how to slow the gentrification process or mitigate its impacts, some of those ideas may not be legal, and others could have significant unintended consequences. This webinar will review those laws that impose obligations to protect America's citizens against some forms of pressure and discrimination, as well as those that prohibit certain local government actions. This review will include the Community Reinvestment Act, the Fair Housing Amendments Act, and the Americans with Disabilities Act, and constitutional limits on interference with contracts or the fundamental right to buy and sell property. However, the real action on gentrification is at the local level, so panelists will also review selected municipal laws and policies. 

You can register for the webinar on the APA's website here.

Wednesday, September 25, 2019

Village's Sign Ordinance Did Not Violate First Amendment

This week, the Seventh Circuit Court of Appeals upheld a local ordinance regulating the size and location of signs against a First Amendment challenge.  Leibundguth Storage & Van Servce, Inc. v. Village of Downers Grove

The Village has a comprehensive sign ordinance that regulates, among other things, the size and location of signs in the Village. One regulation prohibits "any sign painted directly on a wall." Leibundguth has a wall sign that would fall into this prohibition (see below). 

Leibundguth filed a lawsuit challenging the Village's sign ordinance on the basis that it contained "content-based" exceptions for political signs, holiday decorations, and temporary signs that violated the First Amendment based on the U.S. Supreme Court's decision in Reed v. Gilbert. The court, however, did not agree with that argument, finding that Leibundguth's problems with the ordinance related to the size and surface limits and not content-based distinctions in the ordinance. Specifically, one of the signs was painted on the wall , another sign was too large, and a third wall contained two signs where only one was allowed by ordinance. In addition, the total amount of signage for the business exceeded 500 square feet, in excess of the 159 square feet allowed for that building. 

The Seventh Circuit ruled that the sign ordinance limitations on the size and presentation/location of signs were standard "time, place, and manner" regulations, a permissible form of zoning. The Village's rationale for these regulations (aesthetics) was not unreasonable or arbitrary, and the ordnance leaves plenty of alternative avenues of communication. In sum, the Village's sign ordinance did not violate the First Amendment.

Tuesday, September 24, 2019

Facebook Establishes Oversight Board to Advise on User Activity

If you hadn't heard, there was an interesting development out of Facebook last week when the company announced the establishment of an "Oversight Board" that would have authority to make final decisions about certain user posts that Facebook removes, among other issues. The Board will be governed by a charter and by-laws that would establish the structure of the Board and define the scope of its powers.

According to Facebook, one of the purposes of establishing the board is to address some of the more significant and difficult cases of user activity on the platform. Facebook has identified guidelines to prioritize these cases that focus on indicators on user activity that Facebook considers to have "significance" or "difficulty," which Facebook has defined as follows:
  • Significance: Significant means that the content involves real-world impact. The content in question should involve issues that are severe, large-scale and important for public discourse. Factors include:
    • Severity. The content threatens someone else’s voice, safety, privacy, or dignity.
    • Scale. The content reaches or affects a large number of people and/or illustrates a larger trend or issue on Facebook.
    • Public Discourse. The content spurs significant public debate and/or important political and social discourse.
  • Difficulty: The decision on the content raises questions about current policy or its enforcement. Strong arguments could be made for either removing or leaving up the content. Factors include:
    • Disputed. There is disagreement about Facebook’s decision on the content and/or the underlying policy or policies.
    • Uncertain. There is uncertainty about the correct decision according to Facebook’s policy.
    • Competing. There is a tension between equally important values. A reasonable person could imagine both arguments to remove the content or keep it up, and a decision either way necessitates a trade-off between values.
You can read more about Facebook's new initiative on its website here. It will be interesting to follow the implementation and see how this might impact government use of social media which, of course, is subject to a completely different legal landscape - the First Amendment.

Monday, September 23, 2019

PAC Addresses "Open and Convenient" Requirement of the OMA

Thanks to one of our readers, we recently were forwarded a non-binding Public Access Counselor opinion (2019 PAC 58076) that looked at whether a city council took sufficient measures to make some of its meetings accessible to the public pursuant to the "open and convenient" requirement under Section 2.01 of the Open Meetings Act.

Media outlets reported that after a local election, an Illinois city would discuss the qualifications of its Mayor-Elect during its April 22, 2019 council meeting. Specifically, the city council planned to discuss whether the Mayor-Elect met the residency requirements. At that meeting, however, the city council recessed the meeting prior to any discussion of the Mayor-Elect when the council learned the Mayor-Elect could not attend the initial meeting. The meeting reconvened the following evening.

The April 23, 2019 meeting was held at its usual location, in council chambers. The city council stated that it typically had seating for 49 members of the public, although average attendance did not exceed 20. The council anticipated that turnout would be higher for both meetings based on the public’s interest of the Mayor-Elect’s qualifications for office, so it supplied 103 chairs and allowed additional attendees to stand at the back of the chambers. Attendance on both nights reached the chambers’ maximum capacity, and some attendees had to temporarily wait in line outside of the chambers until other individuals left to gain access to the meeting.

One member of the public filed a request for review with the PAC alleging that the city council violated the OMA by improperly denying access to members of the public who wanted to attend the April 23, 2019 meeting because the meeting location reached its maximum capacity. The city council responded that the city’s fire chief did not turn any member of the public away or tell any attendee that they could not attend the meeting. The council further argued that at both meetings, members of the public were eventually permitted access.

In its July 31, 2019 determination letter, the PAC concluded that the city council did not violate the accessibility requirements of the OMA. The PAC reasoned that the city council only was required to provide reasonable access – not absolute access. The PAC noted that the council took reasonable steps to provide access by more than doubling the amount of seating in anticipation of a larger-than-usual turnout at the meetings, and that the council allowed other attendees to stand in the back of the chambers.

When anticipating increased turnout at a public meeting, local governments should remember to take all steps necessary to provide members of the public reasonable access. That may require bringing in additional seating, relocating the meeting to a larger venue, setting up additional rooms or areas where members of the public can watch live-streamed proceedings and still participate in public comment, or other steps to provide reasonable access.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Wednesday, September 11, 2019

Court Orders Public Release of Records Relating to Police Shooting of a Minor

Last week, the First Circuit decided NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department, a case addressing FOIA and the confidentiality provisions of the Juvenile Court Act (JCA).

In July 2014, Chicago Police Department police officers fatally shot a 16-year-old after he pointed a firearm at the officers on numerous occasions. There were several witnesses to the shooting, and the independent police review board in Chicago subsequently released basic details of the incident including the minor’s name, the date and time of the incident, and the type of incident. In January 2016, WMAQ filed a FOIA request with the CPD, requesting “all police reports, case reports, case incident reports and supplemental reports filed in the police shooting.” CPD denied the request arguing that the JCA barred disclosure of these records to WMAQ as it was not an “authorized party” entitled to access of the records. After CPD denied the FOIA request, WMAQ filed a request for review with the Public Access Counselor (PAC).

In February 2016, the PAC issued a nonbinding determination letter that concluded the CPD violated FOIA by withholding records concerning the investigation into the police shooting death of the minor. The PAC stated that the CPD had to disclose records that involved the investigation into whether the homicide of the minor was justifiable.

The CPD did not produce the records and WMAQ filed suit, seeking disclosure of all reports filed in the matter. The circuit court ruled in WMAQ’s favor, holding that the JCA’s prohibitions against unauthorized disclosure did not apply to the records of the investigation of the conduct of the police officers involved in the shooting of the minor.

On appeal, CPD asserted that the plain language of the JCA prohibited the disclosure of the requested records because WMAQ did not obtain a court order, and because the records were confidential since the victim of the shooting was a minor.

The Appellate Court ruled in favor of WMAQ and ordered release of the records. The Court rejected the CPD’s interpretation of the JCA as too broad since the purpose of the JCA is to protect the privacy of minors and not to shield alleged misconduct of public employees from public view. The Court stated that WMAQ was not required to obtain a court order to review the records because the records related to the investigation of police officers and did not relate to “the investigation, arrest, or custodial detention” of the minor in this case - an essential basis for confidentiality under the JCA. Finally, the Court rejected the CPD’s argument that the records of the independent police review board were wholly exempt from disclosure because the Act was amended in 2009 to provide independent agencies who investigate police conduct access to law enforcement records that relate to minors who have been investigated, arrested, or detained in custody.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Monday, September 9, 2019

New Quorum Forum Podcast Episode Released: Nice Meeting U!

Ancel Glink's Quorum Forum Podcast Episode 28 was just released: Nice Meeting U!

In this episode, the Quorum Forum podcast is heading back to school at Nice Meeting University! Ancel Glink’s Stewart Diamond teaches us about rules for good local government meetings, while Ashton Tunk covers Open Meetings Act news. We also study hard seltzer consumers' claims of immunity from statutes and local ordinances, based on the theory "there ain't no laws when you're drinking claws." 

What tips do you have for good local government meetings? Email us at podcast@ancelglink.com!

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Wednesday, September 4, 2019

Seventh Circuit Upholds Cook County's Assault Weapon Ban

Last week, the Seventh Circuit Court of Appeals upheld Cook County, Illinois' assault weapon ban against a Second Amendment challenge. Wilson v. Cook County, (7th Cir., August 29, 2019).

In 2006, Cook County adopted an ordinance making it illegal to "manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess" an assault weapon or large-capacity magazine in Cook County. Shortly after enactment of the ordinance, three county residents sued the county claiming that the ordinance violated various provisions of the U.S. constitution and exceeded the county's police powers. The Illinois Supreme Court dismissed most of these claims, but remanded the Second Amendment claim. The plaintiffs voluntarily dismissed the case at that time.

In 2015, the City of Highland Park enacted its own ban on assault weapons and large-capacity magazines which was also challenged on constitutional grounds. The Seventh Circuit Court of Appeals upheld that ordinance in 2015 in the case of Friedman v. City of Highland Park.

In 2017, two Cook County residents refiled their lawsuit against Cook County, including their previously dismissed due process and equal protection claims and the Second Amendment claim. The case was removed to federal court where it was dismissed by the district court. 

On appeal, the Seventh Circuit Court of Appeals reviewed the claims in light of its decision in the Friedman case involving the challenge to Highland Park's ordinance. The Seventh Circuit first noted that the Cook County ordinance was nearly identical to the Highland Park ordinance that the court had previously upheld. Second, the Court rejected the residents' argument that the Friedman case should be reconsidered, finding that its earlier ruling was still valid. Specifically, the Court determined that an assault weapons ban does not offend the Second Amendment because it does not leave residents without a means of self-defense. Third, the Court held that the U.S. Supreme Court's decision in Heller that struck down D.C.'s firearm ban, finding that an assault weapon ban is not "as sweeping as the complete handgun ban at issue in Heller." 

Tuesday, September 3, 2019

Illinois Adopts Single Occupancy Restroom Law

The Illinois General Assembly recently amended the Equitable Restrooms Act to address single-occupancy restrooms. P.A. 101-0165Effective January 1, 2020, all single-occupancy restrooms in any "place of public accommodations" and any "public building" must be identified as all-gender and marked with exterior signage that does not indicate any specific gender.  

This new law applies to "public buildings," which is not defined in this statute. It appears, however, that the new requirement will affect units of local government throughout the state that have single-occupancy restrooms in their government buildings. It is not clear whether the new requirements apply to all restrooms in a public building (including those in employee-only areas) or only to those restrooms that are made available to the public. We may get more clarity on how this law will be interpreted when administrative regulations are issued by the Department of Public Health, as required by the new law.

It is also important to note that this law is not restricted to only new construction or renovations, as indicated in section 20 of the new law. That means local governments should begin evaluating the need for modified or updated signage in their public buildings over the next few months to ensure compliance by January 1st.

The text of the new law is below:
    Section 5. The Equitable Restrooms Act is amended by changing Section 20 and adding Section 25 as follows:

 (410 ILCS 35/20)  (from Ch. 111 1/2, par. 3751-20)                    
    Sec. 20. Application. Except for Section 25, this This Act applies only to places of public accommodation that commence construction, or that commence alterations exceeding 50% of the entire place of public accommodation, after the effective date of this Act.

    (410 ILCS 35/25 new) 

    Sec. 25. All-gender single-occupancy restrooms. 
    (a) In this Section:
    "Place of public accommodation" has the same meaning provided in Section 5-101 of the Illinois Human Rights Act. 
    "Single-occupancy restroom" means a fully enclosed room, with a locking mechanism controlled by the user, containing a sink, toilet stall, and no more than one urinal.
    (b) This Section applies to any existing or future places of public accommodation or public buildings.
     (c) Notwithstanding any other provision of law, every single-occupancy restroom in a place of public accommodation or public building shall be identified as all-gender and designated for use by no more than one person at a time or for family or assisted use. Each single-occupancy restroom shall be outfitted with exterior signage that marks the single-occupancy restroom as a restroom and does not indicate any specific gender. 
    (d) During any inspection of a place of public accommodation or public building by a health officer or health inspector, the health officer or health inspector may inspect the place of public accommodation or public building to determine whether it complies with this Section.  
    (e) The Department of Public Health shall adopt rules to implement this Section.

Section 99. Effective date. This Act takes effect January 1, 2020.                   

Wednesday, August 28, 2019

Open Meetings Act "Personnel" Exemption Expanded

HB 2124 (proposing amendments to the Open Meetings Act) became effective last Friday. That legislation amends the OMA to allow a public body to go into closed session to discuss the hiring, firing, compensation, discipline, and complaints against specific individuals who serve as independent contractors in a park, recreational, or educational setting and specific volunteers under the "personnel" exemption under the OMA. 

Public bodies should remember that the PAC office of the Illinois Attorney General expects that public bodies using this exemption to go into closed session provide more detail in their motion that simply stating "personnel exemption." While the motion need not name the individual, it should provide a bit more detail, such as why the individual will be discussed (i.e., hiring, termination, etc). 

Tuesday, August 27, 2019

Appellate Court Addresses Prisoner FOIA Use

Last week, an Illinois appellate court upheld a circuit court's ruling that an inmate was not entitled to home addresses of other individuals under FOIA in an unpublished opinion.

In Serio v. Putnam Cnty. Sheriff’s Dept., Raymond Serio, an inmate of the Illinois Department of Corrections, sent two FOIA requests to the Putnam County Sheriff’s Department seeking specific information regarding individuals that had been booked into custody at the Putnam County jail. He asked for the name, age, full address, offense, date of arrest, and photos of each individual under Section 2.15(a) of FOIA. The Sheriff’s Department subsequently provided Serio the records he requested in part in response to both FOIA requests, but withheld the home addresses under Section 7(1)(b), which protects home addresses from release as "private information."

Serio sued, arguing that the Sheriff’s Department (1) willfully and intentionally failed to comply with his FOIA requests, (2) should be ordered to release the home addresses, and (3) should pay civil penalties and Serio’s costs of filing the lawsuit. The Sheriff’s Department reasserted its use of the "private information" exemption to bar disclosure of the addresses. The trial court ruled in favor of the Sheriff’s Department and denied Serio’s claim for relief. Serio appealed.

On appeal, Serio argued that the plain language of FOIA expressly provided for obtaining that information if it is included in arrest reports. This time, the Sheriff’s Department argued that Section 7(1)(e-10) of FOIA barred the disclosure. At the time of the trial court’s ruling, the exemption in Section 7(1)(e-10) had not yet been enacted.  This section exempts from FOIA the following:

  (e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections, Department of Human Services Division of Mental Health, or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim.

The appellate court determined that the Sheriff’s Department’s use of this exemption was proper and that it could withhold the home addresses. The court reasoned that although Section 7(1)(e-10) became effective after the trial court ruling, it applied retroactively as the legislature did not expressly state otherwise, and because it was a procedural change to FOIA rather than a substantive change that would preclude Serio from exercising his rights under the statute. Finally, Serio failed to explain in both his complaint and FOIA requests how the information he requested was relevant to “his current or potential case or claim” as required by Section 7(1)(e-10).

Post Authored by Ashton Tunk & Julie Tappendorf