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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

Tuesday, January 22, 2019

Quorum Forum Podcast Episode 18: Workers Compensation


Ancel Glink's Podcast Quorum Forum recently released Episode 18 - Workers CompensationA summary of the episode is below:

Nearly all employers have worker’s compensation claims, but how are they different for local governments? Experienced attorneys Britt Isaly and Greg Rode join us for a special meeting to discuss things local officials and staff might not know about worker’s compensation, including common defense strategies, the advantages and disadvantages of settlement, and a recent law providing new benefits to paramedics. We also discuss the Illinois Attorney General’s recent guidance on immigration issues in the workplace. Email your worker’s compensation questions to podcast@ancelglink.com!

Monday, January 21, 2019

Upcoming Planning and Law Case Law Update Webinar


The Planning and Law Division of the American Planning Association is hosting a webinar providing a planning and law case law update that may be of interest to local governments and land use professionals. Information about the webinar and a link to the registration is below:

Webcast— Planning and Law Caselaw Update

Thursday, January 31, 2019
1:00 – 2:30 PM Eastern (noon to 1:30 PM Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning and Law Caselaw Update on Thursday, January 31st, 2019 from 1:00 to 2:30 p.m. ET. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

The U.S. Supreme Court, federal courts, and state courts all play an important role in shaping planning throughout the country. This annual review delves into the important cases, the decisions that were made — or not made — and how this will affect planning at many levels.  It will also consider new legislative developments, both at the local and federal levels, which may influence the future of planning.  Speakers are John Baker, Esq., founding attorney of Greene Espel,  Deborah M. Rosenthal, Esq., FAICP, partner at Fitzgerald Yap Kreditor LLP, and Alan Weinstein, Esq., Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Professor of Urban Studies at CSU's Maxine Goodman Levin College of Urban Affairs.


Friday, January 18, 2019

Chicago Issues Opinion on Social Media Use of City Officials and Employees



On January 8, 2019, the City of Chicago Board of Ethics issued an advisory opinion addressing the use of social media accounts by City of Chicago elected officials, Chicago Police Department personnel in particular, and other City employees and officials regarding what content can be posted to social media accounts under the City's Governmental Ethics Ordinance. The opinion covers three types of social media accounts or websites: official, political/campaign, and personal.

Under certain conditions, City elected officials’ political/campaign or personal websites and social media accounts may include (i) content regarding City or ward business and (ii) political or electioneering content, including commentary on other politicians or their policies, campaign donation links, etc. To do so, the website or social media account cannot be funded or maintained with City resources or appear to be an official City site or account by containing items such as the City seal. In addition, the site or account must contain appropriate disclaimer language. 

If an elected official’s official or personal website or social media account does appear to be an official City site, it must remain free of electioneering content, such as “Reelect me for the following reasons.” It also cannot link to any political committee or contain links for making campaign donations, even if the sites or accounts are funded fully with political or campaign funds.

If an elected official’s personal social media account includes political content or postings commenting on public affairs or matters involving City government, the official should not block or delete followers or delete critical or negative comments. The opinion includes an exception for comments that are obscene, profane, libelous or defamatory, or are commercial and posted to sell goods or services.

The opinion also specifically provides that Chicago Police Department personnel are prohibited from posting intellectual property of the CPD or the City of Chicago, such as badges and logos, on their personal social media accounts.

Post authored by David Warner, Ancel Glink.  


Thursday, January 17, 2019

Denial of Request for Body Camera Video Violated FOIA


As we noted yesterday, the PAC has already issued two binding opinions this year. We reported on one of them yesterday, and here is the other:

In PAC Op. 19-001, a law firm requested a copy of a body-camera recording of a traffic incident in which the law firm's client was involved. The Chicago Police Department denied the request, citing the Law Enforcement Officer-Worn Body Camera Act. Specifically, the CPD stated that the Body Camera Act prohibited release of body camera recordings unless the recording had been previously "flagged." The requester appealed the denial to the PAC, arguing that the Act does not require prior flagging when the request for release of the recording is the subject or the subject's attorney.

The PAC agreed with the requester, and found CPD in violation of FOIA for not releasing the recording. Specifically, the PAC noted that the Body Camera Act allows disclosure of recordings under FOIA in certain limited circumstances.  First, a recording can be released if it is "flagged" because of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or body harm. Second, a recording can be released to the subject, the subject's attorney, the officer, or the officer's representative. The PAC rejected CPD's argument that the latter exception also required prior "flagging," finding that the statute did not include that language when allowing release to certain individuals. As a result, the PAC found CPD in violation of FOIA for not releasing the video recording to the subject's attorney. 

Wednesday, January 16, 2019

15 Minute Limit on Public Comment Violated OMA


The Public Access Counselor (PAC) Office of the Illinois Attorney General has been busy this January, already issuing 2 binding opinions just this week. We'll report on one of those opinions today, and another tomorrow.

In PAC 19-002, the PAC found a school district in violation of the Open Meetings Act when it restricted the public comment period at a school board meeting to 15 minutes without having an established and recorded public comment rule to that effect.

The school board conducted a meeting October 22, 2018, at which approximately 100 members of the public attended. At the meeting, the school board announced that members of the public would be permitted to speak for 3 minutes each, for a total of 15 minutes for all speakers. The board noted that these limits were in accordance with board rules that had been used before. A member of the public filed a complaint with the PAC after the meeting arguing that the board violated the OMA by imposing the 15 minute limit.

The PAC reviewed the District's "Board Policy Manual" which did include a limit on public comment at meetings of 3 minutes per person. However, the PAC noted in its opinion that the school board's manual did not include a reference to a 15 minute total cap on public comment. The school board argued that it also had adopted a "Board's Welcome Handout" that specifically included a reference to time limits for public comment as follows:  "3 minutes per speaker, with a maximum of 15 minutes, per topic, per speaker." The board noted that the Welcome Handout is placed on a table next to the agendas and sign in sheet at every board meeting, and had been the past practice of the board for at least 10 years.

The PAC reviewed section 2.06(g) of the OMA which allows a public body to adopt rules for public comment. The PAC noted that those rules must be "established," which the PAC interpreted to mean adopted by the board and "recorded" by the public body. The PAC accepted the "Board Policy Manual" as an established and recorded policy on public comment within the meaning of the OMA. However, since the school board had not taken any action to formally adopt the Welcome Handout, the board could not rely on the 15 minute cap on public comment in an "unestablished and unrecorded rule." As a result, the PAC found the board in violation of the OMA for imposing the 15 minute cap on public comment. 

Although the PAC found the 15 minute cap to be a violation of OMA because the board had not formally adopted that rule in an established and recorded policy, it did not opine that a cap on the total time for public comment would be unreasonable. In fact, the PAC acknowledged that a public body does have the inherent authority to conduct its meeting in an efficient manner, and that section 2.06(g) does not require public comment to be allowed to continue indefinitely. However, in a footnote, the PAC noted that there may be circumstances where the application of such a cap might unreasonably restrict the right to address public officials, particularly at a meeting with only one, highly controversial subject on the agenda. The PAC has, in a previous opinion, upheld a 30 minute cap on public comment that was in a formally adopted and recorded policy.

This opinion is another reminder to public bodies of the importance of ensuring that any limitations on public comment, whether they be time limits, rules on decorum , or any other rules on public comment, must be formally adopted by the public body. A public body cannot simply rely on "past practices" or on language in a handout or on an agenda. 

Tuesday, January 15, 2019

Two Final Binding PAC Opinions for 2018


Earlier this month, we reported on 2018 binding PAC opinions.  To our surprise, the PAC issued two last minute binding opinions for 2018 on December 31.  Both involved FOIA complaints.

In it’s 17th binding opinion of the year, the PAC again found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-017.

In the 18th and final binding decision of 2018, the PAC found a public body in violation of FOIA for withholding two complaints against a police officer under 7(1)(c) as an invasion of personal privacy. The PAC found that because the complaints related to an employee’s public duties, the disclosure of the complaints would not constitute an unwarranted invasion of the employee’s personal privacy. That ruling is consistent with other PAC decisions that deal with complaints about public employees -- the PAC has consistently determined these complaints are not exempt under 7(c) of FOIA because that section says that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” However, the PAC did note that names and other discrete information identifying the complainants would be exempt under 7(1)(c). PAC Op. 18-018. 

The opinion did not address whether the complaints might have been exempt under another FOIA exemption. For example, depending on whether or not an administrative hearing or investigative process was ongoing, the complaints may have been exempt under FOIA. 

Post Authored by Erin Pell, Ancel Glink

Monday, January 14, 2019

County Official's Facebook Page a "Public Forum"


In August of 2017, we reported on a case out of Virginia involving a claim of First Amendment violations against an elected official who had deleted critical posts and blocked a poster from her Facebook page. In that case, the district court found that the county official had violated the First Amendment rights of the poster because (1) the official used her Facebook page as a "tool of governance" for keeping constituents informed of county activities and to solicit feedback from constituents; (2) the official used county resources to support her page because county staff had access to post on the page; (3) the county's official newsletters promoted the elected official's Facebook page; and (4) the official's Facebook page included numerous references to the official's position, linked to the county's website, and the majority of the posts related to county business. Because the county official was acting in her official capacity when she engaged in these Facebook activities, the court found she had engaged in viewpoint discrimination in violation of the Firsts Amendment when she banned a user from her page. 

The county official appealed the decision to the Fourth Circuit Court of Appeals, which issued its opinion on January 7, 2019. In short, the Court of Appeals upheld the ruling that the county official's Facebook page was a "public forum" and that she had violated the First Amendment when she deleted critical posts and banned a user. The Fourth Circuit rejected the official's and county's argument that the Facebook site was not a public forum because it was "private property." The Court also rejected the argument that the official's Facebook page was "government speech" because the site was an interactive space where comments could be posted by others.  

Although this case is not binding outside of the Fourth Circuit, it is still an important one for government officials and employees because there are so very few cases that address government use of social media and its effect on First Amendment rights and protections. To the extent a government official establishes a Facebook, Twitter or other social media presence to communicate about government issues, a court could find that the sites are considered a "public forum." That means that censorship of those sites (i.e., deleting or hiding posts or blocking or banning users) could rise to the level of a First Amendment violation. It's important to note that this ruling was not restricted to only the "official" pages or sites of the government entity, but could include even personal social media sites or pages used by an official to communicate about government issues or activities.

You can read the case here: Davison v. Randall (4th Cir. Jan. 7, 2019)

Friday, January 11, 2019

FOIA Case Finds City Did Not Violate FOIA



In Turner v Joliet Police Department, 2019 IL App (3d) 170819 the court found that the city did not violate FOIA by exempting police reports concerning the requestor based on Illinois Supreme Court Rule 415 (c).  Rule 415 (c) governs discovery in certain criminal cases.  “Any 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.”  Notes to the rule state: “If the materials to be provided were to become, in effect, matters of public availability once they had been turned over to counsel for the limited purposes which pretrial disclosures are designed to serve, the administration of criminal justice would likely be prejudiced. Accordingly, this paragraph establishes a mandatory requirement in every case that the material which an attorney receives shall remain in his exclusive custody.  While he will undoubtedly have to show it to, or at least discuss it with others, he is not permitted to furnish them with copies or let them take it from his office.”

Joliet relied on this rule and FOIA section 7(1)(a) to deny the requested police report to Mr. Turner, who was the subject of a pending criminal prosecution. The court upheld Joliet’s action, along with other exemptions claimed by Joliet. In doing so the court distinguished 2013 Ill. Att’y Gen. Pub. Access Op. No. 13-017 which held that a party’s right to discovery does not constitute a FOIA exemption and does not preclude an FOIA request. The 2013 Public Access Opinion involved civil litigation not criminal prosecution.

Rule 415 applies where the accused is charged with a felony. Public police agencies should consult their attorneys to determine whether Rule 415 and FOIA section 7(1)(a) may be used to exempt police reports when requested by a criminally accused requestor.

Post Authored by Steve Mahrt, Ancel Glink

Thursday, January 10, 2019

Quorum Forum Podcast: Sunshine Laws



Ancel Glink has released Episode 17 of its Quorum Forum Podcast:  Sunshine Laws 

We’re staying warm this winter with sunshine laws! Erin Pell talks about managing requests for public records under the Freedom of Information Act, while Ancel Glink Today’s David Warner brings us recent updates from the Illinois Attorney General’s Public Access Counselor. Then, Julie Tappendorf joins us from the popular Municipal Minute blog with top tips for holding legal meetings under the Open Meetings Act. We also talk about required electronic training, which you can find on the Attorney General’s website here

What common questions do you have about FOIA or OMA? Email us at podcast@ancelglink.com!

Monday, January 7, 2019

Top 10 Posts of 2018


We are just a week into 2019, so it seems a fine time to recap some of the more popular Municipal Minute blog posts from last year.  Thank you for your continued readership! We look forward to reporting on new laws, cases, and PAC opinions in the year to come!

1.  Bills Would Prohibit Use of Public Funds for Employee Professional Development and Training Expenses  This post was the most read post of 2018, probably because of the wide-ranging impact on government employees if these bills had been enacted (they were not).

2.  Teacher Fired for Social Media Posts About Student

3.  Police Officers Emails on Private Devices Subject to FOIA and Alderman's Texts and Emails on Private Devices Not Subject to FOIA  These two opinions are interesting, particularly in the differing ways communications by elected officials and employees were viewed.

4.  City Not Liable for Flooding on Residents' Property

5.  Law Restricts Posting of Mugshots on Police Social Media Sites

6. New Law Allows Website Posting of Prevailing Wage Rates

7.  Changes to Non-Resident Library Fees

8. PAC Issues 12th Binding Opinion Regarding "Personnel" Exception to OMA It is important that all government bodies be aware of this opinion to ensure that they are properly citing this particular exception prior to going into closed session.

9.  President's Blocking of Twitter Users Found Unconstitutional

10. Government Severance Pay Act Becomes Law in Illinois  This is an important new law as it will affect how government entities negotiate employment contracts (and their amendments and extensions) as well as severance or separation agreements moving forward.


Thursday, January 3, 2019

PAC Binding Opinions for 2018


It's the beginning of a new year, and that means it is time to summarize all of the PAC's binding opinions issued in 2018.  There are 16 of them this year.  2 OMA opinions and 14 FOIA opinions (4 of which deal with a complete failure to respond to a FOIA request).  Enjoy!

PAC Op. 18-001 (Resignation letter releasable under FOIA)
In PAC Op. 18-001, the PAC found a public body in violation of FOIA when it provided a redacted copy of the village president’s resignation letter in response to a FOIA request. The PAC rejected the village’s argument that the information that was redacted was exempt as part of the “deliberative process” under 7(1)(f) of FOIA. The PAC also rejected the village’s argument that it was exempt under 7(1)(n) as adjudication of an employee grievance or disciplinary case because the village had not identified any ongoing or contemplated grievance, complaint, or disciplinary action that was or would be adjudicated.

PAC Op. 18-002 (Water customer information not exempt)
In PAC Op. 18-002, the PAC rejected a city's argument that a water customer's name was exempt from release under the "private information" exemption (section 7(b) of FOIA), finding that the definition of "private information" in section 2(c-5) of FOIA did not expressly exempt a person's name from release, and ordered release of the water customer’s name.

PAC Op. 18-003 (Failure to respond to FOIA)
The PAC found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-003.

PAC Op. 18-004 (City failed to show that developer financial information a “trade secret”)
The PAC found a public body in violation of FOIA when it failed to release public records relating to redevelopment project costs in response to a FOIA request. PAC Op. 18-004. The PAC rejected the city's argument that the developer’s financial information was proprietary and a trade secret under section 7(1)(g), finding that the city did not establish that the information was provided under a claim of confidentiality and that disclosure would cause competitive harm.

PAC Op. 18-005 (Salary information about public employees subject to FOIA)
The PAC found a public body in violation of FOIA when it denied a request for records of City employees’ wages and salaries, rejecting the city’s argument that it was “personal information” that is exempt under 7(1)(c) of FOIA. PAC Op. 18-005.

PAC Op. 18-006 (Failure to respond to FOIA)
The PAC found a public body in violation for failing to respond to a FOIA request. PAC Op. 18-006.

PAC Op. 18-007 (Repeated requests)
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. The public body had 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. On appeal, the PAC determined that because the public body 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. 

PAC Op. 18-008 (Unduly burdensome/trade secrets)
In PAC Opinion 18-008, the PAC found that a public body improperly denied a request for records as unduly burdensome because it was a repeated request for the same records, and further finding that the financial terms requested were not exempt under 7(1)(g).  The PAC noted that a repeated 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 found that CCHHS failed to demonstrate that disclosure of the rates would cause competitive harm.   

PAC Op. 18-009 (Private information)
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. The PAC rejected the public body’s argument that PINs were "unique identifiers" under 7(1)(b), finding that this exemption applies to information about people (such as a social security number), and not information about property.

PAC Op. 18-010 (Settlement agreement)
In PAC Op. 18-010, the PAC found a public body in violation for FOIA for not disclosing the details about claims that were the subject of a settlement agreement. The redacted information described the nature of the principal's allegations against the district in broad, general terms but did not detail any circumstances or events giving rise to the allegations. The PAC rejected the district's argument that the issues surrounding the allegations were sensitive and highly personal in nature, and determined that the public had the right to see the terms that led to the district paying a settlement to the former employee in exchange for his resignation.

PAC Op. 18-011 (Failure to respond to FOIA)
In PAC Op. 18-011, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request, and failing to respond to the PAC's request for review.

PAC Op. 18-012 (Budget discussion in closed session)
In PAC Op. 18-012, the PAC found a public body in violation of the Open Meetings Act for improperly discussing its budget, layoffs, and related matters in closed session during a board meeting. The public body argued that that the Board’s discussion was about specific employees within the scope of section 2(c)(1) of the OMA that authorizes the discussion of compensation, performance, hiring, and dismissal of specific employees.  The PAC concluded that the Board of Trustees' closed session discussion exceeded the scope of the OMA's exceptions, and violated the OMA. The PAC ordered the public body to release a copy of the closed session minutes and verbatim recording, except for that portion that discussed a specific employee.

PAC Op. 18-013 (Unduly burdensome)
The PAC found that the Governor’s office improperly denied a request for records as unduly burdensome. PAC Op. 18-013. The Governor’s office claimed its initial search for emails yielded 44,356 potential responsive emails.  The PAC found that the Governor’s office failed to demonstrate that the initial search was a reasonably adequate search for responsive emails, noting that a subsequent more narrow search yielded only 1,783 potentially responsive emails.  The PAC found that the Governor’s office did not show that review of 1,783 emails would be unduly burdensome.  Further, the PAC noted that the Governor’s office did not show that the burden of reviewing and responding to this FOIA request would outweigh the public interest in the information sought.  

PAC Op. 18-014 (Failure to respond to FOIA)
The PAC found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-014

PAC Op. 18-015 (Performance/salary of elected officials in closed session)
The PAC found a public body in violation of the Open Meetings Act when it discussed the performance and salaries of two elected officials in closed session. PAC Op. 18-015. The PAC rejected the public body’s use of the “personnel” exception under 2(c)(1) of the OMA, finding that it only applied to employees, not elected officials. The PAC also rejected the exception contained in 2(c)(3) which allows a closed session discussion of public officers, noting that this exception only applies if the public body has the authority to remove the public officers being discussed, which is not the case with these two elected officials.

PAC Op. 18-016 (Release of records relating to minor victim/witness)
In PAC Op. 18-016, the PAC found a public body in violation of FOIA when it denied a request for accident reports involving six minors who were listed as victims and witnesses in the report. The PAC found that the Juvenile Court Act protects law enforcement records where a minor is being investigated, arrested, or taken into custody, but does not protect records where the minor is a victim or witness.  


Wednesday, January 2, 2019

A Few Laws Taking Effect January 1st


More than 250 new laws took effect yesterday (January 1, 2019). A few of these will affect local governments, some of which are summarized below:

New Police Training Laws
  • P.A. 100-910 expands the sexual assault training requirements for police officers to include victim sensitivity training.
  • P.A. 100-984 requires the Law Enforcement Training Standards Board to develop a program for school resource officers (SROs), including training requirements.
  • P.A. 100-970 requires all police departments to adopt written policies for the internal review of officer-involved shootings.
Government Employees 
  • P.A. 100-895 prohibits government employers from entering into or extending/amending contracts that would pay out more than 20 weeks of severance payments. The new law also prohibits payment of severance when the employee has been fired for misconduct.
  • P.A. 10-1094 amends the Illinois Wage Payment and Collection Act to require employers to reimburse necessary expenditures or losses incurred by employees within the employee's scope of employment and directly related to services performed for the employer.
Fire Chief Qualifications
  • P.A. 100-1126 modifies the qualifications for the appointment of municipal fire chiefs.
Township Officers
  • P.A. 100-868 prohibits elected and appointed township officials from simultaneously holding any other employment with the township.
School Laws
  • P.A. 100-996 requires active shooter/threat school safety drills to be conducted within 90 days of the start of the school year.
  • P.A. 100-1055 adds new requirements for the oath sworn by school board members taking office.
  • P.A. 100-800 provides that if a school board has to fill a vacancy for lack of candidates in a particular area of the district, the board must first put a proposition on the ballot at the next general election to elect school board members "at large."
Social Media
  • P.A. 100-1000 expands the stalking law to include sending unwanted messages via social media.