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Friday, December 28, 2012

2012 Municipal Minute in Review

2012 has been a big year for municipal law, and Ancel Glink has been there to keep you updated every step of the way. As the year comes to a close, we summarize the biggest stories of the year, in 140 characters or less:

Court rejects constitutional challenge to red-light cameras. 3/27
Municipal ordinances imposing administrative towing fees authorized by amendments to Illinois Vehicle Code. 1/16

Government Transparency
5th Circuit upholds Texas Open Meetings Act, ruling that criminal penalties in the Act do not violate the 1st Amendment. 9/27 
Village board violated Open Meetings Act when discussing budget issues in closed session. 7/19 
New law amends Open Meetings Act to require more specificity for agenda items. 7/20
Text messages between public officials pertaining to public business are subject to release under FOIA, even if sent on private cell phones. 6/25
Public bodies must identify public employees by name, not job title, when posting salary and compensation information. 12/3 

Gun Control
The 7th Circuit finds Illinois’ concealed carry ban unconstitutional. 12/11 
Court strikes down another part of Chicago's gun ordinance. 6/26

Land Use
The Supreme Court rejects a blanket temporary flooding exception to the Takings Clause, overturning a decision by the Federal Circuit. 12/5 
ADA does not prohibit municipalities from closing medical marijuana dispensaries, according to the 9th Circuit. 5/23 
Telecommunications Act Amendments limit local government control over cell phone towers. 2/27 

City must pay health insurance premiums for catastrophically injured firefighter, but not required to pay for supplemental Medicare coverage. 10/17 
Is an elected official an employee? It depends… 3/5 
City not liable after its alderman punched one of his constituents in the face, knocking him out. 10/30 

Enforcement of Illinois eavesdropping law blocked after Supreme Court denial of certiorari leaves injunction barring the law in place.11/26 
Tickets on windshields may violate Driver’s Privacy Protection Act, potentially imposing massive liability on municipalities. 8/17 

Property Maintenance and Inspections
Illinois General Assembly passes bill to help local governments clean up abandoned homes and prevent new foreclosures. 12/12 
Park districts have immunity for snow removal actions, and have no duty to remove natural accumulations of ice and snow. 10/29 
Ordinance requiring inspection and rental occupancy permit prior to occupancy of rental units held unconstitutional. 1/26 

Social Media
District court judge rules that clicking “like” on Facebook is not speech protected by the 1st Amendment. 9/7 
Lawsuit claims that city’s Facebook page is a public forum, and that city cannot remove comments posted on the page due to their content. 8/23 
New laws prohibit employers from forcing employees and job applicants to disclose their social media passwords. 4/20, 4/13, 3/28
New article provides municipalities with recommendations in their use and control of social media communications. 1/11

Happy New Year!

Authored by Julie Tappendorf and Matt DiCianni, Ancel Glink

Wednesday, December 26, 2012

Gun Regulations Under the New Second Amendment

In light of the recent Seventh Circuit decision in Moore v. Madigan (overturning Illinois' concealed carry ban), local government officials must consider the effect of expanding rights under the Second Amendment when regulating handguns, including gun shops, firing ranges, and home occupations.

In an article recently published in the American Bar Association's The Urban Lawyer, Ancel Glink attorneys Dan Bolin and Brent Denzin review the emerging constitutional framework, and how communities can permissibly regulate gun-related land uses.  In When All Heller Breaks Loose, local government and land use officials learn that more evidence will be needed to support a gun regulation when that regulation strikes closer to the core Second Amendment right -- the right to possess a handgun for self-defense. Check out When All Heller Breaks Loose:  Gun Regulation Considerations for Zoning and Planning Officials Under the New Second Amendment, 44 Urb. Law. 677 (2012).

Thursday, December 20, 2012

Reminder - Tax Levy Filing Deadline Early This Year

Under Illinois law, taxing bodies must file their tax levy ordinances with their respective county clerks' offices no later than the last Tuesday in December.  This year, the last Tuesday falls on Christmas Day.   The Department of Revenue has advised county clerks that, unlike with other statutes, the filing deadline does not get extended to December 26th, the day after the holiday.  Instead, taxing bodies must file their levies before December 25th. 

Some county offices are closed on both Christmas Eve and Christmas Day this year.  In those counties, taxing bodies must file their levy ordinances no later than December 21st.  As an example, Lake County, Illinois is closed both December 24th and 25th, so the last day to file a tax levy in Lake County is tomorrow, December 21st.  You should check with your county clerk's office to ensure that your tax levy ordinance is timely filed.

City Access to Employee's Text Messages Does Not Violate Stored Communications Act

The Fifth Circuit Court of Appeals recently held that a municipality's access to and dowloading of text messages and images from a police dispatcher's cell phone did not violate the federal Stored Communications Act.  Garcia v. City of Laredo.  The dispatcher had filed suit against the City after she was terminated for violation of police department rules and regulations because of the nature of the images and text messages retrieved from her cell phone. The district court had dismissed the case, and she appealed to the Fifth Circuit.

Congress passed the Stored Communications Act (SCA) in 1986 as part of the Electronic Communications Privacy Act to protect potential intrusions on individual privacy that were not addressed by the Fourth Amendment.  The SCA prohibits accessing without authorization any "facility" that provides electronic communication services in order to obtain access to an electronic communication in electronic storage.  The dispatcher had claimed that the City's access to her private cell phone violated the SCA.  The City countered that the SCA does not apply to data stored in a personal cell phone.  The Fifth Circuit agreed with the City.  First, the intent of the SCA is to apply to telephone companies, Internet or e-mail service providers, and bulletin board services.  Second, the Court found that a personal cell phone is more like a home computer, and courts had previously held that access to a home computer was not covered by the SCA. 

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, December 19, 2012

Why You Should Read a Social Media Site's TOS

It started in February with a blog post by an attorney and photographer who said she would "quit" Pinterest because of her concerns of legal liability by "pinning" photographs from the web to her Pinterest page.  Pinterest is a social networking site that allows users to create pages and "inspiration boards" where they can "pin" photos and other images to their virtual corkboard.  She was concerned with two issues relating to Pinterest's terms of service (TOS).  First, the TOS required all users to represent and warrant that all material pinned on Pinterest is owned by the member user.  Second, the TOS required all users to indemnify, defend, and hold Pinterest harmless if any lawsuit was filed against Pinterest for copyright violations.  She was concerned about the lack of any mention of a "fair use" exception, as well as the broad nature of the indemnification provision and decided to delete her inspiration boards from her Pinterest page.  This would not have created much buzz, except she wrote about her experience on her blog and the Wall Street Journal picked up the story. Ultimately, she kept her Instragram account, but deleted her inspiration boards.  

Fast forward 10 months and now the issue is with proposed changes to Instragram's terms of service.  Instragram is a social networking site where users post photos for others to see, "like," and share comments.  Instragram announced this week that it will modify its TOS to allow Instragram to use, display, or sell its members' user names, likenesses, photos, and activities for paid or sponsored content or promotions.  No compensation will be paid to members for the use or sale of their content.  Instragram will also be able to share users' information with Facebook, which company now owns Instragram. These changes would be effective January 16, 2013, so users have less than a month to decide whether they are ok with the possibility that their photos may be sold and used for commercial purposes, without their consent and without payment of any compensation.

In response to an outpouring of opposition to the proposed changes, Instragram appears to be backing off from its initial proposal to change its TOS.  Late Tuesday afternoon, Instragram posted on its blog that it would revisit the proposed changes to make it clear that it has no intention of selling users' photos. 

While social media users are getting used to the proliferation of ads on social networking sites and elsewhere on the internet, social networking sites will need to tread carefully in instituting changes that affect a user's expection of privacy and ownership of the content the user posts on FB, Instragram, and other popular social networking sites.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 18, 2012

Upcoming Webinar on Development Agreements

On January 22, 2013, the American Bar Association will host a webinar on development agreements, presented by the authors of the newly released book "Development by Agreement: A Tool Kit for Land Developers and Local Governments."  The program will be of benefit to local governments and developers/property owners who want to stimulate development in difficult economic times.  A description of the program and details about the authors are below and you can also find out more about the webinar on the ABA's website
Program Description:
Land owners and local governments often enter into agreements with the objective of fixing, if not increasing, public benefits while simultaneously reducing the uncertainty often associated with proposed but not yet built development.  This program will provide an overview of the tool kit of agreements typically available to local governments and developers to solve community problems while providing increased development certainty in uncertain economic times.  Such agreements include, for example, those needed to finance community benefits, provide affordable housing, assure school impact mitigation, or simply provide a period of time and process for exclusively negotiating the terms of such agreements.  The panel will delve into the statutory and judicial authority for such agreements, even when the required "nexus" between the agreed upon benefits and the development may fall short of that required when an agency is simply imposing conditions of approval, fees or exactions.  This program is a must for those looking to stimulate development in their communities.
David L. Callies, FAICP, is a Benjamin A. Kudo Professor of Law at the University of Hawaii School of Law and coeditor of the annual Land Use and Environment Law Review.
Cecily T. Barclay is a partner with Perkins Coie LLP in San Francisco and is co-author of the annual Curtin's California Land Use and Planning Law.
Julie A. Tappendorf is a partner with Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. in Chicago, an adjunct professor at the John Marshall Law School, and the author of this blog.

Thursday, December 13, 2012

Ancel Glink Defense E-News Just Released

Ancel Glink's litigation group just released a new edition of Ancel Glink Defense E-News (4th Quarter). The Defense E-News is an electronic newsletter that focuses on the latest court decisions and legislative changes in litigation which may affect our local government clients.  You can read the Defense E-News in the Resource Center on Ancel Glink's website.

New Municipal Laws Taking Effect January 1st

The Illinois Municipal League has released a list of new laws that municipalities should be aware of that take effect January 1, 2013.  You can read more about the list on the IML's website and some of the new laws are summarized below:

Deadline for filing candidate nomination petitions moved from Dec. 24th to Dec. 26th (PA 97-1044)

Employers cannot require or request employee or candidate social media passwords (PA 97-875)

Employers no longer must notify contractors of changes to prevailing wage rates (PA 97-964)

Meeting agendas must contain the "general subject matter" for action items. (PA 97-827)

Notices/agendas must be continuously available for public review for 48 hours before meeting (PA 97-827)

Reports concerning sales tax rebate agreements must be filed with the Dept. of Revenue (PA 97-976)

New notice and hearing requirements must be followed for the establishment of SSAs (PA 97-1053)

Items seized by police during a traffic stop must be returned to the Secretary of State (PA 97-743)

Police now required to issue tickets for illegal parking in spaces reserved for the disabled (PA 97-845)

IDOT must provide notice to municipality of projects causing lane closure of 5 days or more (PA 97-992)

Use of DUI funds now expanded to include equipment, training, and safety checks (PA 97-1050)

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, December 12, 2012

Foreclosure Bill Passes Illinois General Assembly

Last week, the Illinois General Assembly passed Senate Bill 16 (House Amendment 8) to help local governments clean up abandoned homes and prevent new foreclosures. The bill is intended to generate revenue for foreclosure prevention and neighborhood stabilization programs and streamline the foreclosure process for abandoned homes. 

Details of the bill include provisions to:
  • fast track the foreclosure process for abandoned homes.  It is expected that the new process will reduce the timeline for the foreclosure process from the current 21 months to about 3 months.
  • require a new foreclosure fee that will be placed in two funds:  the Foreclosure Prevention Fund (FPF) and the Abandoned Residential Property Municipality Relief Fund (ARPMRF). 
  • fund grants (through the RPF) to local governments to maintain and secure abandoned homes, including $28 million in grants to local governments.
  • fund grants (through the ARPMRF) for housing counseling agencies to assist homeowners in preventing foreclosures.
Senate Bill 16 now heads to the Governor for his signature. 

Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, December 11, 2012

Illinois' Concealed Carry Ban Found Unconstitutional

In a Second Amendment challenge to the constitutionality of Illinois’ ban on carrying concealed guns, the Seventh Circuit Court of Appeals found that the state failed to meet its burden to provide “more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.” Moore v. Madigan, Nos. 12-1269, 12-1788 (7th Cir. Dec. 11, 2012).  Illinois was the only remaining state that maintained a flat ban on carrying ready-to-use guns outside the home.

As we discussed in June, the Supreme Court decision in District of Columbia v. Heller, first recognized a personal right to possess a handgun for self-defense, especially in the home. 554 U.S. 570 (2008).  In Moore v. Madigan, the district court had concluded that, based on Heller, the core Second Amendment right only exists inside the home. On appeal, the Seventh Circuit disagreed.  

The Seventh Circuit noted that Heller simply indicated that the need for defense of self, family, and property is most acute in the home.  Therefore, “[a] right to bear arms this implies a right to carry a loaded gun outside the home.” In applying this right to the ban on carrying concealed weapons outside the home, the Court concluded that the state failed to make the required “strong showing” of empirical evidence to show that its gun ban was vital to public safety.  Bans that focus on particular places or dangerous people can be upheld with less evidence. 

The Seventh Circuit’s decision is stayed 180 days to allow the Illinois General Assembly an opportunity to craft a new gun law consistent with the Court’s opinion. The Court had some suggestions, stating that “Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.” These might include:

  • allowing “open carry” of guns in public;
  • “minimal” permit restrictions;
  • bans limited to particular places and obviously or empirically dangerous people;
  • training requirements; and
  • requiring applicants to demonstrate a need for a handgun to ward off dangerous persons.
While Second Amendment jurisprudence is still developing, it is increasingly clear that local governments should be prepared to produce evidence that their local gun regulations actually accomplish their asserted public safety goals.

Post Authored by Dan Bolin, Ancel Glink

Monday, December 10, 2012

Seventh Circuit Rejects Challenge to Wind Farm Ordinance

County officials amended a zoning ordinance to make it easier for residents to build wind farms.  Plaintiff owns three tracks of land zoned agricultural in the county, and brought suit in federal court out of concern that a wind farm on adjacent property would damage her land because of the potential for interference with electronic communication, lightning damage, and electromagnetic radiation.  Plaintiff alleged that County officials violated the takings clause of the U.S. Constitution and the Illinois Constitution, as well as the due process clause.

The district court dismissed the lawsuit for failure to state a cause of action.  The Seventh Circuit affirmed.  Muscarello v. Winnebago County Board, Nos. 11-2332 & 11-3258 Cons. (December 7, 2012).  First, the Seventh Circuit held that plaintiff failed to prove a taking pursuant to the U.S. Constitution because the ordinance does not transfer possession of any of her property or limit its use.  Further, the Court found that plaintiff did not assert a valid argument for a taking pursuant to the Illinois Constitution because no wind farms have even been built within the county and no physical disturbance of property has occurred.  The Court also rejected plaintiff’s due process argument, finding that merely allowing residents to build wind farms is insufficient to establish a deprivation of property.  The court also acknowledged that even a nuisance suit would fail as plaintiff had not actually suffered any harm.  Merely the possibility that a wind farm might someday be built nearby is not enough to establish sufficient harm.   

Post Authored by Erin Baker, Ancel Glink.

Wednesday, December 5, 2012

Supreme Court Rejects Blanket Temporary Flooding Exception to Takings Clause

We previously reported on an appeal to the U.S. Supreme Court involving a claim that flooding caused by the federal government resulted in a Fifth Amendment "taking" requiring payment of just compensation. Yesterday, the Supreme Court issued its opinion in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), reversing the Federal Circuit’s previous ruling that there was no taking because the flooding was not "permanent or inevitably recurring."
The plaintiff had argued that actions taken by the Army Corps of Engineers in releasing water from a dam caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber and a substantial change in the character of the terrain, necessitating costly reclamation measures. The federal government had defended its actions by arguing that there is an exception to the takings clause for temporary flooding actions by the government, which argument was accepted by the Federal Circuit Court.

The Supreme Court rejected any blanket temporary-flooding exception to the Fifth Amendment takings clause, stating that "[w]hile we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases." The Court did not rule on the actual takings claim presented by the plaintiff, however, instead remanding the case to the lower court to apply the Court’s takings analysis to the specific facts of the case.
Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, December 4, 2012

Aldermen’s Opposition to Officer's Appointment Not A Free Speech Violation

The Seventh Circuit recently held that a group of aldermen did not violate the First Amendment when they refused to confirm a Commissioner’s appointment for his lack of political support.  In Embry v. City of Calumetplaintiff, the Commissioner for the Department of Streets and Alleys, supported the mayor and a group of aldermen running as a slate in the municipal election.  The aldermen then defected from the team of candidates and pressured plaintiff to support a rival candidate.  When plaintiff refused to support the rival, the aldermen threatened to oppose ratification of his appointment as commissioner of a new department, which encompassed the old Department of Streets and Alleys.  The mayor then appointed another person as commissioner of the new department and plaintiff lost his job.

Plaintiff sued the City, aldermen, and Director of Personnel in federal district court, alleging that the aldermen’s opposition to his appointment was a violation of free speech.  The district court noted that while political patronage dismissals generally violate the First Amendment, the Elrod-Branti exception applied.  The exception states that for policy-making positions, “the government employer’s need for political allegiance… outweighs the employee’s freedom of expression.”  The court found the exception applicable as it applies to “patronage dismissal when one faction of a party replaces another faction of the same party.”

On review, the Seventh Circuit affirmed, agreeing that the Elrod-Branti exception was applicable because plaintiff’s role as Commissioner was a policy-making job.  The court noted that plaintiff’s job closely resembled other public work jobs that involved policymaking, as his duties included planning and overseeing construction of public ways, supervising department employees, and managing the budget.  The Seventh Circuit further noted that plaintiff failed to allege any particular speech that led to his non-appointment.  The court found that it was not enough to solely allege that he was fired based on his political allegiance to the mayor. 

This ruling is consistent with other rulings in the Seventh Circuit and other circuits so it is unlikely to be reversed if appealed.

Post Authored by Erin Baker, Ancel Glink.

Monday, December 3, 2012

Governor Quinn Signs New Law Moving Last Day for Petition Filing for April Elections to December 26th

Last week, we reported that Senate Bill 3338 was passed by both houses of the General Assembly.  Governor Quinn has now signed this bill into law.  Public Act 97-1134, effective immediately, amends Section 1-4 of the Election Code to specify that, for the 2013 consolidated election period, local election officials have until December 26th to accept candidates’ petitions or certificates of nomination.  Under this amendment, all local governments must accept candidate petitions until December 26, 2012 at 5:00 p.m.  Public bodies have no discretion to refuse to accept petitions on December 26th.  The deadline is extended for all Illinois units of local government.  We have received several questions related to this new law:

1.         If we already published notice that we are accepting petitions on Christmas Eve, can we just leave it as it is and not accept petitions on December 26th if we are closed that day?  No.  If your governmental body is open on December 24th, you may remain open.  However, this changes the last day for filing for everyone to December 26th.

2.         Can we have reduced hours on December 26th or do we have to be open all day?  The law does not require governments to be open all day but they are required to remain open until 5:00 p.m. on December 26th.  You must remain open for some period of time until 5:00 p.m.  If December 26th is a regular work day for your public body, you can be available during those hours, provided that you must remain open until 5:00 p.m.   If your public body is closed on December 26th, you must open for a reasonable amount of time to accept petitions, and you must be available until 5:00 p.m.  We believe it would be reasonable to be open from 3:00 p.m. to 5:00 p.m. It is important to provide advance notice of the hours you will be accepting filings. 

3.         Are we still required to be open on December 24th for any period of time?  No.  If your body is otherwise open, you can still accept petitions on the 24th just as you would accept them other days during the filing period.   

4.         How do we calculate the objection period since the New Year’s holiday falls in the middle of it?  Objections must be filed five business days after the last day for filing candidate petitions, which is now December 26th.   The Election Code specifies that a “business day” is any day that your public body’s office is open for at least 7 hours.  Because New Years Eve and New Years Day fall within the objection calculation period, it is possible that different local governments may have different deadlines for objections, depending on whether your public body is open for 7 hours on Christmas Eve.  School districts that are closed immediately after December 26th begin the calculation of the objection period when they return to school and their offices are open for at least 7 hours. 

Our advice to local election officials is to issue a press release specifying the location, dates and hours that petitions will be accepted, as well as posting a notice of this information where they usually post this information.  We recommend that you also publicize the last day for objections.    In addition, we strongly encourage local election officials to provide all known candidates who will be filing for the consolidated elections with actual notice of the change in the filing periods.  While none of these measures are required by the new law, we believe that greater dissemination of this information will result in less confusion to candidates. 

For additional information regarding this new law, please contact Keri-Lyn J. Krafthefer at 312-604-9126.

Salary Posting Must Identify Public Employees by Name

According to a recent advisory opinion issued by the Illinois Public Access Counselor, public bodies must identify public employees by name (and not by job title) when posting salary and compensation information required by Section 7.3(a) of the Open Meetings Act. 2012 PAC 19808.

As we reported on October 6, 2011, P.A. 97-0609 amended the OMA (effective January 1, 2012) to require IMRF employers to post the total compensation package for the following public employees: 

·     each employee receiving a total compensation package that exceeds $75,000 a year within six days after approving its budget.

·     each employee with a total compensation package equal to or in excess of $150,000, at least six days before an IMRF employer approves the package.

Because the statute does not expressly require public bodies to identity each employee by name, some public bodies have complied with the new law by identifying individual employees by job title or position rather than by name.  According to this recent PAC opinion, however, failure to identify employees by name is a violation of the OMA. 

The PAC acknowledged that the statute is silent as to whether employees must be identified by name.  The PAC took the legislative "silence" to mean the statute was ambiguous.  The PAC then looked to the legislative debates surrounding a completely different bill that dealt with pension "spiking."  In the debate of the pension legislation, legislators discussed the need to detect pension abuses of individual public employees. That debate led the PAC to read a new requirement into this OMA amendment to require a public body to post the salaries of individual employees, by name.

The opinion also noted that a public body cannot refer a requester to its website when a requester asks for an electronic form of a record.

This opinion is non-binding and applies only to the public body found in violation.  However, it is likely the PAC would render the same opinion in similar circumstances.

Post Authored by Julie Tappendorf, Ancel Glink.

Thursday, November 29, 2012

Ancel Glink Has A New Website!

As of 1:00 p.m. today (November 29, 2012), Ancel Glink's new and improved website went "live."  Features include updated attorney biographies with photos on the "Our People" page.  Detailed information about the firm's practice areas can be found at the "Practice Areas" page.  You can learn more about the firm and its history on the "About Us" page.  We also added a brand new feature called "Recent News" where we will report on events and activities of interest to our local government clients. Visitors will still be able to download for free the entire Ancel Glink Library, as well as other publications, presentations, white papers, and a variety of other materials in our expanded and user-friendly Resource Center. 

We invite you to check out our new website at http://ancelglink.com.

New Law Moves Last Day for Candidate Petition Filing to December 26th

Early this afternoon, Senate Bill 3338 was passed by both houses of the General Assembly.  When signed by Governor Quinn, this law, which becomes effective immediately, amends Section 1-4 of the Election Code to specify that, for the 2013 consolidated election period, local election officials have until December 26th to accept candidates’ petitions or certificates of nomination. This law will provide relief to municipal clerks, school board secretaries, township clerks, park district and library secretaries and other local election officials who were previously required to accept candidate petitions until 5:00 p.m. on Christmas Eve, regardless of whether their respective governmental offices were open or not.  Under this amendment, all local governments must accept candidate petitions until December 26, 2012 at 5:00 p.m.  The law does not require governments to be open all day on December 26, 2012, but they are required to remain open for at least some time period  until 5:00 p.m.  (for example, from 3:00 p.m to 5:00 p.m.).  Under this law, public bodies have no discretion to refuse to accept petitions on December 26th.  The deadline is extended for everyone. 

Our advice to local election officials is to issue a press release specifying the location, dates and hours that petitions will be accepted, as well as posting a notice of this information where they usually post this information.  In addition, we strongly encourage local election officials to provide all known candidates who will be filing for the consolidated elections with actual notice of the change in the filing periods.  While none of these measures are required by the new law, we believe that greater dissemination of this information will result in less confusion to candidates. 

The other impact of this new law is that it will extend the deadline for filing objections, which is now five business days from December 26th.  The last day for filing objections may vary for different public bodies depending on whether or not they are open for at least 7 hours on New Years Eve.  We suggest that you calculate the last day for filing objections with your public body and also widely publicize that date. 

For additional information regarding this new law, please contact Keri-Lyn J. Krafthefer at 312-604-9126.

UPDATED 12/3/2012 - Governor Quinn signed the bill as of 12/3/2012.

Upcoming Webinar - Greening Local Government

On December 19, 2012, Ancel Glink attorney Brent Denzin will be participating in a webinar sponsored by the American Bar Association titled "Greening Local Government."  The program will provide legal tools that local governments can use to:
  • Make government paperless
  • Encourage green buildings and energy codes
  • Mandate green transportation
Greening Local Government
Wednesday, December 19, 2012
12:00 PM - 1:30 PM Central (1:00 PM - 2:30 PM Eastern)


Brent Denzin, Ancel Glink
W. Andrew Gowder, Jr., Pratt-Thomas Walker
Howard F. Gross, E-Biz Docs
J. Cullen Howe, Arnold & Porter
Patricia E. Salkin, Touro College Law Center

You can learn more and register for the webinar on the ABA's website.

Tuesday, November 27, 2012

Facebook Page Not a Website Under the Open Meetings Act

An individual filed a request for review with the Illinois Public Access Counselor (PAC) claiming that a municipality violated his freedom of speech by deleting his comments from the municipality's Facebook page.   The request for review also claimed that the municipality's Facebook page was a "website" as defined by the Open Meetings Act and, therefore, the municipality was required to post meeting notices and agendas on the Facebook page in accordance with the OMA. In an opinion issued on October 31st, the PAC ruled in favor of the municipality, and found the individual's allegations unfounded. 2012 PAC 21667.

First, the PAC determined that the request for review did not provide a factual basis to support a violation of the OMA based on an alleged First Amendment violation.

Second, the PAC looked to the language of the OMA and found that it does not address a public body's use of a third party social media site such as Facebook. The PAC determined that there was nothing in the OMA to suggest that the legislature intended to extend the duty to post notices and agendas to websites that are neither under the control of, nor maintained by, the public body.  In any event, the PAC determined that the municipality operates its own website separate from its Facebook page where it does post copies of meeting agendas and minutes as required by the OMA.

Finally, the PAC concluded that the municipality uses its Facebook page to inform residents of upcoming meetings and events within the municipality.  According to the PAC, posting information on Facebook concerning meetings and events does not violate OMA.

Monday, November 26, 2012

U.S. Supreme Court Blocks Illinois Eavesdropping Law

This morning, the U.S. Supreme Court announced it would not hear the case from Illinois about the secret recording of police officers, leaving in place a lower court injunction against use of a state law to prohibit the practice.  Alvarez v. ACLU involved a lawsuit filed by the ACLU to block prosecution of ACLU staff from recording recorded police officers in the performance of their public duties.  By their refusal to hear the case, the Supreme Court effectively blocked enforcement of the Illinois eavesdropping law.

Post Authored by Julie Tappendorf, Ancel Glink.

City Did Not Discriminate Against Employee Based on Religion

A police records division employee filed a lawsuit against the City of Chicago claiming that the City discriminated against her on the basis of her religion and retaliated against her for engaging in protected activity.  The Seventh Circuit Court of Appeals ruled in favor of the City, finding no discrimination on the basis of religion. Porter v. City of Chicago (November 8, 2012).

The employee worked in the Chicago Police Department's records division, which operates 24 hours a day, seven days a week. Employees are assigned to 8-hour shifts, with assigned days-off.  When the employee was reassigned to a Friday/Saturday days-off group, she requested a reassignment to the Sunday/Monday days-off group because she was involved in her church and sang in the church choir. Her request was approved.  Five months later, she requested another change to her schedule to allow her to attend church classes on Saturday mornings, which was also approved.  

Shortly thereafter, she took FMLA leave and a medical leave of absence.  Upon her return to work, she was assigned to the Friday/Saturday days off group. She requested a reassignment to the Sunday/Monday group because of her church involvement but because of a shift imbalance, she was told she would have to wait until there was an opening in the Sunday/Monday days off group before she could be reassigned.  Alternatively, she was told she could change to the evening shift to accomodate her church activities. Instead, she stayed on her assigned shift and for the four-month period between the reassignment, was absent from work on 34 days, 16 of which were Sundays. She also filed grievances against the City, an EEOC charge, and finally a lawsuit against the City, claiming she was harassed and discriminated against because of her religion. 

The district court ruled that the City had reasonably accomodated Porter's religious practice and the Seventh Circuit agreed, ruling that a "reasonable accomodation" need not be the employee's preferred accomodation or the accomodation most benefical to the employee. Here, the City had suggested she switch to a later shift and also offered the next available opening in the Sunday/Monday days-off group. The Court determined that the shift change was a reasonable accomodation because it would eliminate the conflict between her work schedule and her religious practice on Sunday mornings. The fact that Porter did not want to work the later shift did not make the City's proposed accomodation unreasonable.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, November 20, 2012

Court Orders Inspection of Police Personnel Records

After he was convicted of first-degree murder and armed robbery, plaintiff alleged that two police officers coerced him into making his confession.  He then appealed his convictions and sought to use FOIA to compel disclosure of documents regarding past complaints of misconduct made against the two officers.  The Chicago Police Department denied plaintiff's request and argued that the documents were exempt because (1) disclosure would deprive the officers of a fair trial or an impartial hearing; (2) the documents contained opinions regarding officer discipline; (3) disclosure would constitute an unwarranted invasion of personal privacy by revealing the identity of persons who file complaints or provide information to law enforcement; and (4) the documents constitute personnel files and personal information of employees. 

The plaintiff filed suit against the City. The trial court ruled in favor of the City, finding that the documents were exempt from disclosure under various sections of FOIA.  The court further reasoned that disclosing the complaints of misconduct would taint the jury pool in advance of trial. 

On appeal to the Illinois appellate court, plaintiff argued that his dismissal should be reversed and remanded for an "in camera" inspection of the documents pursuant to Section 11(f) of FOIA.  An "in camera" inspection allows the judge to review the records in private rather than in open court.  Section 11(f) of FOIA provides that “the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act.”  Additionally, 11(f) states that the burden is on the public body to establish by clear and convincing evidence that it is exempt from disclosure. 

The appellate court reversed the trial court and remanded the case to conduct the "in camera" review of the documents.  Watkins v. McCarthy, 2012 IL App (1st) 10-0632 (November 5, 2012).  The court established the test for determining whether an "in camera" inspection is necessary.  If the public body meets its burden of proving that a particular statutory exemption applies through affidavits, then no inspection is required.  However, "if the public body's claims are conclusory, merely recite statutory standards, or are too vague or sweeping," then affidavits will not be enough to satisfy the public body's burden of proof.  In this case, the appellate court determined that the CPD failed to provide sufficient factual support that the requested records were exempt.

Post authored by Erin Baker, Ancel Glink.

Friday, November 16, 2012

Wastewater and Drinking Water Infrastructure - Increase in Available Revolving Loan Funds

On October 18, 2012, Governor Quinn announced a $1 billion investment into the State Revolving Fund (SRF) program, which funds wastewater and drinking water infrastructure projects. The SRF program has been very popular over recent years, leading to projects in over 350 communities. The popular loan program will now be dramatically expanded to assist current and future infrastructure projects across the State. To take advantage of this increased funding, local government clients should begin to compile the reports and application materials for future improvement projects.

For more information about the program and how you can take advantage of this opportunity, read Ancel Glink's client alert here.

Thursday, November 15, 2012

Reason #203 to be Careful What You Post on Facebook

Need another reason to be careful what you post on Facebook?  Check out a recent decision by the Sixth Circuit Court of Appeals in Jaszczyszyn v. Advantage Health Physician NetworkThis case involved an employee who was on intermittent FMLA leave for back pain resulting from a car accident several years earlier.  While out on leave, the employee attended a local festival, where she spent the day socializing (i.e., visiting three beer halls over an eight hour period) with friends.  Co-workers learned of her activities when they saw pictures on the employee's Facebook page and reported her to the employer.  After investigating the claims, and questioning the employee about her activities at the festival, the employer terminated her. She then sued the employer for FMLA interference and retaliation.  The court ruled in favor of the employer, finding that the employer had an "honest belief" the employee was engaging in fraud based on the Facebook pictures and her failure to provide a response to the employer's questions.

Thanks to Jeff Nowak who reported on this case in his blog FMLA Insights.  You can read his post at Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims.

Wednesday, November 14, 2012

The PAC Strikes Again, Ruling Against the Public Body in Binding Opinion 13 of 2012

Last week, the Illinois Public Access Counselor issued a binding opinion finding that a county board committee violated the Open Meetings Act when it held a closed session to discuss a landfill siting ordinance.  PAC Opinion 12-013.  The committee had relied on the “probable or imminent litigation” exemption to go into closed session based on a letter from the landfill siting company stating that the company “may be left with no alternative except to file suit” if the county failed to address its concerns with the ordinance.
Notwithstanding the threat of litigation in the letter, the PAC found that the committee had no reasonable basis to believe that litigation was imminent or more likely than not to be filed. The PAC also determined that the committee failed to disclose the required finding that litigation was probable or imminent and to record it in the minutes.  Moreover, the committee failed to record the closed session as required by the OMA.  The PAC further determined that the closed session discussions went beyond the “strategies, posture, theories, and consequences of the litigation itself” in discussing the ordinance and hosting agreement. 
Finally, the PAC determined that the committee violated the OMA by taking final action in closed session – in this case, by recommending approval of the ordinance and hosting agreement to the full county board. The PAC's finding was in direct conflict with the State’s Attorney’s opinion that the committee had not taken any formal action.  According to the State’s Attorney, the committee had chosen not to oppose the ordinance and agreement by informal consensus and did not take any action in closed session.
According to the PAC, an informal consensus of the committee not to do something (i.e., not oppose the ordinance and hosting agreement) constituted final action that must be voted on in open session.  
Post Authored by Julie Tappendorf, Ancel Glink

Monday, November 12, 2012

Supreme Court Schedules Argument in Takings Case

The U.S. Supreme Court scheduled oral arguments for January 15, 2013 in a case involving a property takings claim.   Koontz v. St. Johns River Water Management District.   This is one of the first takings cases that the Supreme Court has taken in quite some time so this case will be closely watched by local governments and property owners and advocates. 

In 1994, Koontz sought to develop land lying within a Riparian Habitat Protection Zone in Florida.  Because most of the property was wetlands, Koontz was required to obtain a permit from the St. Johns River Water Management District.  In order to mitigate the impact from the development, the District required Koontz to reduce the scale of his proposed development;  restore and enhance at least 50 acres of wetlands on a parcel 4.5 miles away; or perform similar off-site mitigation at a site seven miles away.  Koontz was also asked to perform on-site mitigation through a conservation easement or deed restriction on the rest of his property.  

Koontz rejected each of the District’s proposals and instead of providing a counteroffer to the District, filed a lawsuit.  Koontz is asking the Court to rule that the St. Johns River Water Management District is liable for a taking of real property requiring compensation after Koontz and the District could not agree on the mitigation measures.  The District claims that the Supreme Court has no jurisdiction because the plaintiff made only state law claims.  The District also claims that the plaintiff could have collaborated with the District to find a mitigation alternative but refused to do so.  The District argues that the takings analysis of Nollan and Dolan do not apply to the denial of Koontz's permit because no dedication of land was required and no damages were incurred.

Post Authored by Julie Tappendorf, Ancel Glink.

Thursday, November 8, 2012

County Not Liable for Delay in Rezoning

Plaintiff owned five properties in a mixed rural/suburban area in central Illinois.  Plaintiff lived on one of the five properties, while the other four parcels made up about 190 acres nearby.  The four properties were zoned agricultural, but Plaintiff wanted them rezoned as rural residential.   Plaintiff filed two zoning applications to have the parcels rezoned.  After both applications were rejected by the Tazewell County Board, Plaintiff sued the Board in state court.  The parties ultimately settled with an “Agreed Order” that the Board would rezone the four properties as rural residential. 

Following the “Agreed Order,” the Board rezoned neighboring properties, but continued to refuse to rezone Plaintiff’s four properties.  Eventually, the Board granted Plaintiff’s application to rezone the parcels in 2008.  However, by then, the real estate market was down and the properties had lost value and were no longer worth more zoned residential than they were when zoned agricultural. 

Plaintiff filed a Section 1983 action in federal district court, alleging that her “class of one” was denied equal protection and that the Board discriminated against her in favor of neighboring properties.  Plaintiff further alleged that after her lawsuit in state court, the Board denied her applications as payback.

The district court granted summary judgment in favor of the Board.  Upon appeal, the Seventh Circuit affirmed, finding that the Board did not discriminate against the Plaintiff.  Guth v. Tazewell County,  No. 11-3452 (October 17, 2012).  First, the Court found that Plaintiff’s application and the applications of neighboring properties were not comparable because the Plaintiff’s property was located in closer proximity to a hog farm, raising the potential for nuisance suits.  Second, the Court rejected Plaintiff’s retaliation claim as it was unable to determine whether the anti-zoning votes were motivated by retaliation, as some Board members did vote for rezoning and many who voted against rezoning did not indicate a reason.  Finally, the Court found that the loss of value in the property was related to the downturn in the housing market and not the Board’s actions.  Ultimately, the Court affirmed the lower court decision, holding that the protection of agriculture was a rational motive for voting against Plaintiff’s applications. 

Post Authored by Erin Baker, Ancel Glink.

Tuesday, November 6, 2012

Abortion Protesters Entitled to Award of Attorneys' Fees

According to the U.S. Supreme Court, a plaintiff was entitled to an award of attorneys' fees against Greenwood County.  Lefemine d/b/a Columbia Christians for Life v. Wideman, et al. (November 5, 2012).  Protesters filed suit against the county after they were ordered by police to discard pictures of aborted fetuses they carried to protest abortions.  The protesters prevailed in court, but their petition for attorneys' fees as a "prevailing party" under Section 1988 of the Civil Rights Act was denied, first by the district court and then by the 4th Circuit Court of Appeals. On appeal to the U.S. Supreme Court, the Court agreed with plaintiff that he was a prevailing party when he obtained an injunction against the county from preventing the protesters from carrying the signs at future demonstrations. 

Post Authored by Julie Tappendorf, Ancel Glink.

Monday, November 5, 2012

Ancel Glink Q&A of the Month - November 2012

Question:  Who is to take the minutes of public meetings?

Answer:  Although the Open Meetings Act requires that minutes be taken of all open and closed public meetings, along with video or audio recordings of closed meetings, there is almost nothing in state law that directs any particular person or officer in any governmental body to carry out this task. In most governments, the minutes are taken by the municipal clerk or deputy clerk, or the person chosen as the secretary. However, the members of the corporate authorities or subsidiary body can generally choose a recording secretary or some other person to take the minutes. 

Friday, November 2, 2012

9th Circuit Upholds Ordinance Protecting Mobile Home Residents

Our friends at Inversecondemnation reported on a recent Ninth Circuit decision upholding two ordinances designed to protect residents of local mobile home parks.  Laurel Park Community, LLC, et al. v. City of Tumwater, (October 29, 2012). Tumwater, Washington had ten mobile home (or manufactured home) parks within its boundaries. Residents of some of these parks expressed concerns to the Tumwater City Council that one or more of the parks were going to close. In response, the City Council adopted two ordinances.  The first amended the City's comprehensive plan and zoning map to create a new Manufactured Home Park zoning district.  The second rezoned six of the mobile home parks into the new zoning district. The ordinances identified mobile home parks and a few other uses as permitted uses, and allowed limited conditional uses. Other uses would be allowed only by "use exception" if certain criteria were established by the owner. The stated intent of the ordinances were to promote affordable, high density single-family residential development and to provide sufficient land for manufactured homes.

Owners of three of the rezoned parks sued the City, claiming that the ordinances violated their constitutional rights, including the Fifth Amendment and state "takings" clauses.  The Ninth Circuit analyzed the owners' claims under the Penn Central factors, finding that the first two factors of the Penn Central test favored the City, as follows:  (1) the minimal economic effect of the ordinances did not support a takings claim; and (2) the possibility of redeveloping the mobile home parks was speculative and did not support the owners' claim that the ordinances interfered with their "investment-backed expectations." The third factor (the character of the government action) did favor the owners by practically forcing them to continue to use their properties as mobile home parks, but was not enough to overcome the other two factors.  Consequently, the Court found no violation of the Fifth Amendment takings clause. Similarly, the Court determined that the ordinances did not violate the state constitution or the owners' substantive due process rights.  The Court also rejected the owners' argument that the ordinances were illegal "spot zoning."

Post Authored by Julie Tappendorf, Ancel Glink (with a thank you to Inversecondemnation!)

Thursday, November 1, 2012

Eight Circuit Reverses Course and Upholds Ordinance Regulating Protests Near Funerals

In response to the highly publicized anti-gay demonstrations at military funerals by members of the Westboro Baptist Church in Topeka, Kansas, the City of Manchester, Missouri passed a law to restrict protests around funerals.  The ordinance prohibits protests within 300 feet of a funeral site within an hour before or after the service.  Additionally, the ordinance imposes a fine up to $1,000 and three months imprisonment for violation.  Although Westboro had never held protests in Manchester, two Westboro members filed a lawsuit to challenge Manchester’s ordinance. The district court had ruled in favor of Westboro, finding that the court could only recognize a free speech exception outside residential homes.  Last year, a panel of the Eighth Circuit had affirmed the district court in a decision that we summarized in this post on November 3, 2011.  However, subsequent to that 2011 decision, the Eighth Circuit granted the City's petition for rehearing en banc and vacated the panel opinion.

On October 15, 2012, the Eighth Circuit reversed its earlier ruling, holding that a final version of the City ordinance was a legitimate time, place, and manner regulation consistent with the First Amendment.  Phelps-Roper v. City of Manchester, No. 10-3197 (8th Cir. 2012). This was the first decision of this nature to be decided since the U.S. Supreme Court upheld Westboro’s free speech rights in Snyder v. Phelps, 131 S.Ct. 1207 (2011).

The Eighth Circuit found that the ordinance in no way limited speakers or picketers, apart from a short time and narrow space buffer zone around a funeral.  The Court rejected Westboro’s assertion that the Court would essentially carve out a new exception to the broad right of free speech on public sidewalks by upholding the ordinance.  The Eighth Circuit was strongly persuaded by the City’s interest in protecting the peace and privacy of funerals for a short time and in a limited space.

This is a case to watch as it is likely Westboro will appeal to the Supreme Court.  Westboro is currently challenging several similar laws around the country. 

Post Authored by Erin Baker, Ancel Glink.