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Wednesday, March 28, 2012

Illinois Bill Would Ban Employer Requests For Facebook Passwords

It has become common practice for public and private employers to review the publicly available Facebook, Twitter and other social networking sites (Facebook, Twitter, and others) of job applicants as part of the vetting of candidates in the hiring process.  However, because many social media users have privacy settings that block the general public (or non-friends or followers) from viewing their complete profile, some employers are asking candidates to either turn over their passwords or log on to their social media accounts during the interview. 

Currently, there appears to be no federal or state law expressly prohibiting this practice.  The ACLU and others argue that this practice violates a candidate's right to privacy.  Others are taking the issue a step further and proposing legislation to prohibit this practice, including the Illinois General Assembly.  That legislation, HB 3782, would prohibit public employers from seeking job applicants' social media passwords.  The proposed legislation would allow candidates to file lawsuits if they are asked for access to sites like Facebook.  Employers could still ask for usernames to view public information. 

UPDATE:  3/30/2012:   On 3/29/12, the Illinois House passed the legislation by a vote of 78-30.
UPDATE:  8/1/2012:  Governor Quinn signed the legislation, which will become effective January 1, 2012.

Similar legislation has been introduced in Minnesota, Maryland and California

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, March 27, 2012

Court Rejects Constitutional Challenge to Red Light Cameras

Like many other Illinois municipalities, the Village of Schaumburg installed automated red light cameras to detect violations at various intersections within the community.  Fischetti was issued a ticket for running a red light in Schaumburg, and challenged the violation on a variety of grounds, including that the Village had no authority to adjudicate the violation through its administrative hearing process and that the Village had violated her statutory and constitutional rights and her right to trial by jury.  The circuit court found for the Village, holding that the Illinois red-light camera law expressly stated that violations could be administratively adjudicated.  The court also rejected her claim that she was entitled to a trial by jury, finding that the penalties were civil in nature, not criminal.

In Fischetti v. Village of Schaumburg, 2012 IL App (1st) 111008, decided March 23, 2012, the appellate court affirmed the trial court's decision rejecting Fischetti's challenge to the Village's red light camera regulations and process.  First, the court held that the Village had authority to use an administrative process for red light camera violations.  Although the court recognized that Section 1-2.1-1 of the Illinois Municipal Code exempts moving vehicle violations from the administrative adjudication process, language added to the Illinois Vehicle Code in 2006 created a civil, noncriminal penalty for red light camera violations and specifically provided for administrative adjudication for these violations.  The appellate court also found no due process violations where the Village notified Fischetti of the violation and offered her the opportunity to contest through mail or at a hearing.  Finally, the court determined that there is no right to jury where the offense is civil in nature, rather than criminal.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, March 22, 2012

U.S. Supreme Court Bolsters Landowner Rights when Contesting Agency Non-Compliance Letters

In Sackett v. EPA, decided on March 21, 2012, the U.S. Supreme Court held that private landowners may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the EPA's issuance of an  administrative compliance order under the Clean Water Act.  Administrative compliance orders are letters sent by the agency to landowners instructing them to correct alleged violations or face penalties up to $37,500 per day.  If the order is ignored and the EPA successfully prosecutes, a landowner could face increased fines ($75,000 per violation) due to the earlier warning.

Wednesday, March 21, 2012

Electric Aggregation - Post Referendum

A number of Illinois municipalities had a referendum on yesterday's ballot asking voters whether they are in favor of municipal electric aggregation.  The voters have spoken, and an overwhelming number of these referenda passed.  So, for those municipalities that had their referendum approved, the process is just beginning.  Before a municipality can go out to bid for electricity to serve their electric utility customers, the following steps must be taken:

Monday, March 19, 2012

City's Insurer Must Cover Malicious Prosecution Case

In 1989, Dominguez was arrested and in 1990 he was convicted of home invasion and sexual assault.   In 2002, he was exonerated by DNA.  He sued the City for malicious prosecution, wrongful arrest, and wrongful conviction.  From 1989 through 2002, the City had been covered by a variety of insurance policies, provided by a number of carriers.  None of the City's insurance companies would defend the case, however, all claiming that another company was responsible.  The City proceeded to defend the case on its own.  Dominquez was awarded about $9 million for malicious prosecution and concealment of exculpatory evidence.  The City subsequently filed a declaratory judgment action against the insurance companies. 

Thursday, March 15, 2012

IICLE Releases 2012 Edition of Municipal Law Library

The Illinois Institute for Continuing Legal Education (IICLE®) has just published three of the four volumes of the 2012 edition of the Illinois Municipal Law Library.  Ancel Glink partner Stewart Diamond is the general editor of the Municipal Law Library, and a number of Ancel Glink attorneys were contributing authors to various chapters. 

The Illinois Municipal Law Library is an invaluable resource for municipal attorneys and others who are interested in a user-friendly, comprehensive practice guide to municipal law.  The library consists of four volumes organized into the following categories: 

Volume 1:  Organization, Operation, and Governance
Volume 2:  Annexation, Zoning, and Regulatory Authority
Volume 3:  Financing, Tax, and Municipal Property
Volume 4:  Contracts, Litigation, and Home Rule

The first three volumes are available now for purchase, with the fourth volume coming out soon.

For more information about the handbook, you can download a copy of the brochure here.

Wednesday, March 14, 2012

Attorney General Releases Report for Sunshine Week

With Chicago experiencing summer-like temperatures this week, it seems appropriate to post a story about "Sunshine Week."  Sunshine Week was founded by the American Society of News Editors and is recognized every March.  In honor of Sunshine Week this year, Attorney General Lisa Madigan just released details of the more than 5,100 matters before the Public Access Counselor in 2011.  The office of the Public Access Counselor is responsible for responding to complaints filed by members of the public and media against public bodies concerning FOIA and Open Meetings Act disputes. 

A summary of the Attorney General's report is below: 

2011 Public Access Bureau Activities:
  • 5,164 total new matters received by the Public Access Bureau:
    • 4,485 of those matters were closed resulting in a closure rate of 87 percent.
  • 2,561 requests for PAC review from those who were denied records under FOIA:
    • 2,000 from members of the public,
    • 171 from the media, and
    • 390 from other entities.
  • 286 requests for PAC review regarding OMA violations:
    • 229 from members of the public,
    • 12 from the media,
    • 45 from other entities
  • 2,317 requests from public bodies for pre-authorization to deny records under a FOIA request. (Note: pre-authorization requests were eliminated on Aug. 26, 2011, by Public Act 97-579.)
  • 28,829 people registered with the Attorney General’s office for online training about the state’s Sunshine Laws.
You can obtain more information about the Public Access Counselor's activities on the Attorney General's website.

Monday, March 12, 2012

Interns and the FLSA

With the recent return of warm weather (at least in Chicago), it is time to start thinking about summer … and summer internships.  One question that comes up frequently with public employers with summer internship programs is whether wage and hour laws apply to their interns.  Specifically, we are asked whether “interns” must be paid at least the minimum wage and whether they must be paid overtime for hours over 40 in a week. The answer depends on whether the “interns” are considered “employees” under the wage and hour laws, including the Fair Labor Standards Act (FLSA), or are exempt under the “trainee” exception.

In order to qualify for the “trainee” exception to the “employee” definition, an individual must meet six rather strict requirements:

1.            The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school.

2.            The training is for the benefit of the trainees.

3.            The trainees do not displace regular employees, but work under their close observation.

4.            The employer that provides the training derives no immediate advantage from the activities of the trainees; and on occasion may actually be impeded.

5.            The trainees are not necessarily entitled to a job at the conclusion of the training period. 

6.            The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

Friday, March 9, 2012

New TIF Book Just Published by the ABA

The American Bar Association just released its newest publication, entitled About Tax Increment Financing.  The book provides a comprehensive look at the use of TIF's throughout the country.  The first chapter begins with an overview of tax increment financing fundamentals. Other chapters survey the experience of different states with tax increment financing, in connection with urban redevelopment projects.  Ancel Glink partner David Silverman is the author of the chapter titled "Illinois: TIF and the City of Chicago."  The book is edited by David Callies and W. Andrew Gowder Jr.

Included in the chapters describing various state experiences with TIFS are the following topics:
  • the income stream tapped for the tax increment;
  • the form of long-term project financing, usually in the form of bonds;
  • the need for urban redevelopment as part of the TIF package;
  • the presence or need for a plan; and
  • the presence or need for public participation.
To order a copy of the book, visit ABA's publication page.

Thursday, March 8, 2012

House Bill Would Restrict Eminent Domain by Local Governments

The U.S. House of Representatives has passed a bill, the Private Property Rights Protection Act of 2012, H.R. 1443, that would restrict the use of eminent domain where a state or local government receives federal aid.  The bill also allows for a private right of action for misuse of eminent domain.  The substance of the bill prohibits a state or local government from exercising its power of eminent domain “over property to be used for economic development or over property that is used for economic development within 7 years after that exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.”

A state or local government found in violation of this law would be ineligible for any federal economic development funds for two fiscal years “following a final judgment on the merits by a court of competent jurisdiction” of a violation.  “Economic development” is defined generally as “taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health,” but is subject to several exclusions or exceptions (brownfields, takings for public utilities, roadways, and others as listed).  Section 4 of the bill outlines a private cause of action by any owner or tenant of private property whose property is subject to eminent domain and who suffers injury as a result of a violation of any provision of the bill with respect to that property.

Judiciary Committee Ranking Member John Conyers (D-Mich.) was reportedly the only member to speak against the bill, noting that seven years have passed since the Supreme Court’s Kelo decision, and that many states have since addressed eminent domain in their legislation:  “Congress should not now come charging in after seven years of work and presume to sit as a national zoning board, advocating to our national government the right to decide which states have gotten the balance right, and deciding which project are or are not appropriate.”

A summary of this legislation is published in the IMLA News, Issue No. 04, March 07, 2012
Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, March 7, 2012

Don't Miss These Upcoming IMLA Teleconferences

The Illinois Municipal Lawyers Association has organized a busy month of teleconferences to provide information on current municipal legal issues (described below).  For more information and to sign up for one or more of these conferences, visit IMLA's website.

March 12 - Land Use:  Really Truly, the Ugliest and Most Obnoxious Uses — You have them but you don't want them: massage parlors, payday loan shops, tattoo parlors, medical marijuana dispensaries, hookah lounges, backyard chicken coops, student housing, fortune tellers, and more. Hear from a widely-published author on what is going on with local regulation and in the courts to control these bothersome uses. Guest speaker Amy Lavine is a staff attorney at the Government Law Center of Albany Law School. She was a cum laude graduate of Albany Law, and during her time at the law school, she was a member of the Albany Law Journal of Science and Technology. She has authored and coauthored several articles on land use, local government and eminent domain, in publications such as the New York State Bar Association Government, Law and Policy Journal and The Urban Lawyer. She also received a Certificate of European and International Legal Studies from the University of Paris X in Nanterre, France.

March 14 - Telecom: Cell Tower Leases, Extensions and Buyouts: Protecting Your Municipality While Maximizing Revenues.

March 21 - Personnel: To Muzzle and Not to Muzzle, That is the Question: Recent Developments Involving Public Officials and Employee Speech.

Monday, March 5, 2012

Is an Elected Official an Employee?

An IRS investigator recently walked into the clerk's office of a village of 800 people and demanded to see the U.S. Citizenship and Immigration Service ("Immigration Service") I-9 form on file for the village president and trustees. 
The clerk knew that I-9 forms are required for municipal employees, to document that each employee is authorized to work in the United States.  8 C.F.R. §274a.2  But the regulations and the instructions for completing Form I-9 all refer to "employers" as those who are required to submit the form for people who are "hired."  The clerk wondered whether the president and trustees, as elected officials, are employees of the village.  And if they are, what are the implications in contexts other than Immigration Service "authorized to work" regulations?  As it turns out, the answer to both questions is, "It depends." 

Friday, March 2, 2012

Reminder - Zoning Map Must be Published by March 31st

The Illinois Municipal Code requires the corporate authorities of a municipality to publish the municipality's zoning map on an annual basis, no later than March 31st.  65 ILCS 5/11-13-19 (reprinted below).  The published zoning map should include all zoning changes from the preceding year.  If there were no changes to the zoning map in the preceding year, then publication is not required.  While the statute does not specify the method for publication of the zoning map, many municipalities adopt the annual zoning map by ordinance or resolution at a village board or city council meeting in March of each year. The statute is as follows:

Thursday, March 1, 2012

Fire Protection District Can Require Direct Connection for Alarm Monitoring

This week, the Seventh Circuit Court of Appeals issued an opinion in a case involving a lawsuit brought by private alarm companies challenging a fire protection district’s “direct connection” requirement. ADT Security Services, Inc. v. Lisle-Woodridge Fire Protection District.  In 2009, the district had enacted an ordinance requiring all commercial and multiple family residential buildings to have fire alarms connected to the district’s central monitoring board through wireless technology.  The ordinance also provided that the district would only contract with one alarm company to provide and service signaling equipment. 

The private alarm companies sued the district, claiming that the ordinance would displace private alarm companies and invalidate existing contracts with customers.  The district court previously held that the district had engaged in illegal conduct by invalidating contracts between private alarm companies and their customers and requiring customers to contract only with the district.  The Seventh Circuit held, however, that the district did have statutory authority to require direct connections to the district’s monitoring board through wireless technology.  But, that authority was not so broad as to authorize the district to establish a monopoly over alarm transmitters and monitoring services.  Consequently, the district could not require all customers to buy alarm signaling services and equipment solely from the district or just one private alarm company.