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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

Monday, April 30, 2012

Ancel Glink Municipal Question of the Month

Question:  What happens if a news media outlet has been sent a notice of a meeting but that notice was not received?

Answer: The Opens Meetings Act states that the failure of any news media to receive a notice that was in fact provided in accordance with the Open Meetings Act does not invalidate the meeting. A little known section of the Open Meetings Act requires any news media to give the public body an address or phone number within the territorial jurisdiction of the public body at which this notice may be given.

Friday, April 27, 2012

"Disorderly House" Statute Not Unconstitutionally Vague

The Nasty Habit Saloon (based on the facts of the case, probably a bad choice of a bar name...) was a popular bar in Eau Claire, Wisconsin, before its liquor license was revoked by the City after a series of fights between employees and the bar's customers.  The City claimed it was authorized to revoke the license on a state statute that authorizes suspension or revocation of a liquor license if the licensee "keeps or maintains a disorderly or riotous, indecent or improper house."  In its revocation decision, the City cited eight separate incidents at the bar involving fights between employees and customers that required police intervention.  The bar owner sued the City, alleging retaliation, denial of equal protection, and due process violations.  The district court ruled in favor of the City, and the bar owner appealed to the Seventh Circuit Court of Appeals.  Hegwood v. City of Eau Claire, No. 11-1999 (7th Circuit, April 9, 2012).

On appeal, the Court determined that the statute was not unconstitutionally vague either on its face or as applied to the bar owner.

Tuesday, April 24, 2012

7th Circuit Upholds Elimination of Village Position

In Benedix v. Village of Hanover Park, No. 11-1096 (April 17, 2012), the Seventh Circuit affirmed the lower court's dismissal of a lawsuit brought by a former Village employee whose position was eliminated as part of the Village's restructuring plan.  The employee claimed that she was improperly fired because of her association with the dismissed Village Manager.  The lower court had previously dismissed the complaint against the Village based on legislative immunity because the restructuring plan was adopted by an ordinance.  Although the Seventh Circuit determined that legislative immunity did not apply to the Village as a defendant, the Court upheld the dismissal on other grounds.  Specifically, the Court determined that as the Executive Coordinator to the Village Manager, Plaintiff was properly classified as a confidential employee who could be hired and fired on account of politics, or in this case, friendship. 

Post Authored by Julie Tappendorf, Ancel Glink.

Friday, April 20, 2012

Maryland Passes Social Media Password Law

Until recently, there was no federal or state law expressly prohibiting an employer from requesting or requiring a job candidate to turn over their social media password or logon information.  As reported previously on this blog, a few states have proposed legislation, including Illinois,  Minnesota, and California.

Just last week, Maryland became the first state to pass a law on the practice.  Two identical bills, S.B. 433 and H.B. 964, were passed by the state legislature, and have been forwarded to the Governor to sign the legislation into law. Under this new law, employers are prohibited from requiring employees and job applicants to “disclose any user name, password, or other means for accessing a personal account or service” electronically.  Employers are also prohibited from refusing to hire an applicant for not providing access to this information.  Similarly, employers are not permitted to terminate or discipline an employee for refusing to provide this information. The law takes effect October 1, 2012.

In addition to protecting the privacy of current and prospective employees, the Maryland law also provides employers with some protections.  For example, employees are prohibited from downloading “unauthorized employer proprietary information or financial data” to personal accounts or to websites, and the law allows employers to investigate these activities to ensure “compliance with applicable securities or financial law or regulatory requirements.”   Additionally, employers are permitted to require employees to provide passwords and login information for non-personal accounts that are part of the employer’s own systems, such as company e-mail accounts.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, April 17, 2012

Update on OMA Amendment (House Bill 4687)

In a previous blog post, I raised concerns with HB 4687.  That bill would add a new requirement to the Open Meetings Act that agenda items be "sufficiently descriptive" before they can be considered or the subject of final action.   My concerns focused on two issues:  (1) the “sufficiently descriptive” requirement was too vague and (2) the requirement that matters be listed on an agenda before they could be "considered" was inconsistent with controlling appellate court decisions and other language in the OMA that allows public bodies to consider (i.e., discuss or deliberate on) matters that are not listed on the agenda. 

Friday, April 13, 2012

Ethics of Social Networking Webinar

On April 26, 2012, Ancel Glink attorney Dan Bolin will participate in a social media webinar sponsored by the American Bar Association.  The panel will discuss the impact of social networking and the resulting ethical issues it presents for municipalities, elected officials, and government lawyers.  Sign up here:  ABA-CLE | Ethics of Social Networking

Can an Employer Ask for Facebook Passwords?

In an article published in the Washington Post on April 9, 2012, Ancel Glink attorneys Margaret Kostopulos and David Lefkow discuss the legal implications of asking employees and candidates for social media login information.  With respect to job candidates, the practice is probably legal. Because an applicant can decide not to apply for a particular job, it is neither an invasion of privacy nor a violation of constitutional rights to ask for this information during the hiring process. And if applicants refuse to provide the requested information, employers are free to drop their consideration for hire.  As discussed in this blog previously, this may change as some state legislatures (including Illinois) consider legislation to ban this practice.

This legal analysis may not extend to current employees because their rights are generally greater than those of candidates for employment.  Unless there is an actual need to review an existing employee’s social media profile, it may be difficult to find a connection between social media usage and the employee’s right to hold their job. 

The article also contains a few tips to help employers implement controls in the social media review process:

·    The request for login information should be stated on the application and/or explained at the outset.
·    Employers should closely consider the purpose in reviewing social media information of applicants.
·    The rule should be uniform and fair. To prevent the appearance of bias, employers who elect to monitor social media profiles should uniformly check everyone’s profiles. They should also create a checklist to help streamline the review protocol.

Thursday, April 12, 2012

APA Planning & Law Division Spring Newsletter Released

The Planning & Law Division of the American Planning Association (APA) just released their Spring 2012 newsletter.  This edition is packed with information that is both timely and relevant to local government and land use planners, lawyers, and officials.  Jennie Nolan is the editor of the newsletter editor, with assistance from student editorial board members Steven Gavin and Edward Teyber, and editorial advisory board members Patty Salkin and Ancel Glink attorney David Silverman.

Below is a very brief summary of some of the articles you will find in the newsletter.  You can also access the full newsletter here.  Also, if you aren't already a member of the PLD division of the APA, you should join ASAP!

Tuesday, April 10, 2012

Public Body Violated OMA by Meeting in Private Home

As I noted in yesterday's post about the 2012 PAC opinions to-date, the PAC recently issued a binding opinion in response to an Open Meetings Act complaint. 

PAC Opinion 12-008 (Open Meetings Act)

On December 21, 2011, a school district board conducted a special meeting at the private home of the school superintendent to consider the annual tax levy.  Notice of the meeting and its location were posted on the district's website, at the district's office, and at the middle school where the district's meetings were usually held.  The superintendent stated that the meeting was held at the private residence because the custodians had worked during the day and the school building would be closed that evening.  The superintendent also noted that the meeting was open to the public.  At the meeting, the district board adopted the annual tax levy.  A complaint was subsequently filed with the PAC challenging the meeting and the legality of the tax levy. 

Monday, April 9, 2012

PAC Binding Opinions of 2012 in Review (To-Date) - FOIA

Last December, I reported on all of the 2010 and 2011 binding opinions issued by the Public Access Counselor of the Office of the Illinois Attorney General in response to requests for review submitted by members of the public.  In those two years, the PAC issued 11 binding opinions  -- four in 2010 and seven in 2011 and all involving FOIA appeals.  In just the first three and a half months of 2012, the PAC has already issued eight opinions.  Seven of the opinions are FOIA-related and one involves an Open Meetings Act issue (which will be reported on tomorrow).

As in 2010 and 2011, the PAC ruled against the public body in each of the 2012 opinions.  The 2012 FOIA opinions follow:

Friday, April 6, 2012

Illinois Supreme Court Allows Assault Weapon Ban Lawsuit to Proceed

In 2006, Cook County adopted the Blair Holt Assault Weapons Ban that prohibits assault weapons as well as large capacity magazines with the capacity to accept more than 10 rounds of ammunition.  Plaintiffs sued the County, claiming that the Ordinance was unconsitutional on a number of grounds.  Plaintiffs allege that the Ordinance is vague, violates their second amendment right to bear arms, and violates the equal protection clause of the United States Constitution.  The circuit court granted the County's motion to dismiss the lawsuit. The appellate court affirmed, ruling that that the U.S. Supreme Court’s holding in District of Columbia v. Heller, 554 U.S. 570 (2008), did not provide a fundamental right to bear arms applicable to the states and, therefore, the right to bear arms was subject to the police power of the state.

The case was then filed a petition for leave to appeal to the Illinois Supreme Court.  While that petition was pending, the U.S. Supreme Court filed its decision in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), which held that the second amendment applies to the states through the due process clause of the fourteenth amendment.  The Illinois Supreme Court sent the case back to the appellate court for review in light of McDonald. The appellate court upheld the dismissal of the lawsuit, holding that the second amendment right does not extend to assault weapons and that the County ban on assault weapons was substantially related to an important governmental interest. 

The case was again appealed to the Illinois Supreme Court, which issued its ruling on April 5, 2012, in Wilson v. County of CookThe Supreme Court's ruling can be summarized as follows:

Tuesday, April 3, 2012

Prevailing Wage Act Amendments Pass Senate

Illinois Senate Bill 2643 would amend the Prevailing Wage Act in a manner that could increase the cost of construction projects for local governments.  According to the legislative summary, it:
  • Defines "responsible bidder" as individuals or firms meeting specified requirements of the Illinois Procurement Code.
  • Provides that a public body must require each contractor and subcontractor to be a responsible bidder.
  • Requires bids to include the total number of straight-time hours, identified as either "journeyperson" or "apprentice," for each craft or type of worker or mechanic needed to execute the contract.
The proposed legislation incorporates many of the same provisions included in the "responsible bidder" ordinances supported by unions over the past several years.  The legislation appears to be designed to reduce competition and increase the use of union businesses.  As currently drafted, it reduces the local government's discretion and could result in increased costs for public projects.  This bill has passed the Senate and is now under consideration by the House.

Post Authored by Adam Simon, Ancel Glink

Monday, April 2, 2012

Insurance Companies Not Responsible for Defending Well Contamination Lawsuits Against Crestwood

In 2009, the Chicago Tribune published a series of stories that the Village of Crestwood knowingly provided its residents with well water that was contaminated with perc (PCE perchloroethylene, also known as tetrachloroethylene), a solvent widely used in dry cleaning.  Shortly after the stories were published, residents sued the Village, alleging that Village officials knew about the contamination since at least 1986, yet continued to pump water from wells and distribute it to residents until 2007.  The Village sent the lawsuits to their insurance companies to defend, but the insurance companies denied coverage based on a policy exemption for personal injury or damages resulting from pollutants (the pollution exemption).  The insurance companies then filed a lawsuit in federal court seek a declaratory judgment that they had no duty either to defend the cases or to indemnify the Village.  The district court ruled in favor of the insurance companies, finding that the lawsuits triggered the pollution exclusion.

On appeal, the Seventh Circuit Court of Appeals affirmed the decision in favor of the insurance companies.  Scottsdale Indemnity, et al. v. Village of Crestwood.  The Court determined that even though the Village did not introduce the contaminant into the water supply, it "caused" the contamination when it discovered that the well was contaminated 25 years ago and yet failed to seal the well.   

Post Authored by Julie Tappendorf, Ancel Glink.