November 2012 ~ Municipal Minute

Thursday, November 29, 2012

Ancel Glink Has A New Website!

Thursday, November 29, 2012 Julie Tappendorf

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

Thursday, November 29, 2012 Julie Tappendorf

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 26^th 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 26^th. 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 26^th. 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.

Elections / Ethics

Upcoming Webinar - Greening Local Government

Thursday, November 29, 2012 Julie Tappendorf

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)

Presenters:

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

Tuesday, November 27, 2012 Julie Tappendorf

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.

Open Meetings / Social Media

Monday, November 26, 2012

U.S. Supreme Court Blocks Illinois Eavesdropping Law

Monday, November 26, 2012 Julie Tappendorf

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.

Constitutional Issues

City Did Not Discriminate Against Employee Based on Religion

Monday, November 26, 2012 Julie Tappendorf

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

Tuesday, November 20, 2012 Julie Tappendorf

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 (1^st) 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.

Freedom of Information

Friday, November 16, 2012

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

Friday, November 16, 2012 Julie Tappendorf

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.

Economic Development / Land Use and Environmental

Thursday, November 15, 2012

Reason #203 to be Careful What You Post on Facebook

Thursday, November 15, 2012 Julie Tappendorf

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 Network. This 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.

Personnel / Social Media

Wednesday, November 14, 2012

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

Wednesday, November 14, 2012 Julie Tappendorf

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

Monday, November 12, 2012 Julie Tappendorf

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.

Constitutional Issues / Land Use and Environmental

Thursday, November 8, 2012

County Not Liable for Delay in Rezoning

Thursday, November 08, 2012 Julie Tappendorf

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.

Constitutional Issues / Land Use and Environmental

Tuesday, November 6, 2012

Abortion Protesters Entitled to Award of Attorneys' Fees

Tuesday, November 06, 2012 Julie Tappendorf

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.

Constitutional Issues

Monday, November 5, 2012

Ancel Glink Q&A of the Month - November 2012

Monday, November 05, 2012 Julie Tappendorf

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.

Open Meetings / Personnel

Friday, November 2, 2012

9th Circuit Upholds Ordinance Protecting Mobile Home Residents

Friday, November 02, 2012 Julie Tappendorf

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!)

Constitutional Issues / Land Use and Environmental

Thursday, November 1, 2012

Eight Circuit Reverses Course and Upholds Ordinance Regulating Protests Near Funerals

Thursday, November 01, 2012 Julie Tappendorf

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 (8^th 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.

Constitutional Issues

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