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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

Thursday, February 28, 2013

Bills Would Define Catastrophic Injury in PSEBA

The Illinois Public Safety Employee Benefits Act provides that employers must pay the entire health insurance premium for public safety employees who suffer “catastrophic” injuries in the line of duty.  This benefit includes coverage for the employee’s spouse and dependent children as well.  This is a very costly benefit as it covers the injured employee and his or her spouse for life.  Dependent children are covered to the age of 25 if the child continues to be dependent for support or is a full time or part-time student and remains dependent for support. 
In the Krohe v. City of Bloomington case, the Illinois Supreme Court determined that the Illinois legislature failed to define “catastrophic injury.”  The Court held that a “catastrophically injured” firefighter is one who “due to injuries, had been forced to take a line-of-duty disability under 4-110 of the Illinois Pension Code.”  This definition does not appear to be consistent with the legislature’s original intent as it allows for employees who can no longer work as public safety employees but can still work at other jobs to obtain permanent PSEBA benefits. 
Two bills were recently introduced in the General Assembly to attempt to resolve this issue.  House Bill 2224 would define a “catastrophic injury” as “a grievous or serious injury or impairment of a nature that is sufficient to permanently preclude the injured employee from performing any gainful work." Senate Bill 1245 would define a "catastrophic injury" as one in which the “consequences of an injury that permanently prevent an individual from performing any gainful work.”  The enactment of either bill would be a substantial change as it would mean that a police officer or firefighter who could no longer perform the essential functions of their public safety position but can still be employed in some other capacity would not be entitled to PSEBA benefits.
PSEBA benefits are very costly and should be reserved for those who are truly in need of them.  A new definition of the term “catastrophic injury” would help to ensure that only those public safety employees who are truly in need of PSEBA benefits would receive them.
Post Authored by Bob McCabe, Ancel Glink

Wednesday, February 27, 2013

Candidates Substantially Complied with Notary Requirement

Candidates for public office are more and more frequently finding that they must defend against challenges to their candidacy.  The Illinois Election Code requires candidates to follow very specific rules in filing their nomination papers for candidacy as well as making sure the candidates are eligible for public office.  Some of these rules and eligibility requirements must be strictly followed.  Other rules and eligibility requirements may be subject to a "substantial compliance" standard.  In a recent First District Appellate Court decision, the court analyzed two such requirements. Cortez, et al. v. Municipal Officers Electoral Board for the City of Calumet City, 2013 IL App (1st) 130442.
Objections were filed against nine candidates for office in Calumet City.  The Municipal Officers Electoral Board conducted the statutorily required hearing on the objections and ruled that all nine candidates should be removed from the ballot.  The circuit court reversed the Electoral Board, and the Board appealed. 
The Electoral Board had removed the nine candidate from the ballot based on a failure to strictly comply with the notary requirement of Section 7-10 of the Election Code.  The Board had determined that the specific notary language on the candidates' statements of candidacy failed to include the phrase "who is to me personally known" as set out in Section 7-10. The appellate court acknowledged that the candidates used the "short form" notarization language rather than the long form set out in Section 7-10.  However, Section 7-10 specifically states that the statement of candidacy has to be only "in substantially the following form."  In the appellate court's opinion, the candidates substantially complied with this requirement and removal from the ballot would be to drastic of a remedy for failure to strictly comply with the statutory language.  The court did issue a cautionary statement to candidates for office that they should follow the recommended directions of the elections statute.
With respect to one of the nine candidates, the Electoral Board had also based its decision to remove that candidate from the ballot for failure to file the correct statement of economic interest.  The candidate had filed a form for candidates for statewide office rather than the form for local candidates. The court determined that because the statewide form did not include certain questions relating to business with the local government, the candidate did not comply with this particular statutory requirement for candidacy for local office.  The court determined that filling out the wrong form did not constitute substantial compliance, and the Board's decision to remove the candidate from the ballot was correct.
Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, February 19, 2013

The Risky Business of Social Media

The American Bar Association recently published an excerpt from the book "Social Media and Local Governments: Navigating the New Public Square" that Patty Salkin and I co-wrote.  You can check out the article on the ABA's website at The Risky Business of Social Media | Section of State and Local Government Law.

Monday, February 18, 2013

Sign Ordinance Violates Eminent Domain Act

The Village of North Pekin filed suit against the owner of three billboard signs the city claims were in violation of a 1972 ordinance prohibiting placement of signs within a certain zone.  The Third District Court of Appeals affirmed the trial court’s ruling that the ordinance was invalid because it was contrary to the Eminent Domain Act. Village of North Pekin v. Adams Outdoor Advertising.

North Pekin adopted an ordinance establishing that billboards could not be erected within a particular zone but provided a grace period to owners of nonconforming signs that entered into leases before May 1972, the date the law went into effect.  The sign owners could keep their signs until June 1, 1972 or until their leases expired.  The three signs at issue were not removed after the grace period ended.  The sign owner entered into three separate leases not due to expire until December 2004 through 2005. 

In 2004, the village sent notice to the sign owner that it would not re-issue annual license permits because the leases had expired and did not comply with the ordinance. They also set a deadline to remove the signs by April 2004 or face fines.  The sign owner filed suit claiming North Pekin’s ordinance was invalid because it denied compensation for owners of condemned signs, contrary to the provisions of the Eminent Domain Act.  Under that statute, owners of lawfully erected outdoor advertising have a right to just compensation if mandated to remove their signs by a municipal or local government ordinance.  The trial court agreed, holding that the ordinance provided amortization as the only remedy to the defendants. 

On appeal, the village argued the sign owner was precluded from compensation because the owner had no claim to the signs since their leases expired before the village sent notice for removal.  The Appellate Court, however, found that the sign owner held valid, unexpired leases for all three signs.  Thus, the court held that the ordinance violated the Eminent Domain Act by allowing the village to take ownership of the billboards without providing just compensation.

The court’s ruling was filed under Supreme Court Rule 23.

Post Authored by Julie Tappendorf and Joy Austria, Ancel Glink.

Friday, February 15, 2013

Crime-Free Housing Bill Introduced in Illinois Legislature

On January 24th Senator Thomas Cullerton introduced the County Municipal-Crime Free Housing Bill (SB1155) in the Illinois Senate.  The bill seeks to amend both the Counties Code and the Illinois Municipal Code to authorize the adoption of crime-free housing ordinances for the purpose of reducing crime, such as gang-related activity or drug trafficking, in residential areas.

The bill applies to both apartment buildings and mobile home parks, but not to state or federally licensed facilities.  While the bill allows every municipality to draft their own version of the ordinance, it also makes suggestions for potential provisions.  For instance, under the new law, property owners who want to rent out crime-free residences must attend crime prevention training programs and submit to a public safety inspection before obtaining a valid residential license.  Leases would be required to include a provision prohibiting tenants, tenants’ family members, or guests from “engaging in, facilitating, or permitting any quasi-criminal or criminal activity.”  Tenants in violation of that provision would immediately trigger eviction proceedings.  Additionally, tenants would be subject to a criminal background check as part of the application process or renewal agreement.  Leases could not waive or modify any provisions of a crime-free ordinance that were enacted under the bill.  Finally, property owners would be required to submit to periodic inspections to make sure residences are in compliance with the crime-free ordinances laws.

SB 1155 is currently under consideration by the Local Government subcommittee.
Post Authored by Julie Tappendorf and Joy Austria, Ancel Glink

Thursday, February 14, 2013

Can Access to Public Records be Limited to Residents?

The U.S. Supreme Court will consider that question on February 20, 2013, when it hears oral argument in McBurney v. Young. That case involves an appeal of a decision by the 4th Circuit Court of Appeals that upheld the constitutionality of a "citizens-only" provision in Virginia's FOIA law.  That provision provides, in relevant part, as follows:
"Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth."
McBurney, one of the plaintiffs, was a citizen of Rhode Island with ties to his former residence of Virginia through divorce, child custody, and child support decrees. He filed a FOIA request for public records from the Virginia Division of Child Support Enforcement (DCSE) seeking a variety of documents relating to him, his son, and his ex-wife, and other documents. The DCSE denied his FOIA request on the grounds that the information was confidential under exemptions to FOIA and because McBurney was not a citizen of Virginia.
McBurney and another plaintiff who was also denied access filed a lawsuit against DCSE, alleging that the citizens-only provision of the Virginia FOIA statute impermissibily discriminated against them by denying them access to public records solely because they are not Virginia citizens. The plaintiffs alleged violations of the Privileges and Immunities Clause, asserting that the statute impermissibly denied them the "right to participate in Virginia's governmental and political processes" by barring them "from obtaining information from Virginia's government."  They also claimed that the citizens-only provision violated the dormant Commerce Clause because it grants Virginia citizens an exclusive right of access to Virginia's public records and bars non-citizens from pursuing any business stemming from Virginia public records on substantially equal terms with Virginia citizens. 
The district court ruled in favor of the DCSE, finding no infringement of any rights under the Privileges and Immunities Clause or the dormant Commerce Clause, and on appeal, the 4th Circuit Court of Appeals affirmed. The 4th Circuit first determined that the Supreme Court recognizes that states are permitted to distinguish between residents and nonresidents so long as those distinctions do not violate any fundamental rights under the Privileges and Immunities Clause of the U.S. Constitution.  The 4th Circuit held that access to a state's records does not implicate any fundamental right under the Privileges and Immunities Clause. With respect to the dormant Commerce Clause claim, the Court held that the citizens-only provision of the FOIA statute it prevents Hurlbert from using his "chosen way of doing business," but it does not prevent him from engaging in business in the Commonwealth.
The International Municipal Lawyers Association (IMLA), the International City/County Management Association (ICMA), and other groups filed amicus briefs in support of the 4th Circuit decision upholding the citizens-only provision of FOIA.
We will follow-up on this case as it moves forward with the U.S. Supreme Court.

Tuesday, February 12, 2013

U.S. Social Media Privacy Law Reintroduced

Last year, Congress introduced the Social Networking Online Protection Act (SNOPA), which would prohibit employers from asking for Facebook and other social media passwords of applicants, employees, and students.  The proposed legislation died at the end of the 2012 session.  Since then, at least six states, including California, Delaware, Illinois, Maryland, Michigan and New Jersey, all passed statewide bills making this practice illegal.  More than a dozen other states have introduced similar legislation since Congress first introduced SNOPA. 
Last week, SNOPA was reintroduced by Representatives Eliot Engel and Michael Grimm from New York and Jan Schakowsky from Illinois.  The bill would ban employers and schools from being able to request or require that employees, job applicants, students, or student applicants provide a user name, password, or other means for accessing a personal account on any social networking website such as Facebook or Twitter. The legislation would also protect email and any other personal user generated content.
Post Authored by Julie Tappendorf, Ancel Glink

Monday, February 11, 2013

Cellular Antennas Did Not Violate Village Ordinances

Neighbors filed a lawsuit against a cellular provider and a municipality claiming that the relocation of antennas on the Village's water tower violated Village ordinances.  The Second District Appellate Court upheld the trial court's ruling in favor of the Village and cellular provider, finding that the antennas did not violate any Village ordinance and there was no violation that would authorize an award of attorneys fees under the Adjoining Landowner Act or fines under Village ordinances. Ruissard v. Village of Glen Ellyn, 2013 IL App (2d) 120480-U (February 6, 2013).
The lawsuit was brought in 2008, after the Village approved a special use permit to allow the cellular provider to install cellular antennas on the Village's water tower. The plaintiffs claimed that the Village and cellular provider violated the Village Code and the special use permit ordinance when certain public safety equipment was relocated to allow the installation of the cellular antennas.  The appellate court had previously affirmed the dismissal of 3 of the 6 counts in the amended complaint, and remanded 3 other counts to the trial court.  After the initial apellate court decision and before trial, the Village approved a special use permit to allow the public safety antennas to exceed the 140-foot height restriction.  Following a bench trial, the trial court ruled against the plaintiffs on the remaining 3 counts of the amended complaint, which decision was appealed to the Second District.
On appeal, the plaintiffs argued first that the special use permit did not "moot" the ordinance violation because the defendants violated the ordinance by failing to obtain the special use permit prior to installing the antennas on the tower.  The plaintiffs argued that even if the special use ordinance did moot the violation, they were still entitled to attorney fees under Section 11-13-15 of the Illinois Municipal Code (the Adjoining Landowner Act) because all they needed to show was that the defendants were engaged in prohibited activity of violating an ordinance. The appellate court first ruled that there was no violation of Village ordinances because the subsequent approval of the special use permit mooted any alleged violation.  Second, the court denied the plaintiffs attorneys fees under Section 11-13-15, finding that the defendants were not in violation of Village ordinance because (1) the Village Code does not contain a height limitation for antennas and (2) the height restriction applied to antenna structures, not individual antennas. The court agreed with the defendants that in order to obtain attorneys fees under the Adjoining Landowner Act, the trial court must make a finding that defendants engaged in some prohibited activity.  In this case, plaintiffs did not present evidence establishing a violation, so they were not entitled to attorney fees.  The court also rejected plaintiffs argument that they are entitled to fines under the Village's zoning code.

The court's ruling was filed under Illinois Supreme Court Rule 23.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, February 8, 2013

Cook County Passes Gun Ordinance

Cook County, Illinois enacted a new gun ordinance this week requiring gun owners to report to the county sheriff within 48 hours if they no longer have their firearm for any reason, including that it was lost, stolen, or sold.  The new ordinance does not apply in the City of Chicago or in any Cook County municipality that has a similar law in effect. Violations will result in penalties starting at $1,000 for a first offense, $1,500 for a second offense, and $2,000 for additional violations. The new requirements become effective in August.  Cook County Board President Preckwinkle argues the new rules will help cut down on so-called straw purchases in which people legally buy guns, then sell them to criminals.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, February 5, 2013

Employee's Speech Not Protected Under First Amendment

The Seventh Circuit recently addressed the issue of free speech and public employees in McArdle v. Peoria School Dist. No. 150, No. 11-2437 (January 31, 2012). Plaintiff, a principal, brought suit against her employer school district, alleging that the district terminated her to prevent her from publicly revealing misconduct committed by her supervisor.  The principal alleged that her supervisor used school funds for personal purposes, circumvented rules regarding admission procedures for nonresidents, and directed payment to a student teacher in violation of policy.  In her case against the district, plaintiff alleged that both the supervisor and the school district violated her First Amendment rights when the supervisor orchestrated her termination to prevent her from revealing the alleged misconduct.
The district court ruled in favor of the school district, and on appeal, the Seventh Circuit affirmed. The court noted that in order for a public employee to raise a successful First Amendment claim for an employer’s restriction of speech, the speech must be in the employee’s capacity as a private citizen and not as an employee. The Seventh Circuit evaluated plaintiff’s duties regarding district policies and finances, and determined that her reporting of the supervisor’s misconduct was an action of a public employee, and not protected by the First Amendment. The court noted that whistleblower laws and labor codes would more properly protect such exposure of misconduct by a public employee.
Post Authored by Erin Baker, Ancel Glink.