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Monday, April 29, 2013

City Condominium Ordinance Not Preempted by Statute

The Illinois Supreme Court recently upheld a Chicago ordinance allowing condominium owners to inspect condominium association financial records, finding it a valid exercise of the City's home rule powers. Palm v. 2800 Lake Shore Drive Condo Assn., 2013 IL 119505
The central issue in the case was whether the Chicago ordinance was a valid exercise of the City's home rule powers. The defendant, a condominium association, claimed that the ordinance conflicted with the Condominium Property Act and the General Not for Profit Corporation Act of 1986.  Both statutes require an association to produce only 10 years of records and allow an association 30 days to gather and produce the requested records.  Under the Chicago ordinance, however, there was no restriction on the age of the documents, and the documents have to be produced within three business days of the request.  The association claimed that the ordinance exceeded the City's home rule authority because it conflicts with these two statutes and renders them unenforceable. 
The Illinois Supreme Court rejected the association's argument.  The Court determined that the City, as a home rule municipality, has broad powers beyond that granted by statute. Under the Illinois constitution, home rule units may regulate activities even if the state also regulates those same activities.  To restrict the concurrent exercise of home rule power, the legislature must expressly state that home rule authority is limited. Here, there was no express preemptive language in the two statutes pertaining to the financial records of condo associations. Contrary to the condo association's argument, the conflict between the City's ordinance and the two state statutes did not render the ordinance invalid.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, April 25, 2013

Public Bodies Violated OMA in Two Recent PAC Decisions

Continuing its streak of ruling against public bodies in binding opinions, the PAC issued two recent opinions finding both public bodies in violation of the OMA.  Neither decision should surprise anyone based on the fact patterns presented, although public bodies should take notice of the PAC's very broad interpretation of the new "general subject matter" requirement for agenda descriptions.
In 2013 PAC 22987 (issued April 16, 2013), the PAC concluded that the Chicago Park District Board of Commissioners violated the OMA by taking final action to increase admission fees without listing the matter on the agenda for the meeting at which the vote was taken.  The Board defended its action by arguing that it "substantially complied" with the OMA because the fee increase item was listed on the Committee on Programs and Recreation meeting agenda that preceded the Board meeting.  Furthermore, the Board noted that the Board meeting agenda listed "Communications and Reports: Committee on Programs and Recreation," under which the Board approved the fee increases.  The PAC, however, found that final action on the fee increase was taken at the later Board meeting, and that the agenda for that meeting did not specifically list the admission fee increase item.  In the PAC's opinion, the "Communications and Reports" agenda item was not specific enough to give the public notice of that action item. 
In support of its ruling, the PAC cited the new OMA language in Section 2.02(c). That language provides that "[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting."  It is not clear from the opinion that the Board's approval of the fee increase was pursuant to a resolution or ordinance, however, suggesting that the PAC may be interpreting Section 2.02(c) in a manner that goes far beyond the language actually enacted by the legislature.
In the second opinion, 2013 PAC 23177 (issued April 23, 2013), the PAC concluded that the Western Illinios University Board of Trustees violated the OMA by taking final action on an employment matter in executive session. According to the opinion, the WIU Board met in closed session to discuss "personnel" matters.  At the end of the discussion, the Board voted to terminate the employment of a faculty member in closed session. The Board then reconvened to open session, but did not take any final action. The PAC determined that the WIU Board improperly took final action in closed session in violation of Section 2(e) of the OMA. The Board was directed by the PAC to include the termination of the employee on an upcoming meeting agenda (open session), and provide the public with an adequate explanation of the nature of its action prior to taking any vote.
Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, April 24, 2013

Teacher Dismissed for Calling Students “Future Criminals” on Facebook

Check out the Education Law Insights blog for an interesting analysis of a recent New Jersey appellate decision upholding the dismissal of a teacher for derogatory comments she made on her personal Facebook page.  New Jersey District Dismisses Teacher Who Called Students “Future Criminals” on Facebook.   Both the Administrative Law Judge and the New Jersey appellate court ruled that the teacher's Facebook posts were not protected speech under the First Amendment because they were not made on a matter of public concern. 

The teacher's posts included the following statements:

“I’m not a teacher—I’m a warden for future criminals!”
“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”

Another good example of why you should be careful what you post on social media!

Kudos to Education Law Insights for reporting on this case.

Tuesday, April 23, 2013

Upcoming Seminar for Local Government Officials

Calling all local government officials and employees in and around Lake County - don't miss this upcoming seminar presented by the Lake County Bar Association's Local Government Committee.  The seminar, entitled "Conflicts? OMA? OMG! Statutes Local Governmental Officials Need to Know," will be held on May 1, 2013, from 1:00 to 4:00 p.m., at College of Lake County, Building C. 
Ancel Glink Attorneys Adam Simon will speak on Public Finance and John Christensen on Public Construction Projects. There will also be sessions on OMA, FOIA, and conflicts of interest.  The seminar is appropriate for newly elected and seasoned local government officials and employees.
You can register using the attached form.  See you there!

Monday, April 22, 2013

Medical Marijuana Bill Passes Illinois House

On April 17, 2013, the Illinois House passed HB 1, legalizing the cultivation and use of medical marijuana.  The bill now goes to the Senate for consideration.  If approved, Illinois will join 18 other states and Washington, D.C. in decriminalizing medical marijuana use.  
The bill is lengthy, and contains provisions relating to licensure, taxes, criminal penalties, and vehicle amendments. Local governments will be most interested in Section 140 that addresses local zoning and control of cannabis cultivation centers and dispensaries.   Section 140 provides as follows:
Section 140. Local ordinances. A unit of local government may enact reasonable zoning ordinances or resolutions, not in conflict with this Act or with Department of Agriculture or Department of Public Health rules, regulating registered medical cannabis cultivation center or medical cannabis dispensing organizations. No unit of local government, including a home rule unit, or school district may regulate registered medical cannabis organizations other than as provided in this Act and may not unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act. This Section is a denial and limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.
The proposed legislation does not entirely preempt local control or zoning, but it would appear to limit a local government's authority over medical marijuana dispensaries and cultivation centers to the enactment of "reasonable zoning" regulations, so long as those regulations do not unreasonably prohibiting the cultivation, dispensing, and use of medical cannabis.  The bill contains an express preemption of home rule authority.
In addition to the local zoning language, the bill also restricts dispensing organizations from being located within 1,000 feet of a pre-existing public or private preschool, elementary, or secondary school, day care home or center, or part day child care facility. Dispensaries are also prohibited in houses, apartments, condominiums, or any residentially zoned area. No more than 22 cultivation centers will be permitted in Illinois, with one center for each Illinois State Police district boundary.  No more than 60 dispensaries will be permitted in Illinois, and the law would require them to be "geographically dispersed throughout the State," although the bill does not further define what that means.
So, what does this mean for Illinois municipalities? Under the proposed language, a municipality should be able to zone cultivation centers and dispensaries, both by identifying the appropriate (or inappropriate) zoning districts for such uses, as well as determining whether these uses should be permitted by-right or require a special use permit in the defined zoning districts. A municipality should also be permitted to impose reasonable conditions on any special use permit to mitigate the impacts, just as it does for other special uses.  Likewise, it would seem reasonable to prohibit dispensaries and cultivation centers in certain zoning districts. An outright ban on all cultivation centers and dispensaries, however, would probably have to be supported by findings of fact that there is a rational basis for banning these uses from a particular community (e.g., unique character). 
Given that the House went through five separate amendments to HB 1, we may see one or more additional amendments to this bill before it would make its way to the Governor for signature.
Post Authored by Julie Tappendorf, Ancel Glink

Friday, April 19, 2013

No Religious Discrimination Where Employee Chose Layoff Over Reasonable Accommodation

In Robinson v. City of Oak Park, a City employee sued for religious discrimination after her position was eliminated following an arbitration ruling that placed a more senior employee in her community relations position.  The City offered her a position in the Clerk's office, but she claimed that certain duties relating to voting and domestic partnerships would conflict with her religious beliefs as a Jehovah's Witness. Subsequently, the City offered her a position in the parking permits office with the same salary and benefits.  Although the employee acknowledged that the second position did not conflict with her religion, she rejected the position because the office was hectic and not well run and insisted that the City reassign certain duties to reasonably accommodate her in the first position.  When the City refused, she sued the City for religious discrimination.  The circuit court ruled in favor of the City, finding that the employee had no viable claim for a violation of the Illinois Human Rights Act.
On appeal, the appellate court considered the standards for proving religious discrimination.  First, the plaintiff must show that she was subjected to an adverse employment decision. Second, she must show that her job performance was satisfactory at the time the action was taken. Third, she must present evidence to support an inference that the adverse action was taken because of her religion.  If the employee can establish a prima facie case, then the burden shifts to the employer to establish a legitimate business reason for its action. The employee must rebut the business reason by showing it is not credible.
As an initial matter, the appellate court determined that no adverse action was taken against the employee because she chose to be laid off rather than accept the second clerk's position that would have reasonably accommodated her religion. The court emphasized that a reasonable accommodation is not one which is supposed to satisfy the employee's "every desire." Here, the employee admitted that the second position in the parking permits office did not conflict with her religious beliefs. Nevertheless, she rejected the reasonable accommodation offered by her employer, which resulted in her layoff. Because the court found that no adverse action was taken against the employee, she did not meet her burden of proving religious discrimination by the City.
Post authored by Julie Tappendorf, Ancel Glink

Thursday, April 18, 2013

Township Not Liable for Flooding Under Tort Immunity Act

The Illinois Appellate Court recently held that the Tort Immunity Act applied to a claim brought against a township highway commissioner for damages to property from the alteration of the flow of surface water.   In Pleasant Hill Cemetery Association v. Morefield, 2013 IL App (4th) 120645 (April 10, 2013), a Cemetery Association and its tenant farmer sued the township highway commissioner for allegedly damaging the cemetery’s farmland. The Association alleged that the highway commissioner altered the surface flow of water, which disrupted the farmland’s drainage patterns.
At trial, the highway commissioner contended that the Association’s claims were barred by Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act. That Section provides that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."  The court agreed and granted the highway commissioner’s motion to dismiss.
On appeal, the Illinois Appellate Court affirmed the trial court’s decision. The Court reasoned that because damaging land by altering the flow of surface water is a nuisance, and because a nuisance is a tort, the Tort Immunity Act applied.  Further, the Court determined that the highway commissioner was not liable under the “willful and wanton” exception to the Act, because altering the flow of the surface water was done for road safety improvements. The Court agreed with the highway commissioner that the safety of drivers on the road outweighed the risk of disrupting farmland drainage patterns.
Post Authored by Erin Baker, Ancel Glink 

Wednesday, April 17, 2013

No Property Right in Employment for Police Officer

After a police officer was terminated for misconduct and insubordination after a hearing by the City's police committee, he filed a civil rights suit claiming that the City's termination violated his due process rights.  The lawsuit alleged that the City's police department rules and regulations gave the officer a constitutionally protected property interest in continued public employment.  Specifically, the officer argued that because the rules expressly provided that probationary officers could be terminated at-will, non-probationary officers have an inferred property interest in continued employment because the rules did not expressly provide that non-probationary employees are "at-will." 

The Seventh Circuit ruled in favor of the City, finding that nothing in the City's rules created a clear promise of continued employment, and the mere presence of a probationary period did not, by implication, create a property right for non-probationary employees. Illinois law presumes that employment relationships are at will, and a person has a property interest in a job only where he or she has a legitimate expectation of continued employment based on a legitimate claim of entitlement.  The court concluded that something "stronger than inference from silence" is required to overcome Illinois' common-law presumption of at-will employment.  Cromwell v. City of Momence (April 12, 2013). 

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, April 16, 2013

Just Released: In the Zone E-News

Ancel Glink's Land Use Group just released the spring edition of its e-newsletter, In the Zone, where you can read the following articles and information: 
  • "How to Discover a Wolf in Sheep's Clothing:  Encouraging Transparency in Public Hearings"
  • Information about upcoming seminars and events, including the ILCMA summer conference and the APA National Conference in Chicago
  • A summary of a recent Illinois decision concerning lienholder notice in demolition actions.
  • An update on various proposed bills that will impact local governments on land use issues, including TIF legislation, wind energy, and diseased trees. 
You can download the e-newsletter in our Resource Center on Ancel Glink's website.

Monday, April 15, 2013

Supreme Court Declines to Hear Challenge to NY Concealed Carry Law

New York has a law in place that requires a person applying for a concealed carry permit to show that they have a special need to protect themselves.  The Second Circuit Court of Appeals upheld the law in a case challenging the constitutionality of the permit requirement.  The case was appealed to the U.S. Supreme Court, which declined to hear the appeal today.  The Second Circuit decision is Kachalsky v. City of Westchester.
The NRA has challenged the law claiming that it is a "de facto ban on carrying a handgun outside the home."  We reported previously on the Seventh Circuit Court of Appeals case striking down an Illinois law that bans concealed carry in Moore v. Madigan.  Some thought that the U.S. Supreme Court might take on the New York case because of the conflict between the two circuits.

Monday, April 8, 2013

National Planning Conference in Chicago April 13-17

More than 5,000 planners and decision-makers from around the globe are heading to Chicago for the American Planning Association’s (APA) National Planning Conference. Ancel Glink is participating in the conference, which will be held at the Hyatt Regency Chicago April 13-17.
The APA Conference offers workshops, tours, informative sessions and networking events for the planning community.  Ancel Glink Attorneys Julie Tappendorf and David Silverman will be participating in the following sessions:
-        It’s Getting Hot in Here: Taking place Sunday, April 14 from 9:45 am – 11:45 am, this session examines how different states are implementing the climate change and sustainability policies advanced by the National Environmental Policy Act. David Silverman and additional speakers will discuss how the courts are responding to the various legislative initiatives and how recent court decisions have related.
-        Career Reality – Speed-Dating for Planners: Julie Tappendorf and David Silverman will both be participating in this engaging session, which provides planning students the opportunity to chat with professionals in planning’s various fields. Students will learn about job responsibilities, required skills and career paths, while meeting and interacting with leaders in the planning field. The two-part session is taking place Sunday, April 14 from 2:30 pm – 5:00 pm.
-        Addressing Development Entitlements: David Silverman is partaking in this informative session that details the development entitlements in subdivisions throughout the Intermountain West region of the U.S. The session explores a 4-year long study from the Lincoln Institute of Land Policy and Sonoran Institute on the region and will culminate with the release of a final report on the study. Attendees can learn about the extent and nature of the entitlement issues and what communities can do to address and avoid issues. The session will be held Monday, April 15 from 2:30 pm – 3:45 pm.
-        Achieving Development through Community Agreement: Learn the best strategies for meeting development goals. The authors of the book "Development by Agreement: a Tool Kit for Land Developers and Local Governments," Julie Tappendorf, David Callies, and Cecily Talbert Barclay will explain how diverse stakeholders have reached agreements on affordable housing, conservation, local jobs and amenities, parks and schools without employing traditional zoning practices. Learn about the legal bases and potential pitfall at this session on Tuesday, April 16 from 7:15 am – 8:45 am.
You can learn more about the conference on the APA's website

Tuesday, April 2, 2013

Write-In Candidacy for Primary Election Must Be Filed with Both Local and County Clerks

A candidate for the Democratic Party's nomination for village president filed a declaration of intent to be a write-in candidate with the village clerk within the statutory timeframe for the primary election. However, the county clerk refused to conduct a primary election because the declaration was not filed with his office.  The candidate filed a mandamus action, and the circuit court ordered the county to hold a primary election. The county clerk appealed. The question in Lewis v. Orr, 2013 IL App (1st) 130357, was in which office must a declaration for write-in candidacy be filed - village clerk or county clerk? 
The First District Appellate Court reviewed two statutory provisions relating to write-in candidacies.  Section 7-5 of the Election Code provides that in order to be a write-in candidate for a primary election, a candidate must file a notice of intent with the local election official. Here, the candidate complied with Section 7-5 by filing her declaration of intent to be a write-in candidate with the village clerk, who is the "local election official."  However, Section 17-16.1 of the Election Code provides that write-in votes will only be counted for candidates who file notarized declarations of intent to be a write-in candidate with the "proper election authority."  The Election Code defines the proper election authority as the county clerk.  In this case, the candidate acknowledged that she did not file her declaration with the county clerk.
The court determined that following a strict interpretation of the two statutes in this case would lead to an absurd result - it would require a primary election under Section 7-5 but would not count any of the votes cast for the write-in candidate for failure to comply with 17-16.1.  Consequently, the court concluded that a primary need only be held when a write-in candidate files the proper paperwork with both the election authority (county clerk) and the election official (village clerk).  Because she failed to file her declaration with both the county and village clerks, she would not be entitled to run as a write-in candidate in the primary election.
Post Authored by Julie Tappendorf, Ancel Glink

Monday, April 1, 2013

PAC Advisory Opinion Unenforceable and Not Reviewable

Illinois law authorizes the Public Access Counselor (PAC) office of the Attorney General to issue binding or advisory opinions in response to a request for review of a public body's actions under the Open Meetings Act or Freedom of Information Act.  Binding opinions are subject to review or appeal to the circuit court.  The statute is silent as to whether an advisory opinion issued by the PAC could similarly be reviewed or appealed to the circuit court.  The Fourth District Appellate Court recently held that they are not reviewable in Brown v. Grosskopf, 2013 IL App (4th) 120402, holding that a non-binding opinion of the PAC office is "merely the Attorney General's advisory and unenforceable statement on the matter" and "has no legal effect." 
In this case, the the Livingston County States Attorney filed a declaratory judgment action against the Attorney General to appeal an advisory opinion by the PAC that the States Attorney's office was a "public body" subject to FOIA. The Attorney General filed a motion to dismiss, alleging that there was no legal controversy because nonbinding opinions are nonreviewable.  The trial court agreed, dismissing the case.  The appellate court affirmed, finding that state statute did not provide for any appeal or review of nonbinding opinions issued by the PAC office.  The court determined that since the advisory opinion has no legal effect and cannot be enforced by the PAC, it cannot be the basis for a lawsuit or appeal.
This decision is at odds with an earlier Cook County Circuit Court decision that held that nonbinding opinions of the PAC are subject to administrative review in the circuit court. See Garlick v. OPRF, et al. 11 CH 7587 (July 17, 2012).   That case was previously reported on the blog
Post Authored by Julie Tappendorf, Ancel Glink