Municipal Minute

Tuesday, December 30, 2014

Court Finds Park Ordinance Constitutional as Applied to "Occupy Chicago" Protesters

Tuesday, December 30, 2014 Julie Tappendorf

The Chicago Park District Code of Ordinances prohibits people from being in the parks from 11 pm to 6 am. Protesters affiliated with the Occupy Chicago movement were arrested when they refused to vacate Grant Park after being advised of the ordinance. The circuit court dismissed the charges, finding that the ordinance was unconstitutional, both facially and as it was applied to the protesters. The City appealed, and the appellate court reversed, finding the ordinance constitutional. Chicago v. Alexander, 2014 IL App 122858

The appellate court first determined that the park district had authority to keep parks safe and maintained. Second, the court held that Chicago's nighttime hour limitations were reasonable, as content-neutral regulations. Third, the court rejected the protesters' arguments that the ordinance was overbroad, finding that it only prohibited use of the parks for seven hours each day, leaving ample time for expressive content. Finally, the court held that banning the protesters from camping overnight in City parks was not more restrictive than necessary and did not violate the protesters' speech rights as they had ample alternatives to express their message, including other sites where the protesters were permitted during the nighttime. In short, the appellate court rejected the protesters' challenges to the park district ordinance.

Post Authored by Julie Tappendorf

Monday, December 29, 2014

City and Mayor Sanctioned for Deleting Emails During Litigation

Monday, December 29, 2014 Julie Tappendorf

From our friends at the Coates' Canons blog:

The City of Prescott, Arizona, and its mayor, learned a harsh lesson about the failure to preserve emails and other electronic records during (and in anticipation of) litigation. It is a good lesson for local governments, officials and employees about the importance of preserving electronic data, particularly when litigation is threatened or ongoing.

In Riley v. City of Prescott, 2014 WL 641632 (D. Arz. Feb. 19, 2014), the City of Prescott contracted with a local humane society to operate its animal shelter. Kay Anne Riley (Riley) worked as a marketing manager for the humane society. In October 2010, Riley formed a group, Prescott Citizens Against Bullies, whose purported purpose was to raise community awareness of an alleged injustice against a former city employee. Among other things, Riley issued a press release in late October announcing a planned protest against several city officials, including the mayor. The mayor and other city officials responded to the allegations by sending emails expressing their displeasure with Riley and her planned protest to Riley's employer, the humane society. Shortly thereafter, the humane society terminated Riley.

Riley then filed a civil rights lawsuit against the city and the mayor, claiming that she had been unlawfully terminated for exercising her First Amendment rights. During the discovery phase of the lawsuit, Riley learned that 24 emails sent and/or received by the mayor though his personal Gmail account had not been produced and, it was later learned, were deleted even though there was an e-discovery order in place requiring preservation. Riley filed a motion for discovery sanctions against the city and mayor for failure to preserve and produce responsive emails.

The court found no reasonable excuse for the mayor’s failure to produce the twenty-four emails that were discovered by Google, and that the mayor acted willfully and in bad faith in deleting those emails. The court directed that the jurors be given instructions allowing them to infer that the lost emails were damaging to the defendant, and awarded $35,000 in attorneys’ fees and costs to Riley as a sanction for the spoliated evidence.

You can read more about this case on Coates' Canons: Mayor Learns a Harsh E-Discovery Lesson

Ethics / Personnel

Friday, December 26, 2014

Sheriff Sued Over Social Media Policy

Friday, December 26, 2014 Julie Tappendorf

From Strategically Social: Sheriff Sued Over Social Media Policy:

We've reported on a number of NLRB decisions striking down social media policies for being too broad because they regulate protected employee conduct. Although the NLRB doesn't apply to local government employees, public employees are still entitled to certain protections for their social media activities.

When a government goes too far in regulating the social media activities of its employees, there are constitutional implications in addition to labor rights. The former is the subject of a case filed against the Harris County Sheriff (HCSO), where employees allege that a social media policy violated their First Amendment right to free speech.

The following are a few examples of policy provisions that have been challenged:

An employee's actions must never bring the HCSO in disrepute
Personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of the HCSO
Personnel shall not post any information pertaining to any other member of the HCSO
Employees cannot engage in negative speech about the HCSO

It will be worth watching this case to see how a court deals with a government social media policy - there are a lot of NLRB decisions on private employers, but very little guidance for government employers (the few cases that have been filed have mostly settled).

You can read the complaint here: Pittman v. Garcia (S. Dist. Texas, 2014).

Post Authored by Julie Tappendorf

Social Media

Tuesday, December 23, 2014

Illinois Eavesdropping Bill Goes to Governor

Tuesday, December 23, 2014 Julie Tappendorf

SB 1342 recently passed both houses of the Illinois General Assembly and is now awaiting action by the Governor. That bill would amend the Eavesdropping Article of the Illinois Criminal Code to address the Seventh Circuit Court of Appeals' 2012 decision in Alvarez v. ACLU. That case involved a lawsuit filed by the ACLU against Cook County to block prosecution of ACLU staff from recording recorded police officers in the performance of their public duties. The Seventh Circuit ruled in favor of the ACLU, finding the law (which requires two-party consent for recordings )unconstitutional. Specifically, the court ruled that the law "restricts far more speech than necessary to protect legitimate privacy interests." The U.S. Supreme Court refused to hear the county's appeal, which effectively blocked enforcement of the Illinois eavesdropping law.

SB 1342 would still require two-party consent for recordings, but only if those recordings are of a “private conversation,” and the person recording the communication does so in a “surreptitious manner.” The bill defines “private conversation” to mean a conversation between people where the communication between the parties is one where one or more of the parties intended the communication to be of a “private nature under circumstances reasonably justifying that expectation.” “Surreptitious” means that the recording was obtained or made “by stealth or deception, or executed through secrecy or concealment.”

So, what does that mean in practical terms? It is still a crime for someone to secretly audio or video record interactions in which one of the parties has a reasonable expectation of privacy. There are still open questions as to what a “reasonable expectation of privacy” means, and how it will be defined and interpreted. But, based on the new definition of “private conversation,” the law might allow someone to record law enforcement officers on duty since it could be difficult for on-duty police to argue they have a reasonable expectation of privacy in their conversations in public places. If the law is ultimately signed by the Governor, it seems likely that the courts will be called upon to interpret these new definitions, particularly to provide guidance on what a "reasonable expectation of privacy" is.

Post Authored by Julie Tappendorf

Monday, December 22, 2014

Ill. Supreme Court Resolves Dispute on Electoral Board Judicial Review

Monday, December 22, 2014 Julie Tappendorf

A candidate or objector can file an appeal of an adverse electoral board's decision with the circuit court, subject to certain statutory procedural requirements. 5 ILCS 5/10-10.1. One of those requirements is that the party seeking judicial review must serve a copy of the petition on the electoral board and other parties. There is currently a split in the appellate courts as to what constitutes service "on the electoral board." The First and Fourth Districts have ruled that service on individual members of the electoral board is not sufficient to confer jurisdiction on the court, holding that the individual electoral board members and the board as an entity must be served. The Third and Fifth Districts, on the other hand, have taken a contrary position and held that service on individual board members is sufficient to comply with the Election Code.

This split was the subject of a recent Illinois Supreme Court decision in Bettis v. Marsaglia, 2014 IL 117050. In that case, the Supreme Court heard the appeal of the Fourth District's decision that the statute requires service on the individual members and the board itself. The question before the court is if a petitioner serves every member on the electoral board, is duplicate service on the board as ane entity also required? The Supreme Court said no, reversing the Fourth District and adopting the Third and Fifth District's position that service on the individual members is sufficient to provide jurisdiction to the courts to hear the appeal of an electoral board decision.

The Illinois Supreme Court first determined that the statutory language is unclear, leading to the split decisions in the various districts. Because of the ambiguous language, the Court noted that both interpretations were reasonable. However, the Court held that the Third and Fifth District's interpretation was the better one because service on the individual electoral board members accomplished the intent of the statute - that all necessary parties receive notice. Requiring the additional step of serving the electoral board as an entity would be redundant, in the Court's view.

The Court also noted that access to a place on the ballot is a substantial right not lightly to be denied. Adopting an interpretation that simplifies judicial review would promote ballot access.

The Court also rejected the argument that the petition for judicial review must name the electoral board and its members, finding that the statute does not require this.

Justice Theis dissented from the opinion, and would agree with the First and Fourth Districts that the petition for judicial review must be served on the electoral board as an entity.

Post Authored by Julie Tappendorf, Ancel Glink

Elections

Land Use and Environmental

Friday, December 19, 2014

Court Rejects Sierra Club's Challenge to EPA's Finding that 3 Midwest Areas Meet Ozone Standards

Friday, December 19, 2014 Julie Tappendorf

The Sierra Club filed a lawsuit against the U.S. EPA challenging its decisions to redesignate three Midwest areas (including Milwaukee-Racine, Chicago, and East St. Louis) as meeting the ozone standards of the Clean Air Act. The Act requires the EPA to confirm that (1) the ozone in an area has dropped to a certain level and (2) that the improvement in air quality resulted from permanent and enforceable reductions in emissions.

In 2004, all three areas were designed by the EPA as not meeting the ozone standards, and classified the areas as "moderate nonattainment" under the Act. In 2012, however, the EPA redesignated the areas to "attainment."The Sierra Club argues that the EPA acted arbitrarily and capriciously in making its redesignation decisions in these three areas. The Seventh Circuit disagreed, and denied the Sierra Club's appeal. Sierra Club v. USEPA (7th Cir., Dec. 16, 2014) The court noted that the arbitrary and capricious standard gives great deference to the EPA's administrative decision, and determined that the Sierra Club failed to overcome that high standard in its challenge to the EPA's redesignation.

Post Authored by Julie Tappendorf

Constitutional Issues / Finances

Thursday, December 18, 2014

Village's $1000 Video-Gaming License Fee Upheld

Thursday, December 18, 2014 Julie Tappendorf

Illinois allows establishments with liquor licenses to install video-gaming machines subject to state regulations and a state license. The Video Gaming Act expressly authorizes non home-rule municipalities to charge a fee for each video gaming terminal not to exceed $25. There is nothing else in the Act about local registration or licensing, although many municipalities have enacted regulations to require a license or registration and impose a fee, including the Village of Elmwood Park.

In 2013, the Village adopted an ordinance imposing a $1,000 license fee per video gaming terminal. The Village relied on its home rule authority to impose the fee. A gaming company applied for and obtained state licenses to install video gaming terminals in a restaurant in Elmood Park. However, the company did not pay the Village's license fee, nor did it obtain the required local licenses for the gaming machines. Instead, the company requested that the Village waive the fee. When that request was denied, the company sued the Village, claiming that the fee was unconstitutional and the Village was preempted from requiring a license or license fee.

Recently, a trial court issued an opinion upholding the Village's license fee. First, the court rejected the company's argument that the Video Gaming Act preempted a home rule municipality's video gaming regulations, finding that Elmwood Park's regulations and license fee did not conflict with the state regulatory scheme. The court also determined that the license fee was not an unconstitutional tax, because the fee was reasonably related to the costs of regulating and enforcing the video gaming regulations. As a result, the court dismissed the company's challenge to the Village's video gaming licensing fee and ordinance.

You can read the court order here: Accel Entertainment Gaming, LLC v. Village of Elmwood Park

Post Authored by Julie Tappendorf

1 Comment

Wednesday, December 17, 2014

Supreme Court Upholds Traffic Stop Based on Reasonable Mistake of Law

Wednesday, December 17, 2014 Julie Tappendorf

The U.S. Supreme Court decided a case regarding probable cause for traffic stops. In Heien v. North Carolina, the court concluded that an officer's reasonable mistake of law can still support probable cause to make a traffic stop.

In the case, a police officer had stopped a vehicle with a broken brake light based on the officer's belief that a North Carolina law that required vehicles to maintain rear lights in factory-installed condition meant that both rear brake lights had to be in working order. While issuing a warning ticket for the broken light, the officer became suspicious and requested consent to search the vehicle, which was granted. The officer found cocaine in the car and arrested the driver for attempted drug trafficking.

The driver filed a motion to suppress the evidence, arguing that the officer had no probable cause to make the initial traffic stop because North Carolina law did not require both lights to be in working order. The trial court agreed that the law only required one brake light to be in working order, but allowed the evidence in based on the officer's reasonable, although mistaken, belief in the law. The appeals court reversed, finding that the officer's mistake could not justify probable cause, but the state supreme court reversed again. The case was ultimately appealed to the U.S. Supreme Court.

On appeal, the Supreme Court concluded that the officer's mistake in believing the car violated the law was 'reasonable' and satisfied the requirements of probable cause for the traffic stop. The Supreme Court noted that the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials “fair leeway for enforcing the law.” As a result, the officer had probable cause to stop the vehicle based on a reasonable "mistake in law." Therefore, the evidence was properly admitted.

Post Authored by Julie Tappendorf

Tuesday, December 16, 2014

Federal Spending Bill Includes Medical Marijuana Provision

Tuesday, December 16, 2014 Julie Tappendorf

One of the problems with state medical marijuana laws (including the recently enacted Illinois Compassionate Use of Medical Cannabis Pilot Program Act) is that federal law still prohibits the cultivation and sale of marijuana, and there are no medical marijuana or research exceptions.

Recently, however, the House and Senate Appropriations Committees included a provision to address this issue in the omnibus spending bill sent to the President last week. The Hinchey-Rohrabacher Amendment would block the use of Department of Justice funds to “prevent [medical marijuana states] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” One of the immediate effects of this federal spending restriction may be to enable medical marijuana transactions to take place by means of payment other than cash.

Post Authored by Julie Tappendorf

Finances / Land Use and Environmental / Personnel

Land Use and Environmental

Monday, December 15, 2014

Condemnation of Sewer Easement was Proper

Monday, December 15, 2014 Julie Tappendorf

A water reclamation district adopted an ordinance to install a sanitary sewer extension to a residential development. The proposed sewer main would require the installation of a "trunk line" that would run beneath property known as the Sanctuary Condominiums of Rock Cut. The district attempted to negotiate purchase of an easement for the improvements (at one point offering double the easement's appraised value of $1350), but when the negotiations failed, the district filed a complaint for condemnation with the circuit court. The circuit court approved the condemnation at the appraised value of $1,350 and the condominium group appealed. The appellate court affirmed in Rock River Water Reclamation District v. Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 130813.

The appellate court rejected the condominium's arguments that the condemnation action was defective, and the compensation amount insufficient. Specifically, the court held that the district had authority to condemn, the sewer project was necessary, the district negotiated in good faith, and the compensation award of appraised value was appropriate. The court rejected the condominium group's argument that the district was required to compensate the owner for costs to re-landscape the property after the project was completed.

Post Authored by Julie Tappendorf

Land Use and Environmental

Friday, December 12, 2014

Update on Bleacher Zoning Dispute

Friday, December 12, 2014 Julie Tappendorf

We've previously posted about the suburban school district that installed bleachers at its high school without going through the city's zoning process. When sued by the city, the school district argued that it was exempt from zoning. The circuit and appellate courts disagreed, holding that the school district must comply with local zoning. Gurba v. Community HS Dist. 155.

The school district has filed an appeal with the Illinois supreme court, but it could take months before the court decides whether it will hear the appeal. Recently, the school district submitted an application to the city for zoning relief for the bleachers, which application is making its way through the city's zoning process. That process will include staff review and a future public hearing before the city's planning and zoning commission before ultimately being voted on by the city council.

You can read the previous posts about this case here and here.

Post Authored by Julie Tappendorf

Thursday, December 11, 2014

McCormick Place Convention Leases Not Exempt under FOIA

Thursday, December 11, 2014 Julie Tappendorf

The PAC recently issued its 16th opinion for 2015. PAC Op. 14-016. There, a reporter for the Chicago Sun-Times had filed a FOIA request with the Metropolitan Pier and Exposition Authority (MPET) for copies of lease agreements for all conventions and trade shows at McCormick Place since January of 2011. MPET responded by asking the reporter to narrow his request because it would be unduly burdensome to provide 243 license agreements. MPET also asserted that certain information relating to financial and square footage data was exempt as confidential and proprietary under section 7(1)(g) of FOIA because release would put McCormick Place at a disadvantage in competing for conventions and trade shows. MPET further argued that it would undermine the show organizer's ability to freely negotiate pricing with other centers.

The reporter declined to narrow his request, and instead filed a complaint with the PAC. The PAC rejected MPET's reliance on the "trade secret and commercial or financial information" exemption, finding that this exemption only protects information obtained from a person or business that would cause competitive harm to that business, not the public body. Further, the PAC argued that the Illinois constitution requires all records relating to the receipt and use of public funds to be open to the public.

The PAC also rejected MPET's argument on appeal that the financial terms of the lease are exempt as valuable formula "when disclosure could reasonably be expected to produce private gain or public loss" under section 7(1)(i). The PAC asserted that this exemption does not apply to "basic lease agreement information" such as rental amounts or leased square footage.

Finally, the PAC rejected MPET's argument that compliance would be unduly burdensome. Although the 235 lease agreements encompass 3,500 pages, because the PAC rejected all of MPET's cited exemptions, there would be no need to review and redact any information.

Post Authored by Julie Tappendorf

Wednesday, December 10, 2014

Public Body Can Now Direct FOIA Requesters to Website for Records

Wednesday, December 10, 2014 Julie Tappendorf

Although we reported last week on the passage of HB 3796 (the FOIA amendment), the "online records" provision of this new law may have gotten lost in all of the opposition to the "voluminous request" provision of P.A. 98-1129.

A new section 8.5 to FOIA now states that a public body that posts records on its website need not provide copies of those online records in response to a FOIA request. Instead, the public body can direct the requester to the website where the record can be “reasonably accessed.”

There is an exception to this new rule. If the requester is unable to reasonably access the record online after being directed to the website, then the requester can resubmit the request to the public body with a statement as to his or her inability to access the record. In that case, the public body is required to make the record available for inspection or copying as otherwise required by FOIA.

Although there was some opposition to this provision from pro-transparency groups, this law should actually promote transparency because public bodies are likely to post more of their records online.

The law became effective on December 3, 2014, when the Senate voted to override the Governor’s veto.

New section 8.5 is reprinted below:

Sec. 8.5. Records maintained online.

(a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed.

(b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.

Post Authored by Julie Tappendorf

Tuesday, December 9, 2014

Veto of Commercial Ridesharing "Uber" Bill Stands

Tuesday, December 09, 2014 Julie Tappendorf

On November 21, 2014, the Illinois House failed to override Governor Quinn’s veto of HB 4075. That bill was intended to ensure that ridesharing companies such as Uber and Lyft offer the same consumer protections as is required for the taxi industry (i.e., commercial liability insurance, criminal background checks, special licenses, special registration plates, vehicle inspections, etc.). The bill also included language that would preempt home rule powers and circumvent local regulatory authority. Home rule preemption prompted the Governor’s veto and the Illinois Municipal League's opposition to the bill.

Post Authored by Julie Tappendorf

Monday, December 8, 2014

Court Upholds Arbitration Ruling in Chicago Parking Agreement Case

Monday, December 08, 2014 Julie Tappendorf

The recent case of The City of Chicago v. Chicago Loop Parking LLC warns government about the danger of giving up the right to go to court to settle disputes. The City entered into an agreement with Chicago Loop Parking LLC, (“CLP”), to lease and grant a concession to operate four underground parking garages in Grant and Millennium Parks for a 99-year period. CLP paid the City $563,000,000. As a result of a series of mistakes and unsuccessful strategy choices made by the City, the contract turned out to be a very bad deal. One of the terms of the contract prevented the City from litigating in court and limited dispute resolution to a binding arbitration process. A dispute arose and a 3-member arbitration panel found that the City owed CLP nearly $58,000,000 in damages. Five months after the arbitration award was entered, the City filed a lawsuit in the circuit court seeking to stay the judgment and to modify it.

The reason for the judgment against the City was that, contrary to a promise made in the Agreement with CLP, the City allowed the owners of a new building called “Aqua” the right to include a 1,273-space parking garage in an area where it had agreed to give exclusive parking lot privileges to CLP. After the Court made the award, the City and the owner of the newly-granted garage entered into an agreement to somewhat limit those who could park in the new garage.

At the trial court, the City attempted to overturn the perfectly rational decision of the arbitrators based upon a whole series of arguments. Both the trial and appellate courts were confronted with the very established rules and concepts which attempt to make arbitration decisions, generally between commercial disputants, almost impossible to overturn. Although there are cases where arbitration awards are overturned or modified based upon clear errors or mistakes by the arbitrators, in this situation, the errors, mistakes and poor judgment all related to the actions of the City. There are very limited instances in which an arbitration award can be overturned to “do justice.” Nonetheless, the arbitration process is adversarial and entities that become involved in contract disputes must be prepared to suffer the financial penalties of agreeing to bad contracts and making matters worse through other mistakes.

The appellate court concluded that “special rules do not apply to the City simply because its actions have significant consequences for taxpayers.” The Court also wrote: “There is nothing ‘fair’ about reversing the outcome of a year’s-long arbitration process selected by the parties because one party does not like the result, even where significant public funds are at stake.” The City was either not able to or did not raise the argument that a governmental body, which requires large-scale residential and commercial buildings to include public parking could not or did not intend to give a concession holder an absolute monopoly on parking in the area. Unfortunately, even the modified agreement for the new parking garage did not limit parking to tenants, customers and visitors, but allowed public parkers. While such an argument might have been made if the original dispute was heard by a court, it would likely be ignored in arbitration. Governmental bodies must evaluate the lost benefits of turning their disputes over to arbitrators who have a limited scope of analysis and inquiry.

It is not often that the first few sentences in an appellate court opinion tell us all we need to know. This opinion begins, as follows:

This case involves two sophisticated parties that willingly chose arbitration as their preferred method of resolving their disputes, thereby restricting the reach of the courts. Now, unhappy with the result of that choice – a final and binding arbitration award it wishes to avoid – one of the parties turns to the court for relief. This court finds, as did the trial court, that it has no authority to overturn the valid arbitration award.

Post Authored by Stewart Diamond, Ancel Glink

Constitutional Issues / Personnel

Friday, December 5, 2014

Employee's Letter About Treatment of Adjuncts a Matter of Public Concern

Friday, December 05, 2014 Julie Tappendorf

From The Workplace Report with Ancel Glink:

The 7th Circuit Court of Appeals recently reviewed First Amendment protections for public employees in Meade v. Moraine Valley Community College (Oct. 30, 2014). There, a college professor wrote a letter to an outside organization about her employer college. The letter alleged that the college poorly treated its adjunct professors, which harmed its students. She signed the letter in her capacity as president of the Moraine Valley Adjunct Faculty Organization, a union representing adjunct faculty. Two days later, she was fired, and the notice of termination expressly stated that the reason was her letter.

She sued the college, alleging that her employer retaliate against her for exercising her right to freedom of speech. The college defended its actions by arguing that her letter did not address "matters of public concern" and could not, therefore, serve as the basis for a First Amendment retaliation claim. The district court determined that the letter was not a matter of public concern because Meade would be personally affected by any changes in policy.

On appeal, the 7th Circuit disagreed with the district court and found that Meade's letter did discuss matters of public concern by addressing treatment of all adjuncts (not just Meade), and linking that treatment to student performance at the college. As a result, the case was remanded to the district court to consider whether (1) the employee's speech was a substantial or motivating factor in her termination and (2) the college can show that it would have taken the same action without the existence of the protected speech.

To read more about this case, visit The Workplace Report here.

Thursday, December 4, 2014

Voluminous Request FOIA Bill - Both Houses Override Veto

Thursday, December 04, 2014 Julie Tappendorf

We previously reported on HB 3796 that would provide some relief to public bodies from FOIA requests that fall within the bill's definition of "voluminous request." The bill provides additional time to respond and authority to charge additional fees to respond to these type of requests. Another part of the bill (discussed below) states that public bodies do not have to provide public records in response to a FOIA request if those records are on the public body's website.

The bill had initially passed both houses, but was vetoed by the Governor. Yesterday, the Senate voted to override the Governor's veto (the House had approved the override last month), which is good news for public bodies.

Here's a reminder of what a "voluminous request" would be under this bill:

"Voluminous request" means a request that: (i) includes more than 5 individual requests for more than 5 different categories of records or a combination of individual requests that total requests for more than 5 different categories of records in a period of 20 business days; or (ii) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single requested record exceeds 500 pages. "Single requested record" may include, but is not limited to, one report, form, e-mail, letter, memorandum, book, map, microfilm, tape, or recording.

Another provision of this bill that has been less publicized adds a new section 8.5. That section provides that a public body need not provide records in response to a FOIA request if those records are published on the public body's website. This should encourage public bodies to place more information and records on their website. The new section is below:

Sec. 8.5. Records maintained online.

(a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed.

(b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.

Post Authored by Julie Tappendorf

Housing Authority's Interpretation of Drug Policy Too Broad

Thursday, December 04, 2014 Julie Tappendorf

The Housing Authority of Jefferson County had a drug policy that prohibits employees from using or being under the influence of alcohol or any controlled substance "while in the course of employment." It also conducted random drug testing of its employees. When an employee was called for a random drug test on December 19, 2008, he informed his supervisor that he thought he would fail the test because he had smoked marijuana on a recent vacation on November 15 and 22, 2008. He was subsequently terminated for violating the drug policy. His drug test results came in after his termination, and were negative.

The employee sued, arguing that the drug and alcohol ban only applied while he was performing work duties, and he was improperly denied unemployment benefits. The trial court and appellate courts both agreed. Eastham v. Housing Authority of Jefferson County, 2014 IL App (5th) 130209.

The court addressed two issues. First, the court had to determine whether the employee's conduct qualified as "misconduct" to justify denial of unemployment benefits. Second, the court addressed the issue of whether the employer's drug policy was reasonable.

With respect to the first issue, the court rejected the employer's interpretation of the phrase "while in the course of employment" to mean any time that an employee is employed by the Housing Authority as too broad and unreasonable. Instead, the court interpreted the policy to apply to an employee who has a measurable amount of a prohibited substance in any drug test. In this case, the employee's drug test was negative, so he did not engage in "misconduct" for purposes of being denied unemployment benefits.

The court found the Authority's drug policy reasonable, based on its own interpretation of the Housing Authority's drug policy to only prohibit employees from being under the influence of drugs or alcohol while on the job because requirements related to the performance of an employee's duties are reasonable. However, the Authority's own interpretation of the drug policy (to ban use of illicit substances at any time during an employee's tenure) would not be reasonable, according to the court.

Although the court found that the employee should not have been disqualified from receiving unemployment benefits, it did not address whether the Authority's discharge of the employee was lawful, stating that an "employee's conduct may be sufficient to justify his discharge without constituting misconduct sufficient to disqualify him from [unemployment] benefits..."

Post Authored by Julie Tappendorf

Wednesday, December 3, 2014

Minimum Manning Bill Goes to Governor

Wednesday, December 03, 2014 Julie Tappendorf

Last month, the Illinois Senate approved HB 5485, the firefighter minimum manning bill. The bill had been previously passed by the Illinois, and now goes to the Governor for his consideration.

Under the bill, every municipality with a fire department staffed by unionized firefighters would be mandated to bargain over fire department staffing levels if the union wants to include staffing as a subject of bargaining. If the union and municipality cannot reach agreement on staffing levels, that issue would go before an arbitrator who would be empowered to render a decision regarding appropriate staffing levels.

The bill had significant opposition from municipalities and municipal organizations, including the IML. You can read more about the opponents' efforts here.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 2, 2014

FOIA Bill a Mixed Bag for Public Bodies

Tuesday, December 02, 2014 Julie Tappendorf

House Floor Amendment No. 3 to Senate Bill 2799, introduced on Monday, proposes two amendments to the Illinois Freedom of Information Act. The first would amend section 7(1)(f) of FOIA to modify the draft records/deliberative process exemption. The second would amend section 11(i) of FOIA to modify the attorneys’ fee provision for prevailing parties. Although the proposed FOIA amendments were quietly incorporated into a bill initially introduced to amend the Illinois Act on the Aging, they are now getting a lot of attention from transparency advocates and others. You can read the bill here.

With respect to the proposed changes to 7(1)(f), they don’t seem to offer anything groundbreaking for public bodies. The amendments clarify what a public body can do if a “draft record” is cited publicly by the head of the public body – under the proposed amendment, the public body can still claim the exemption to withhold the record, but would need to release that portion of the record that was publicly cited. The amendments also state that records that qualify under this exemption remain exempt even after the record was adopted or incorporated into a final decision. That last part may require further explanation since a record that is acted on by the public body would likely no longer qualify as a “preliminary” record. Further clarification on the rationale for the 7(1)(f) amendments would also be helpful. One positive change for public bodies is that the bill makes it clear that even purely factual material can qualify under the deliberative process exemption - recall the recent PAC opinion where the PAC stated otherwise, reported on yesterday's blog.

It is the proposed changes to section 11(i) that seem to be of questionable benefit to public bodies. Currently, there is a circuit court split on whether attorneys’ fees are recoverable if the public body voluntarily produces the records after a lawsuit has been filed. In the first appellate district, the answer is yes, the requester is still entitled to recover its attorneys’ fees even if the public body voluntarily turns over the records. The second appellate district held otherwise, however, finding that a requester was not entitled to attorneys’ fees unless the court ordered the public body to turn over the records. I wrote about these two cases on the blog here.

I have two concerns with the proposed amendments.

First, the bill would mandate payment of attorneys' fees even if the public body voluntarily turns over records after a lawsuit is filed if the court imposes a civil penalty. While you might think it unlikely that a public body would get hit with a civil penalty if it voluntarily turns over the records, that is exactly what happened in Rock River Times v. Rockford Public School District, 2012 IL App (2d) 1108798 (October 3, 2012). In that case, the court did not require the school district to pay the newspaper's attorneys' fees. Under the proposed bill, however, because the court imposed a civil penalty, the district would be mandated to pay attorneys' fees.

Second, the proposed amendment defines "prevailing" to include court-approved settlements and consent decrees. In my opinion, it seems counterproductive to adopt a law that would seem to discourage public bodies from settling FOIA disputes for fear of having to pay the requester’s attorneys’ fees if it voluntarily provides the records to the requester. Punishing a public body for settling litigation doesn't benefit anyone. Prolonged litigation is costly to taxpayers who will ultimately fund these cases. And the requester is certainly not going to get the documents any sooner if the case continues in litigation rather than settling.

What I find interesting is that the press association, Attorney General, and other transparency advocates are avidly opposing this bill. Maybe I’m missing the benefit to the public body of the proposed changes to section 11(i)?

Post Authored by Julie Tappendorf

Monday, December 1, 2014

Employee Resume & Application Subject to FOIA Release

Monday, December 01, 2014 Julie Tappendorf

An individual filed a FOIA request asking for a copy of the completed employment application and resume for a village employee. The village denied the request, citing a variety of FOIA exemptions, including section 7(1)(c) (personal information) and section 7.5(q) (information prohibited from disclosure under the Personnel Records Review Act). The requester appealed, and in a recent binding opinion, the Public Access Counselor found the village in violation of FOIA. PAC Op. 14-015.

The village first argued that the information contained with the employee's resume and employment application did not "pertain to the public duties of public employees," so was not subject to release under FOIA. The village cited a variety of cases to support its argument that personnel records are exempt from release under FOIA. The PAC rejected the village's argument, however, finding that those cases were based on the exemptions contained in FOIA prior to 2010 when the legislature eliminated the per se exemption for personnel records. The PAC interpreted the current law to require the village to demonstrate that release of these personnel records would be a clearly unwarranted invasion of personal privacy of the employee that outweighs any public right to disclosure. The PAC determined that the "compelling public interest" in disclosure of a public employee's work experience, education, and credentials so the public can assess the employee's qualifications to perform his or her job outweighed the employee's privacy rights.

The PAC also rejected the village's second argument, that the information was exempt under the personnel records review statute. The PAC noted that there is no provision in that law prohibiting a public body from disclosing resumes or employment applications.

Third, the village argued that the records were exempt under 7(1)(f), as "inter- and intra-agency predecisional and deliberative material" because the records were used solely to assist the village in its deliberative process in considering and selecting the employee. The PAC rejected that argument as well, finding that purely factual material does not fall within this exemption.

Finally, the village argued that the records contained certain information that falls within the "private information" exemption under 7(1)(b) of FOIA. The PAC responded that this information can be redacted, but the remainder of the records must be released.

The PAC concluded that the village must provide the resume and employment application to the requester, with proper redactions to protect the employee's private information, including his signature on the application.

Post Authored by Julie Tappendorf

1 Comment

Wednesday, November 26, 2014

Illinois Supreme Court Dismisses Challenge to Red Light Camera Ordinance

Wednesday, November 26, 2014 Julie Tappendorf

Last year, an appellate court upheld the dismissal of a challenge to the City of Chicago's red light camera ordinance. Keating v. City of Chicago, 2013 IL App (1st) 112559-U. The case made its way to the Illinois Supreme Court, which last week dismissed the appeal because 2 of the Justices recused themselves, and the remaining Justices were divided so it was impossible to obtain the concurrence of 4 Justices required to render a decision. Keating v. City of Chicago, 2014 IL 116054.

The plaintiffs claimed that the City lacked authority to enact the ordinance and that the ordinance was unconstitutional because it was enacted pursuant to a statute that violated the constitution as special legislation. The City had filed a motion to dismiss, arguing that the plaintiffs did not have standing to challenge the ordinance and that the ordinance was validly enacted. Both the trial court and the appellate court dismissed the case. The appellate court held that Chicago's red light camera ordinance was validly enacted based on its home rule powers. The court also held that the statutory authorization was not special legislation, although it applied only to eight counties specially identified in the statute.

The opinion does not explain why Justice Burke and Justice Karmeier recused themselves.

Post Authored by Julie Tappendorf

Tuesday, November 25, 2014

Illinois Pension Reform Law Unconstitutional

Tuesday, November 25, 2014 Julie Tappendorf

Unless you have been living under a rock, you are familiar with Illinois' public employee pension "crisis" and the legislature's attempts to fix that crisis through reform legislation. Pursuant to Public Act 98-0599, the Illinois General Assembly approved a variety of amendments to the Illinois Pension Code including the following: (1) change to the automatic annual increase provision; (2) a caps on pensionable salaries; (3) an increase in the retirement age; and (4) alteration of the method for calculating interest. among others.

A number of lawsuits were filed challenging the Act. Many of these lawsuits were consolidated before Judge Belz of the Sangamon County circuit court. Last week, Judge Belz issued an opinion striking down the Act as unconstitutional. Specifically, the Judge held that the "Act without question diminishes and impairs the benefits of membership in State retirement systems" in violation of the Illinois Pension Clause's protection against the diminishment and impairment of pension benefits, which are "absolute and without exception."

Because the Act contained a clause declaring the various sections "mutually dependent and insverable from one another," the Judge declared the Act unconstitutional in its entirety.

The legislature will have to go back to the drawing board on this one, but this decision might provide some guidance at least in what pension reform measures will not pass constitutional muster.

Post Authored by Julie Tappendorf

Finances / Personnel

Monday, November 24, 2014

Upcoming Seminar on Local Government Law

Monday, November 24, 2014 Julie Tappendorf

The Illinois Institute for Continuing Legal Education (IICLE) will be presenting its annual Local Government Law Institute on Friday, December 5th, in Chicago. The conference includes six substantive legal sessions, a "lunch & learn roundtable" program at lunch, as well as a post-program cocktail reception. This is a "don't miss" program for local government lawyers.

You can register here.

December 5, 2014

UBS Tower & Conference Center, One N. Wacker, 2nd Floor, Chicago

9:00 a.m. - 6:00 p.m.

This program provides 6.75 CLE credits, 2.0 of which are professional responsibility (ethics) credits.

Here is a summary of the sessions:

The Fox in the Henhouse: Fraud in Government
(1.0 Professional Responsibility Hours, pending approval)
Discuss best practices for uncovering and preventing fraud in government, using lessons from City of Dixon & SWANCC.

John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue, Chicago

Trouble in the Workplace
Learn more about the different paths to employee discipline, including BFPC/Civil Service and Grievance/Arbitration and how to deal with employee complaints.
Steven B. Adams, Tressler, LLP, Chicago
James V. Ferolo, Klein, Thorpe and Jenkins, Ltd., Chicago
Lance C. Malina, Klein, Thorpe and Jenkins, Ltd., Chicago

The Zoning Game
Using a hypothetical case study and role-playing, explore legal, due process, and ethical issues that come up in a zoning case, from application to final disposition.
Steven M. Elrod, Holland & Knight, LLP, Chicago
Julie A. Tappendorf, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

Lunch & Learn Roundtables
Discussion Leaders at Each Table

From American Hustle to the Hunger Games: Best Practices for Conducting Public Meetings
A panel of battle-hardened attorneys will share their war stories and tackle the toughest, weirdest questions from the audience and from each other.
Moderators:
Peter M. Friedman, Holland & Knight, LLP, Chicago
Michael F. Zimmermann, Tressler, LLP, Chicago

Early & Often: A Look at Local Government Consolidated Elections
How do you deal with the politics and procedures of ballot challenges? How and to what extent can a municipality legally weigh in on referendum propositions? Get answers to these questions, plus the latest on hearings and ethical issues with local elections.
Hon. Mathias W. Delort, Presiding Judge, First Division of the Illinois Appellate Court, First District, Chicago

A View From the Bench
(1.0 Professional Responsibility Hours, pending approval)
An engaging panel of judges who frequently hear municipal law matters will engage with you in an interactive, moderated session.
Moderator: Katherine S. Janega, Former Village Attorney, Winnetka
Hon. Mathias W. Delort, Presiding Judge, First Division of the Illinois Appellate Court, First District, Chicago
Hon. Thomas M. Donnelly, Associate Judge, Circuit Court of Cook County, First Municipal District, Chicago
Hon. Iain D. Johnston, Magistrate Judge, Northern District of Illinois, Rockford

Wrap Up Cocktail Reception

Seminars

Report on Website Posting Compliance

Monday, November 24, 2014 Julie Tappendorf

The Illinois Press Association recently released a report on local government compliance with the Open Meetings Act. The IPA collaborated with the Citizen Advocacy Center (CAC) on the study, which looks at government compliance with the OMA's website posting requirements. You can read the report on the IPA's website here. The stated purpose of their collaboration is to "illustrate the need for meaningful enforcement provisions within Illinois' Open Meetings Act website posting provisions."

You may recall that we have reported in the past about the OMA's website posting requirements in a post called 10 Website Posting Requirements. The IPA/CAC report focuses on the first few requirements in our blog post relating to the posting of notices, agendas, and minutes. The OMA requires public bodies (including municipalities, schools, parks, libraries, townships, counties, and other government entities) to post notices, agendas, and minutes if the public body (1) has a website and (2) that website is maintained by the full-time staff of the public body.

In researching their report, the IPA and CAC conducted a random sampling of 20 counties, 298 townships, 176 school districts, and 262 municipalities to see whether they complied. They determined that 51% of the public bodies surveyed had a website. Of those public bodies (with at least one full-time employee), they determined that 77% complied with notice posting requirements, 64% with agenda posting requirements, and 54% with meeting minute posting requirements. The report concludes that compliance with website posting requirements of the sample public bodies was "poor," and that the OMA does not contain sufficient remedial measures for lack of compliance.

The problem with the study? The IPA and CAC interpreted the OMA to mean that if a public body had a full-time employee (any employee, whether or not that employee was actually staffed to maintain the website), that meant that the employee had a continuing responsibility to keep the website updated. They assumed that if a public body had any full-time employee, they triggered the OMA website posting requirements. But that is not what the OMA says.

Instead, the website posting requirement for meeting notices states as follows:

[A] public body that has a website that the full-time staff of the public body maintains shall post notice on its website of all meetings of the governing body of the public body.

Contrary to the IPA and CAC's interpretation, the language does not apply to every public body with at least one full-time employee. To the contrary, the language specifically states that the public body must have a full-time employee who maintains the website for the law to apply. Public bodies with websites often use interns, part-time staff or officials, or retain outside consultants to maintain and update their websites - in those cases, the OMA website posting requirement simply does not apply, regardless of how many full-time staff members the public body employs.

The report does acknowledge that they have taken a very liberal interpretation of the OMA and that their interpretation has not been approved by a court or the Public Access Counselor, the two entities charged with enforcement of the OMA. In determining which of the sampled public bodies had full-time employees, they filed FOIA requests asking for a list of all current full-time employees and their titles. Oddly, the FOIA request did not ask whether any of those employees actually maintained the website - a simple follow-up question that would have followed the language of the statute. Instead, the IPA/CAC assumed for purposes of analyzing the public body's websites for compliance that every public body with at least one full-time employee triggered compliance with the OMA. But, that is not what the OMA says.

The report does acknowledge that there may be another interpretation of the OMA - that the website posting requirement only applies to a public body that (1) has a website, and (2) that employs at least one full-time staff member whose duties include maintaining the website. Inexplicably, the IPA and CAC rejected that interpretation for purposes of their analysis and conclusions.

Because the report is based on an unsupported and arguably flawed interpretation of the website posting requirements, it does not provide a true report of public body compliance with the OMA. Not one court case or PAC opinion supports the IPA/CAC interpretation that all public bodies with full-time employees are obligated to comply with the website posting requirements. The OMA provides that only those public bodies that have a website that is maintained by the full-time staff are covered by these requirements. As a result, the IPA and CAC report does not appear to provide much in the way of meaningful data or conclusions on website posting compliance.

Post Authored by Julie Tappendorf

Open Meetings

Friday, November 21, 2014

Religious Discrimination Case Against University Dismissed

Friday, November 21, 2014 Julie Tappendorf

A Jewish religious organization (Chabad-Lubavitch) was barred from contracting with the University and its contractors after an investigation discovered that the organization was allowing underage students to drink at various functions at the Tannenbaum Chabad House. The religious organization sued the University, claiming that the disaffiliation violated the organization's civil rights by discriminating against the organization on the basis of religion - specifically, the group argued that the University's actions were motivated by hostility to the Chabad sect. The district court dismissed the case, finding no discrimination in the University's actions.

On appeal, the 7th Circuit Court of Appeals also ruled against the religious group. First, the court determined that religious discrimination is not covered by sections 1981 and 1982 of the Civil Rights Act. Second, the court found no evidence that the University was hostile against the Chabad sect, or Judaism in general. Instead, the University took action against the group because of its irresponsible attitude towards excessive underage drinking at the Chabad house. Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (7th Cir. Nov. 6, 2014).

Post Authored by Julie Tappendorf

From The Workplace Report with Ancel Glink: NLRB Draws the Line on Employer Social Media Bashing:

Thursday, November 20, 2014

Employees Not Protected for Social Media Insubordination

Thursday, November 20, 2014 Julie Tappendorf

We've posted in the past about "employees behaving badly" on social media. Many of these cases end up at the National Labor Review Board. Although the NLRB doesn't have jurisdiction over local governments, Illinois public sector labor boards do look at NLRB precedent in applying the Illinois Labor Relations Act and the Illinois Educational Labor Relations Act, so it's worth being familiar with these NLRB decisions.

In a recent ruling, the NLRB said "enough is enough" to two seasonal employees of a not-for-profit youth organization in San Francisco. The NLRB upheld an administrative law judge’s dismissal of a complaint against the Richmond District Neighborhood Center when is failed to rehire two seasonal employees. The employees had previously met with their supervisor to share comments and criticisms about the organization. Later, two of the employees, Moore and Callaghan, exchanged critical comments about the Center on Facebook, including the following:

Moore: I’m goin’ to be a activity leader I’m not doing the t.c. let them figure it out and they start loosin' kids I ain’t help'n HAHA.

Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f**k it up. I would hate to be the person taking your old job.

Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho shawn gone its still hella stuck up ppl there that don’t appreciate nothing.

Callaghan: You right. They don’t appreciate sh*t. That’s why this year all I wanna do is sh*t on my own. Have parties all year and not get the office people involved. Just do it nd pretend thay are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help.

Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids.

Upon reviewing the Facebook exchange, the Center decided not to rehire these employees. The employees filed a charge with the NLRB claiming that they were not rehired as a result of their protected activity in criticizing their employer. The ALJ found in favor of the employer and determined that the employees’ grossly insubordinate behavior was outside of the protection of the Act. The NLRB agreed with the ALJ that the employees had engaged in concerted action, but that they had forfeited any legal protection under the NLRA when they made comments indicating that they intended to be uncooperative or insubordinate to their employer.

The NLRB agreed with the ALJ that it is well established that employees (whether unionized or not) have a right to engage in concerted activity for their mutual aid or protection, and employees “may take action to spotlight their complaint and obtain a remedy.” When Callaghan and Moore joined with other employees to describe their complaints to a supervisor, they were engaged in protected concerted activity, the ALJ found. The NLRB agreed with the ALJ though, that notwithstanding the employee’s right to air their complaints, these employees went too far when their comments evidenced a plan to disrupt operations of the Center and to engage in insubordination. The Center was able to show that it would suffer if the employees were rehired because it would jeopardize grants and other funding of the organization. Ultimately, the NLRB agreed with the ALJ’s finding that the concerted activity was not protected.

This ruling draws a "line in the sand" for employees. They can be critical of their employer, but they can’t have protection if their comments reflect insubordinate activity, especially if that would jeopardize operations of the employer.

Read more about this ruling on The Workplace Report here.

Constitutional Issues / Personnel

Wednesday, November 19, 2014

Court Rules Against PAC

Wednesday, November 19, 2014 Julie Tappendorf

You may remember that earlier this year, we posted about PAC opinion 14-001, where the PAC found a school district in violation of the Open Meetings Act for failing to adequately discuss the significance of approving a separation agreement prior to the school board voting on it. The district appealed to the circuit court, which found ruled against the PAC, finding that its opinion was not consistent with the OMA in Board of Education of Springfield v. Attorney General.

Both the trial court decision and the PAC opinion turned on the interpretation of Section 2 (e) of the OMA, which requires a public recitation of the nature of the matter being discussed prior to a vote on an agenda item. In its opinion, the PAC interpreted that section to require the school board to "provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to consider action taken. " Although the school board had, in fact, engaged in a discussion prior to voting on the agreement, the PAC found the board in violation of this section of the OMA for failing to explain to the public the significance of approving the separation agreement.

The court, however, disagreed with the PAC's interpretation, finding no support in Illinois law for "such an expansion of the requirements of Section 2 (e) of the Open Meetings Act." The court noted that not only did board members engage in discussion before voting, they had also posted a copy of the agreement five days before the meeting.

This is a good result for public bodies and it's the right one. The PAC's expansive reading of the OMA to require an explanation of the significance of an agenda item prior to voting is simply not consistent with the OMA nor common practices of public bodies. That interpretation also created uncertainty for public bodies in their use of consent agendas.

The PAC filed a notice of appeal to the appellate court on October 27, 2014, so this case is not over. We will keep you posted.

Post authored by Julie Tappendorf

Open Meetings

Tuesday, November 18, 2014

City Not Obligated to Indemnify Attorneys' Fee Award

Tuesday, November 18, 2014 Julie Tappendorf

The 7th Circuit recently reversed the ruling of a trial court judge that awarded attorneys' fees in an excessive force case. In Winston v. O'Brien (7th Cir. Nov. 7, 2014), a person detained at a Chicago police station alleged that he was tasered repeatedly and punched while in handcuffs. He sued two Chicago police officers for using excessive force, and the jury awarded him $1.00 in compensatory damages and $7,500 in punitive damages against one of the officers. The district court ordered the City to pay Winston's attorney’s fees of $187,467.00, along with an additional $90,777.00, associated with the legal work involved in trying to collect the fees.

Winston then filed a petition seeking to make the City responsible to pay the attorneys' fee award, arguing that the City was required to pay for fees under state law (745 ILCS 10/9-102):

A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney’s fees and costs) for which it or an employee, while acting within the scope of his employment is liable in the manner provided in this Article. (Emphasis added)

On appeal, the City argued that the district court lacked authority to hold the City responsible for the attorneys' fee award against the officer. The 7th Circuit Court of Appeals ruled in favor of the City, finding that state law does not mandate indemnification of attorneys' fees - instead, the language of section 9-102 states that municipalities "may pay any associated attorney's fees and costs." The court also rejected Winston's argument that a union agreement mandated indemnification of the attorneys' fee award against the officer. As a result, the court concluded that the district court erred in ordering the City to pay the officer's attorneys fee award.

Sometimes, in cases of this nature, where a good settlement of all claims can be reached, the punitive damage claim is dropped, but the amount paid reflects the presence of the punitive damage claim. The Winston case tells us that Illinois governmental bodies are not authorized to pay either punitive damages or plaintiff’s attorney’s fees incurred in producing punitive damage judgments. Governments have complete discretion as to whether attorney’s fees or costs will be paid in civil rights cases where a plaintiff is awarded significant compensatory damages. When a very small amount of compensatory damages are awarded in a case that does not establish some important principle of federal constitutional law, the courts will generally resist awarding any significant amount of fees. Governments choosing not to pay attorneys fees need to consider the morale factor, since the plaintiff can personally pursue the assets of the public employee defendant whose actions caused the civil rights judgment. One final wrinkle to this rule is that, in some instances, either conventional insurance policies or scope of coverage of governmental self-insurance pools may more clearly obligated themselves above the level of the Illinois statutes to pay awarded attorney’s fees

Post Authored by Stewart Diamond, Ancel Glink

Monday, November 17, 2014

Electoral Board Disqualified for Interest in Term Limits Referendum

Monday, November 17, 2014 Julie Tappendorf

Ken Zurek and others collected more than 700 signatures to place a term limit referendum on the ballot in the Village of Franklin Park. A petition was filed to object to the proposed referendum, alleging that the ballot question was ambiguous. Under the Election Code, the Franklin Park electoral board would hear and decide the objections. The electoral board consists of the village president, senior trustee, and clerk. Although Zurek objected to the make-up of the board, arguing that they should be disqualified because of their interest in the question, the board rejected that argument and denied Zurek's objection to the referendum question.

Zurek appealed to the circuit court, arguing that the members of the electoral board should have been replaced with public members, arguing that all three members have an interest in referendum question since the issue of term limits would affect them. The electoral board responded that state statute did not provide for disqualification of electoral board members unless they were candidates for office with relation to the objection. The circuit court agreed and upheld the electoral board's decision.

On appeal, however, the appellate court held that the village president, senior trustee, and clerk should have been disqualified from serving on the electoral board. Zurek v. Franklin Park Officers Electoral Board, 2014 IL App (1st) 142618. The court analyzed the disqualification language in state statute. Although the petition before the electoral board was not that of an opposing candidate, the court nevertheless that the term limits referendum was "in relation to" their candidacy. As a result, the court held that the members should have been replaced with public members.

It's interesting to note that the court issued its ruling on November 4, 2014, the election day at which this referendum would have been on the ballot had it not been stricken by the electoral board. The court rejected the mootness argument, however, holding that the objection could still be heard post-election (by a newly constituted electoral board made up of public members). If the referendum survives, it would be placed on the ballot at the next election.

Post Authored by Julie Tappendorf, Ancel Glink

Elections