Trip to Vegas Covered By FMLA Leave

Trip to Vegas Covered By FMLA Leave

  Friday, January 31, 2014    Julie Tappendorf

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The Family and Medical Leave Act gives eligible employees a right to 12 workweeks of leave in order to "care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition."  In Ballard v. Chicago Park District, the Seventh Circuit Court of Appeals considered whether the Act protected an employee who traveled to Las Vegas with her terminally ill mother.

Ballard was a former Chicago Park District employee.  According to the case, Ballard acted as the primary caregiver for her mother, who had been diagnosed with end-stage congestive heart failure. In 2008, she requested unpaid leave from the District to accompany her mother to Las Vegas, a trip funded by Fairygodmother Foundation, a nonprofit that works with terminally ill adults.  Although the District denied her leave request, she traveled to Vegas with her mother as planned.  Several months later, the District terminated Ballard for unauthorized absences during her Vegas trip. She sued under the FMLA, and the District argued that Ballard was not eligible for FMLA leave because she did not "care for" her mother in Vegas, and that the trip was not related to medical treatment.

The Seventh Circuit Court of Appeals spent some time interpreting what is meant by the phrase "care for" under the FMLA. The Court disregarded the District's argument that "care for" is limited to medical treatment, finding no such language in the statute. The Court also disagreed with the District's argument that care must be restricted to a particular location such as a patient's home. Instead, the Court looked to the Department of Labor regulations that define "care" by a family member to encompass activities such as "basic medical, hygienic, or nutritional needs or safety." In this case, the Court held that Ballard's mother's "basic medical, hygienic, and nutritional needs" were the same in Vegas as they would be at home, and that Ballard's assistance was necessary during the trip. In short, Ballard's trip to Vegas with her mother fell within the scope of the FMLA. 

Post Authored by Julie Tappendorf, Ancel Glink

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Stewart Diamond Named IICLE Volunteer of the Year - Publications

Stewart Diamond Named IICLE Volunteer of the Year - Publications

  Thursday, January 30, 2014    Julie Tappendorf

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Congratulations to our very own Stewart Diamond, recently named by the Illinois Institute for Continuing Legal Education's (IICLE) as Volunteer of the Year - Publications.

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Annexation Statute of Limitations Does Not Bar Affirmative Defense

Annexation Statute of Limitations Does Not Bar Affirmative Defense

  Thursday, January 30, 2014    Julie Tappendorf

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A municipality filed a lawsuit to disconnect certain property from a library district after the village had annexed those parcels.  The library district responded that because the village failed to follow all of the required statutory procedures for annexation, the parcels should remain within the library district's jurisdiction. Specifically, the district claimed that the village failed to file affidavits that it had served the library district trustees with the statutorily required notices. The village argued that the district's defenses were barred by the one-year statute of limitations contained in Section 7-1-46 of the Illinois Municipal Code.  

The trial court agreed with the village, finding that the district was barred from raising procedural deficiencies as a defense after the one year annexation statute of limitations had expired.  On appeal, however, the appellate court reversed, finding that statute of limitations bar stale claims, not defenses based on clear language in the statute that bars the commencement of an action to contest an annexation but makes no mention of defending against such a challenge.  Stivers v. Bean, 2014 IL App (4th) 130255

Post Authored by Julie Tappendorf, Ancel Glink

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Lawsuit Challenges Constitutionality of Illinois' Pension Reform

Lawsuit Challenges Constitutionality of Illinois' Pension Reform

  Wednesday, January 29, 2014    Julie Tappendorf

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Coming as no big surprise to Illinois residents and others, a group called "We Are One Illinois Coalition" and a number of named plaintiffs just filed a lawsuit against Governor Quinn, Comptroller Topinka, Treasurer Rutherford, and others challenging the constitutionality of P.A. 98-0599, the pension reform legislation signed into legislation on December 5, 2013. The complaint was filed in the Sangamon County circuit court and challenges the constitutionality of the pension reform law on a variety of grounds, similar to lawsuits filed by other groups against the new law. Harrison v. Quinn, No. 2014 CH 00048.  

According to the complaint, the individually named plaintiffs are currently or were previously employed by the State of Illinois in a variety of jobs, including librarians, teachers, information systems analysts, public service representatives, and corrections officers, and are members of the Teachers' Retirement System of the State of Illinois (TRS), the State Employees' Retirement System of Illinois (SERS), or the State Universities Retirement System of Illinois (SURS).  "We Are One Illinois Coalition" is a coalition of labor unions formed to protect employee pensions. The lawsuit is also brought on behalf of  more than 621,000 other class members. 

First, plaintiffs allege that P.A. 98-0599 unlawfully amends various provisions of the pension code, including changes to automatic annual increases and increasing the eligible age of retirement, among others. Those changes, according to plaintiffs, violate the pension clause of the Illinois constitution that provides as follows: 

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.  (Ill. Const. 1970, art. XIII, s. 5)

Plaintiffs also claim that P.A. 98-0599 violates the contracts clause of the Illinois constitution because it interferes with contractual relationships between the members and SERS, SURS, and TRS.  

Finally, plaintiffs claim that the pension reform statute violates the "takings clause" of the Illinois constitution that states that "[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law" because the State has not offered consideration to pension members to compensate them for the impairment to their pension benefits.

The plaintiffs ask that the court declare the pension reform statute unconstitutional, enjoin the State from implementing the law, and award damages to the members as compensation for their losses.

Post Authored by Julie Tappendorf, Ancel Glink

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University Search of Dorm Room Upheld

University Search of Dorm Room Upheld

  Tuesday, January 28, 2014    Julie Tappendorf

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Like many other universities, Indiana University has established an inspection program that allows resident advisers (RAs) to search student dorm rooms with 24 hours advance notice. A sophomore received one of those notices a week in advance of an inspection of his dorm room. Apparently, he ignored the notice, and the inspection uncovered drug paraphenalia (four pipes, two bongs, and a grow light). The search also found a six-foot-high marijuana plant growing in his closet.  The student was suspended, but granted reentry after a year suspension. 

The student filed suit against the university and the RAs, claiming that the school violated his Fourth Amendment  rights by searching his room.  He also sought damages from the RAs.

The Seventh Circuit found no merit to the student's due process claim, determining that the "in-your-face flagrancy" of the student's violation of university rules (that he had plenty of notice were being enforced) justified the university's search and later suspension. The Court also determined that the student had given consent to the search as a condition to residing in university housing - he had the opportunity to live in off-campus housing and avoid being subject to the university searches.  

In conclusion, the Court found the student's case "near frivolous" and his decision to sue the RAs offensive, and affirmed the district court's dismissal of the case.  Medlock v. Trustees of Indiana University

Post Authored by Julie Tappendorf, Ancel Glink

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Court Strikes Down Indianapolis Ordinance Restricting Hours of Adult Bookstores

Court Strikes Down Indianapolis Ordinance Restricting Hours of Adult Bookstores

  Monday, January 27, 2014    Julie Tappendorf

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Strip clubs, adult book stores, and other sexually-oriented businesses receive a great deal of constitutional protection by the courts under the First Amendment. Last week, the Seventh Circuit Court of Appeals expanded that protection when it struck down the City of Indianapolis' ordinance that restricts the hours of operation for adult businesses.  Specifically, the City's ordinance requires adult bookstores to close between the hours of midnight and 10:00 a.m. each day, and remain closed all day on Sunday.  Annex Books, Inc., the operator of an adult bookstore in Indianapolis, challenged that ordinance as a violation of its First Amendment rights.  The district court had previously upheld the ordinance, finding that the City's justification (fewer armed robberies at or near adult bookstores) was adequate.  

On appeal, however, the Seventh Circuit Court of Appeals questioned the City's justification, finding it "weak as a statistical matter."  The Court questioned why the regulation only applied to adult bookstores and not other businesses open during these others, such as pharmacies, taverns, and liquor stores.  The Court further stated that the City's obligation is to protect those who choose to visit adult bookstores from robbers, rather than simply close bookstores to reduce that risk. 

The Court concluded that the City failed to justify its hours restriction based on a secondary effects argument because many other businesses (newsstands, convenience stores, and pharmacies) are still permitted to sell reading material during these hours.  In short, the City's regulation was solely based on the content of the adult bookstore's reading materials (i.e., sexually oriented). The ordinance was unconstitutional. Annex Books v. City of Indianapolis (7th Cir. January 24, 2014).

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Bloggers Have Same First Amendment Rights as Mainstream Media

Bloggers Have Same First Amendment Rights as Mainstream Media

  Friday, January 24, 2014    Julie Tappendorf

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From Strategically Social: Bloggers Have Same First Amendment Rights as Mainstream Media:

In Obsidian Finance Group, LLC v. Cox , the Ninth Circuit Court of Appeals held that bloggers enjoy the same First Amendment rights that apply to more traditional journalists.

Blogger Crystal Cox posted a variety of accusations on her blogs alleging that Obsidian Finance Group and a bankruptcy trustee were guilty of fraud, corruption, money-laundering, and other illegal activities in connection with a pending bankruptcy. According to the opinion, Cox had a history of making similar allegations and seeking payoffs in exchange for retraction.  

Obsidian filed a defamation suit against Cox, and the federal district court held that all but one of Cox's blog posts were constitutionally protected opinions. The court allowed the defamation case to continue based on one of Cox's posts that alleged specific factual allegations. Cox argued that her blog post involved a matter of public concern, and that plaintiffs had the burden of proving her negligence in order to recover for defamation.  She alternatively argued that the plaintiffs were public figures so they were required to prove Cox made the statements with "actual malice."  The district court rejected her arguments, first finding that the negligence standard did not apply to her because she was not a journalist.  The court also held that the plaintiffs were not public figures. At the end of the trial, a jury ruled in favor of the plaintiffs, awarding them $2.5 million collectively.

On appeal, the court of appeals first reviewed the Supreme Court's standards for defamation cases. For defamation involving public officials, the plaintiff has to show "actual malice" of the defendant.  NY Times v. Sullivan.  For private defamation, the plaintiff must show negligence. Gertz v. Robert Welch.  The court of appeals rejected the plaintiffs' argument that the Gertz negligence standard only applies to institutional press, finding that although those cases had not addressed internet publication, the same standards should apply. The court of appeals cited to the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission - "With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred."    

Because the district court had not applied the correct standard (negligence), the court remanded the case back to the district court.

Post Authored by Julie Tappendorf, Ancel Glink

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Arrest Booking Fee Upheld by 7th Circuit

Arrest Booking Fee Upheld by 7th Circuit

  Thursday, January 23, 2014    Julie Tappendorf

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The Village of Woodridge had an ordinance in place that imposed a $30 booking fee on individuals who are arrested in the Village. That fee was imposed on plaintiff after he was arrested for retail theft in 2011. The plaintiff filed a class action civil rights lawsuit against the Village to challenge the fee, claiming the fee violated both the procedural and substantive due process rights. The district court dismissed the case, and the Seventh Circuit Court of Appeals affirmed in Markadonatos v. Village of Woodridge (7th Cir., Jan. 8, 2014).

Although the Court acknowledged that the fee was imposed without hearing or any other procedure, it determined that the need for a hearing in this situation was extremely low because there was practically no risk of an erroneous deprivation in imposing the $30 fee. The fee was only imposed upon plaintiff's arrest, which he did not challenge. The Court also determined that the government had sufficient interest in imposing the $30 fee to offset a portion of the administrative costs incurred in processing arrested individuals. As a result, the balance weighed in favor of the Village, and the district court properly dismissed the due process claims.

Justice Hamilton dissented to the majority opinion.  In his opinion, the booking fee ordinance was unconstitutional on its face because it takes property from all arrestees - guilty and innocent - without due process of law, because it imposes "punishment" (in the form of the booking fee) before a verdict.

Post Authored by Julie Tappendorf, Ancel Glink

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Winter 2014 Issue of "In the Zone" Released

Winter 2014 Issue of "In the Zone" Released

  Wednesday, January 22, 2014    Julie Tappendorf

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Ancel Glink's land use group just released its winter edition of the In the Zone e-newsletter. This issue contains a number of land-use related articles of interest to municipal planners, government officials, developers, and other land use professionals, including the following:

• Why Food Trucks May be the Best Way to Introduce "Placemaking" Strategies in Your Community
• Municipalities Should Review Bans on Gun Shops and Sales After Court Strikes Down Chicago Ban
• School District Must Comply with Local Zoning
• Court Decides Annexation Dispute Between Competing Municipalities

You can read the entire newsletter here, and subscribe to receive future issues of the e-newsletter here.

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Candidate Cannot Run for County Office While Under Court Supervision

Candidate Cannot Run for County Office While Under Court Supervision

  Tuesday, January 21, 2014    Julie Tappendorf

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Last week, the Cook County Officers Electoral Board voted 3-0 to remove the name of convicted felon Alfred “Al” Sanchez from the 2014 primary election ballot. The electoral board found that Sanchez was ineligible to be a candidate for Cook County commissioner in the 4^th District – or for any other constitutional office in the state – because he was still under court supervision as part of a 54-month sentence for a felony fraud conviction related to his activities as the former commissioner of the Chicago Department of Streets and Sanitation.

Illinois law allows ex-cons to hold most non-municipal elected offices, including county board seats and state offices like governor and state representative. However, Article VIII, Section 1, of the Illinois Constitution, and section 5-5-5(b) of the Illinois Uniform Code of Corrections, prohibit a convicted felon from holding any office created by the Constitution “until the completion of his sentence.” Since Sanchez was still serving his sentence when he swore under oath on this statement of candidacy form that he was, at that moment, legally qualified to hold the office he was seeking, his nomination papers included a false swearing and were therefore legally invalid.

Full disclosure:  Ancel Glink Attorney Adam Lasker litigated this case before the Electoral Board on behalf of the resident who filed the petition objecting to Sanchez’s candidacy. 

Here is some newspaper coverage of the electoral board action:

Chicago Tribune (Jan. 17, 2014):

Convicted ex-Streets and Sanitation boss thrown off ballot

Chicago Sun-Times (Jan. 17, 2014):

Al Sanchez, convicted ex-Streets and San chief, kicked off ballot

Chicago Tribune (Jan. 9, 2014):

Sanchez, a convicted felon, fights to stay on Cook County ballot

Chicago Sun-Times (Jan. 7, 2014):

Conviction could knock Sanchez off County Board ballot

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Municipalities Should Review Gun Shop Bans After Court Strikes Down Chicago Ban

Municipalities Should Review Gun Shop Bans After Court Strikes Down Chicago Ban

  Monday, January 20, 2014    Julie Tappendorf

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Recently, a federal court struck down Chicago's sweeping ban on gun sales and transfers in Illinois Ass'n of Firearms Retailers v. City of Chicago, 2014 WL 31339 (N.D. Ill. Jan. 6, 2014). The City's ban on the sale or transfer of firearms, except in the case of inheritance, was challenged by gun dealers under the Second Amendment. 

The district court found that the City failed to establish that the ordinance regulates activity generally understood to be unprotected by the Second Amendment in 1791. Next, the Court went on to test the justifications for the City's ban under heightened, but “not quite strict scrutiny,” due to the number of people affected and the heavy burden on the core Second Amendment right. In arguing for lesser scrutiny, the City pointed to the fact that gun purchases could be completed in the suburbs. The Court rejected this argument, citing the line of First Amendment cases requiring alternative channels "within the city."

The City argued that its ban on gun transfers was justified by its desire to (1) restrict criminals’ access to licensed dealers; (2) restrict gun acquisition in the illegal market; and (3) eliminate gun stores from Chicago, which are dangerous in themselves and cannot be safely regulated. Even if licensed dealers gave criminals more access to guns, the City could have used a more focused regulation that would not have burdened the rights of non-criminals. Next, the Court found the sales-and-transfer ban does not significantly reduce illegal-market gun acquisition by increasing the frictions inherent in illegal sales. Finally, the Court rejected the City's argument that a complete ban is required based on the supposed ineffectiveness of ATF in regulating gun dealers. Additionally, possible burglaries at gun shops do not justify a sweeping ban on gun sales and transfers. The City offered no evidence to justify its ban on the transfer of guns as gifts.

While the Court rejected the Chicago ban, it concluded that “nothing in this opinion prevents the City from considering other regulations—short of the complete ban—on sales and transfers of firearms to minimize the access of criminals to firearms and to track the ownership of firearms.” Chicago has decided not to appeal this decision, which means that it will not be binding on other courts.

Nevertheless, a complete prohibition on gun sales and gun shops will likely draw a Second Amendment challenge, and municipalities should review their ordinances to ensure such a ban is not on their books. Zoning codes may unintentionally prohibit gun shops, by omitting “gun shops” and “sporting goods stores” from lists of permitted and special uses. While no court has held that a gun shop must be located in every town, firearms retailers may be emboldened by the Chicago decision, and municipalities may wish to consider appropriate locations for such uses within their limits to avoid becoming the next Second Amendment test case. At least one federal court (in California)  has upheld local zoning restrictions for gun shops. Teixeira v. Cnty. of Alameda (requiring sale of guns to occur at least 500 feet away from schools, residences, establishments that sell liquor, and other gun stores). Sales of “dangerous and unusual weapons” such as machine guns and short-barrel shotguns may be prohibited. D.C. v. Heller; see also 720 ILCS 5/24-1.   

While municipalities might be tempted to tax gun sales, Cook County’s $25 gun tax is being challenged under the Second Amendment, and the preemption provisions of the Firearm Concealed Carry Act. ERP Inc. v. Ali.

Post Authored by Daniel J. Bolin, Ancel Glink

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Voter Approval Required For Cell Tower Lease

Voter Approval Required For Cell Tower Lease

  Friday, January 17, 2014    Julie Tappendorf

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The Ninth Circuit Court of Appeals recently upheld a city requirement that a cellular provider obtain voter approval before installing a cell tower in a City park. Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) The ballot approval requirement, called Measure C, is part of the City's charter and provides as follows:

No . . . structure costing more than $100,000.00 may be built on or in any park or beach or portion thereof . . . unless authorized by the affirmative votes of at least a majority of the total membership of the City Council and by the affirmative vote of at least a majority of the electors voting on such proposition at a general or special election at which such proposition is submitted.

The cellular provider refused to comply, claiming that federal law preempted the City's voter approval requirement. The appellate court disagreed, holding that the federal law "applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner." The local requirement was not preempted because it only related to the lease of City land, not zoning or land use approvals. 

Hat tip to the IMLA Appellate Practice Blog for reporting on this case.

Post Authored by Julie Tappendorf, Ancel Glink

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Attention Township Assessors - Adopt Your Personnel Rules

Attention Township Assessors - Adopt Your Personnel Rules

  Thursday, January 16, 2014    Julie Tappendorf

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Congratulations to all of our township assessor friends who were installed into office recently.

Please be reminded that, under Section 2-65 of the Illinois Township Code, every township assessor with 5 or more deputies and other employees must adopt rules concerning all benefits available to employees and file them with the township clerk.  Generally, this is accomplished through the adoption of a personnel policy manual.  The rules must include, at a minimum, the following benefits to the extent they are applicable: insurance coverage, compensation, overtime pay, compensatory time off, holidays, vacations, sick leave, and maternity leave.  You should also make sure that any prior rules that you have adopted comply with the provisions of the Affordable Care Act.  In addition, if you have union employees, you may have certain bargaining obligations related to the rule changes.  

The rules must be adopted and filed with the township clerk within 4 months after the assessor takes office. Multi-township assessors must file the rules with the clerk of each township in their district.  If you amend the rules at all, you must also file the amendments with the appropriate township clerk or clerks by their effective date.

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

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Freddie Mac and Fannie Mae Exempt from Real Estate Transfer Tax

Freddie Mac and Fannie Mae Exempt from Real Estate Transfer Tax

  Wednesday, January 15, 2014    Julie Tappendorf

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In DeKalb County v. Federal Housing Finance Agency, the Seventh Circuit Court of Appeals ruled that the states of Illinois and Wisconsin, and their county governments, cannot impose a real estate transfer tax on the sale of foreclosed properties by Fannie Mae and Freddie Mac. The court held that the federal statutory exemption from all taxation except taxes on real property applied in this case because the real estate transfer tax was not a real property tax, but a transfer tax.

Post Authored by Julie Tappendorf, Ancel Glink

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Rules for Concealed Carry Signs Expected to Receive Final Approval

Rules for Concealed Carry Signs Expected to Receive Final Approval

  Tuesday, January 14, 2014    Julie Tappendorf

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As we have previously reported, a sign approved by Illinois State Police (“ISP”) must be “clearly and conspicuously” posted at the entrance of any area where firearm possession by concealed carry licensees is prohibited under the Firearm Concealed Carry Act, except for private residences. These “prohibited areas” include government buildings, schools and areas within 1,000 feet of school grounds, parks and playgrounds, public gatherings requiring a permit, and libraries. The Act became effective on July 9, 2013, and ISP later posted a sign on its website, but the administrative rules relating to signage have not yet been adopted.

The administrative rules for concealed carry signs are expected to be published in the Illinois Register on Friday, January 17, 2014. The proposed rules would allow prohibited areas to utilize signage larger than 4” x 6”.  Additionally, the rules would allow additional language on the signs. However, ISP’s approved form must appear on the sign no smaller than the 4” x 6” dimension required by the Act. Meanwhile, ISP has accepted over 11,000 concealed carry license applications, which must be approved or denied by ISP within 90 days. With the forthcoming adoption of the concealed carry rules, and the approval of the first concealed carry licenses, the required signs should be “clearly and conspicuously” posted at the entrance of any prohibited area (except private residences), if they have not been posted already.

The Act and the proposed rules do not define an “entrance” to a prohibited area. Entrances to buildings are usually easy to identify, but entrances to “real property” and “parking areas” will probably need to be evaluated on a case-by-case basis.  Where the statute requires posting at “the entrance,” rather than “every entrance,” posting the sign at the main entrance to each building, property, or parking area classified as a “prohibited area” would likely satisfy requirements of the Act.

Post Authored by Daniel J. Bolin, Ancel Glink

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Ancel Glink to Speak at Park District Conference

Ancel Glink to Speak at Park District Conference

  Monday, January 13, 2014    Julie Tappendorf

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The 2014 IAPD/IPRA Soaring to New Heights Conference is scheduled to take place on January 24-25, 2014, at the Hyatt Regency in Chicago.  For park district officials and employees, as well as those who work with park districts, this conference is an annual "must attend" event. 

 

This year, Ancel Glink attorneys will be presenting 16 sessions at the conference, as follows:

 

#110 -  Legal/Legislative Update

#118 - Practices and Procedures for Effective Board Meetings

#119 -  Hiring and Firing: Reducing Litigation Expenses

#120 - Park Board Wars: A Reality Show

#114 - Executive Director Evaluations

#121 -  How to Avoid Litigation Issues: Learn to Not Step in Bear Traps

#122 - Intergovernmental Agreements: Getting the Best Deal for Your Side

#123 - Director Contracts: Hiring and Exiting Contracts

#124 - Park District Use of Social Media: Navigating the Legal Landscape

#125 -  Personnel Policy Manuals: Tips and Tricks to Make Less Litigation and Better Accountability in Your Manual

#126 -  Guns, Drugs and E-Cigarettes: How is it Impacting Park Safety and Your Work Environment 

#127 -  Obamacare: Impacting Park Districts

#128 - Your Employees Are On Social Media: What Can You Do About It?

#204 - Picture Perfect Procurement: A Primer on Purchasing Procedures, Policies and Possibilities

#307 -  Nuts and Bolts of Finance Ordinance Procedure

#424 -  Dealing with Bullying

You can register for the conference here and get a preview of the sessions here.

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Another First Amendment Retaliation Case Involving a Police Officer

Another First Amendment Retaliation Case Involving a Police Officer

  Friday, January 10, 2014    Julie Tappendorf

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The courts certainly has been active lately in deciding First Amendment cases involving police officers.  In the latest case, Swetlik v. Crawford, (7th Cir. Dec. 23, 2013), the 7th Circuit Court of Appeals ruled against a police detective who brought a First Amendment lawsuit against a City and City officials for bringing charges against him for allegedly lying about the police chief's conduct.

 

The dispute that lead to the charges against the detective is interesting.  According to the opinion, police arrested a suspect and brought him into custody.  The suspect refused to eat, so the police chief arranged for a home-cooked meal to be delivered to the suspect at the station; however, the suspect had already been taken to the jail.  In a conversation following the transport, the chief expressed his disappointment with the detective's failure to return the suspect to the station as requested by the chief.  The detective's interpreted the chief's final words to him - "I will deal with you later" - as a threat, and reported the chief to the deputy chief.  When the deputy chief failed to take any action, the union filed 37 grievances against the chief.  The mayor ordered an investigation, which resulted in a recommendation that both the detective and the chief be terminated. Charges against both officers were brought to the police and fire commission. The detective was placed on paid administrative leave pending the outcome of the commission proceedings. At the conclusion of the hearing, the hearing officer recommended dismissal of the charges.  Shortly thereafter, the detective brought this suit against the Mayor, City Council, and the City for violations of his First Amendment rights.

 

The district court ruled in favor of the City defendants, finding that the detective's statements were not protected speech because they did not address a matter of public concern and, in any event,  the City was justified for bringing the charges against the detective. 

 

On appeal, the 7th Circuit first rejected the City official's argument that absolute immunity applied, holding that absolute immunity is not available in employment decisions. Second, the 7th Circuit applied the First Amendment retaliation test to determine whether (1) his speech was constitutionally protected; (2) the detective suffered a deprivation likely to deter speech; and (3) his speech was a motivating factor in the employer's action.   Although the detective's speech did address a matter of public concern, the City defendants' interest in bringing charges for the detective's conduct (lying about the chief) was justified and outweighed the detective's interest in making statements.  As a result, the detective's First Amendment rights were not violated when he was brought up on charges.

For local government officials, the more relevant discussion is contained in Judge Easterbrook's concurring opinion.  While he agrees with the outcome of the case, he asserts that because elected officials (Mayor and City Council members) have a First Amendment protected right to bring charges against the police officers, they should not have been sued for exercising their constitutional rights. He would have dismissed the case on those grounds rather than get to the merits.

 

Post Authored by Julie Tappendorf, Ancel Glink

 

 

 

 

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City Did Not Violate Officer's First Amendment Rights in Removing him from K-9 Team

City Did Not Violate Officer's First Amendment Rights in Removing him from K-9 Team

  Thursday, January 09, 2014    Julie Tappendorf

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In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit Court of Appeals reversed the district court's ruling against the City in a Section 1983 action.

 

The case involved a city police officer who noticed that members of his SWAT team were often firing their weapons accidentally and negligently. The officer raised his concerns about the actions of his team through e-mails and raising the issue in department meetings. Eventually, Hagen was removed from the K-9 team, and he filed a lawsuit against the City claiming it violated his First-Amendment rights by retaliating against him for exercising his First Amendment rights. A jury found for the officer, and awarded him $50,000 in compensatory damages and $200,000 in punitive damages.

On appeal, the Ninth Circuit applied the following First Amendment test for public employee speech:

 

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

In this case, the court focused on the second factor: whether the officer spoke as a private citizen or public employee. The court concluded that there was not enough evidence to support the jury’s finding that the officer spoke as a private citizen. Here, the officer raised his complaints with his supervisors and department, not to the public at large.  As a result, his speech was not protected, and the City did not violate the officer's First Amendment rights.

 

Post Authored by Julie Tappendorf, Ancel Glink

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Court Decides Annexation Dispute Between Competing Municipalities

Court Decides Annexation Dispute Between Competing Municipalities

  Wednesday, January 08, 2014    Julie Tappendorf

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In a Rule 23 order, an appellate court recently addressed an annexation dispute involving competing municipalities.  People v. Village of Glendale Heights, 2013 IL App (2d) 13-0472-U (Rule 23 Order).

 

On August 22, 2012, the Village of Glendale Heights provided notice to taxpayers of record that it intended to forcibly annex certain properties to the Village by ordinance at a meeting scheduled for September 6, 2012.  The day before the meeting, the owners of those same properties filed a petition for annexation with the Village of Bloomingdale asking that Bloomingdale annex the property.  On September 6, 2012, Glendale Heights adopted an ordinance annexing the properties and recorded a certified copy of that ordinance on September 12th. 

 

The owners filed a quo warranto lawsuit against Glendale to challenge the annexation. The owners claimed that the voluntary annexation petition submitted to Bloomingdale took priority over the involuntary annexation by Glendale Heights. 

 

The trial court agreed, finding that the Bloomingdale annexation had priority.  The trial court ruled on the basis of the common law rule of "priority of annexation" that annexation proceedings must be considered and completed in the order in which they are initiated.  Voluntary annexations are considered initiated when an annexation petition is filed.  Involuntary annexations, on the other hand, are not "initiated" until the municipality adopts the annexation ordinance.  According to teh trial court, because the voluntary annexation was initiated the day before Glendale Heights adopted its ordinance, the annexation petition filed with Bloomingdale had priority and Glendale Heights' annexation was void.

 

On appeal, the appellate court first reviewed the various methods of annexation permitted by state law.  The process used by Glendale Heights (65 ILCS 5/7-1-13) allows a municipality to forcibly annex territory that is 60 acres or less in size and is wholly bounded by one or more municipalities upon providing mailed notice to the taxpayers of record and others, and publication of notice in the newspaper.  That statute also provides that "no other municipality may annex the proposed territory for a period of 60 days from the date the notice is mailed or delivered to the taxpayer of record."  There is an exception allowing another municipality to annex the property if a voluntary annexation procedure is initiated prior to publication and mailing of the notices for the involuntary annexation.

 

Although the trial court based its ruling on "priority" rules, the appellate court determined that priority was not at issue in this case.  Instead, the appellate court determined that the question at issue was simply whether Glendale Heights had the authority to annex the territory.  The appellate court said yes, finding that Glendale Heights met its burden of showing it complied with 7-1-13 in annexing the territory.  The court further stated that it need not address the priority issue because priority only becomes relevant when two municipalities have annexed the same territory - here, only Glendale Heights completed annexation.  Consequently, Bloomingdale had no rights in this case, and Glendale Heights' annexation was valid.

 

Post Authored by Julie Tappendorf, Ancel Glink

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Most Popular Blog Posts of 2013

Most Popular Blog Posts of 2013

  Tuesday, January 07, 2014    Julie Tappendorf

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To celebrate 2014, let's reminisce a bit and revisit some of the most popular Municipal Minute blog posts of 2013.

 

10.  The 10th most popular topic of 2013 was our 5/17/13 story discussing the Department of Labor's guidelines regarding when landscaping work will be subject to prevailing wages.

 

9.  Another popular post in 2013 was the 10/7/13 discussion about the PAC's ruling that the Attorney General's denial of a FOIA request based on the unduly burdensome exception was proper.  Maybe others found it interesting that the PAC has the authority to make rulings on its own office's compliance with FOIA?

 

8.  The 8th most popular topic of 2013 involved prayer at city council meetings, which we discussed on 3/26/2013, 5/20/13 and 11/8/13.

 

7.  For number 7, medical marijuana proved to be a pretty popular topic, with posts on 5/23/13, 8/1/13, and 12/13/13.

 

6.  Our 6th most post dealt with the ability of cities to trademark their seals and insignias on 10/25/13.

 

5.  For number 5, many readers liked our post discussing the appellate court ruling that text messages are subject to FOIA and OMA on 7/17/13. 

 

4.  Even more popular were our many posts on Illinois concealed carry law on 6/12/13, 6/13/13, 7/2/13, 9/12/13, and 10/24/13.

 

3.  Our post on the court case ruling that Chicago cannot enforce its vacant property ordinance against mortgages backed by Freddie Mac or Fannie Mae on 8/26/13 was read by many.

 

2.  Our second most popular post was a summary of the U.S. Supreme Court ruling striking down Arizona's voter registration law on 6/17/13.

 

Drumroll please....

 

1.  Our most popular post(s) of 2013 were about the U.S. Supreme Court decision in Koontz v. St. Johns River Water Management District that ruled in favor of a property owner in a constitutional takings challenge of the District's decision on the owner's proposed development.  5/29/13 and 6/25/13.

 

Post Authored by Julie Tappendorf, Ancel Glink

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New Illinois Laws for 2014

New Illinois Laws for 2014

  Monday, January 06, 2014    Julie Tappendorf

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Each New Year brings in new laws and 2014 is no exception.  The General Assembly was busy last year, bringing Illinois residents a number of new laws that become effective January 1, 2014, including the following:

 

1.  Concealed Carry - Starting January 5, 2014, Illinois residents can apply for a permit to allow concealed carry for the first time in the state.  (HB 183)

 

2.  Medical Marijuana - Although the law becomes effective January 1st, the state is still working on the rules and regulations that will apply to dispensaries and cultivation centers.  (HB 1)

3.  Cell Phones - A new law makes it illegal to talk on a cell phone while driving unless via a hands-free device. (HB 1247)
 

 4.  Speed Limits - The maximum speed limit on certain highways will be raised to 70 mph from 65. (SB 2356)

5.  Expanded Voting - 17 year olds may now vote in primaries if they will be 18 by the following general election.  (HB 226)

6.  Social Media Passwords - Schools can no longer ask for a student's social networking password without proper cause.  (HB 64)

7.  Taser Reports and Inspections - Law enforcement agencies will be required to submit to inspections by state officials on the agencies' use of stun guns or Tasers. The Illinois Criminal Justice Information Authority is then required to analyze the data and submit a report to the governor.  (HB 131)

Post Authored by Julie Tappendorf, Ancel Glink

 

 

 

 

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Village Lacked Authority to Regulate Feral Cats

Village Lacked Authority to Regulate Feral Cats

  Friday, January 03, 2014    Julie Tappendorf

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In County of Cook v. Village of Bridgeview, 2013 IL App (1st) 122164-U (Rule 23 order), the Illinois appellate court struck down the Village's feral cat ordinance that prohibits residents from operating feral cat colonies within the Village's corporate limits.  The county had challenged the ordinance because it was inconsistent with the county's own animal control regulations that allow county residents to maintain feral cat colonies provided the residents participate in trap, neuter, and release programs sponsored by humane societies.  The Village argued it had authority to adopt its own regulations pursuant to its home-rule powers.

 

The appellate court first determined that animal control is both a statewide and local concern.  In these cases, a court must consider which unit of government has a "more vital interest" in controlling or regulating in a particular area. In this case, the court determined that the counties have a more vital interest than municipalities in controlling the feral cat population and the spread of rabies.  Consequently, the Village of Bridgeview exceeded its authority by banning feral cat colonies.

Post Authored by Julie Tappendorf, Ancel Glink

 

 

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$20 Million in Museum Grants Available

$20 Million in Museum Grants Available

  Thursday, January 02, 2014    Julie Tappendorf

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The Illinois Department of Natural Resources has announced the next round of capital grants under the Illinois Public Museum Capital Grants Program. Museums that are operated by townships and other units of government are eligible for funding assistance under this grant program to improve museum facilities and develop new exhibits.

 

The maximum grant award for qualifying projects is $750,000. Projects will be reviewed solely on the merit of the application as presented; no changes to the funding request will be initiated during the review process. The level of local matching funds required for each project is based on the level of attendance at the applicant museum during the preceding calendar year. 

 

A total of $20 million will be awarded. The deadline to apply for this round of museum grants is 5:00 pm on Monday, February 3, 2014. Copies of the application forms and more information can be obtained by contacting the Division of Grants, Illinois Department of Natural Resources, One Natural Resources Way, Springfield IL 62702-1271.

 

If you have any questions, you can call the IDNR Grants Office at (217) 782-7481 or email DNR.Grants@Illinois.gov.

Post Authored by Julie Tappendorf, Ancel Glink

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