February 2014 ~ Municipal Minute

Friday, February 28, 2014

School's Hair-Length Policy Violates Title IX

Friday, February 28, 2014 Julie Tappendorf

In an interesting challenge under Title IX (the federal law that protects student athletes from discrimination), the Seventh Circuit Court of Appeals struck down a policy at a middle school that required boy athletes to keep a "clean cut" hairstyle, but had no similar policy for girls. Hayden v. Greensburg Community School Corporation (7th Cir. Feb. 24, 2014).

The case arose from a challenge by one male student athlete who did not want to cut his hair to play basketball. His parents sued the school district on his behalf, alleging that the school's hair-length policy was unconstitutional and violated federal law.

The Seventh Circuit first rejected the student's substantive due process claim that he had a fundamental, liberty right to wear his hair long, finding that he failed to show how the policy had no rational basis. The Court did, however, accept the student's equal protection argument that the hair-length policy discriminated based on sex. The Court determined that the policy only applied to boy athletes, not girls, and the school district failed to show any reason or basis for a "sex-specific grooming standard." For that same reason, the Court also accepted the student's Title IX claim. The case was remanded to the district court to decide the appropriate relief.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues

Thursday, February 27, 2014

Police Can Rely on Co-Tenant Consent for Search

Thursday, February 27, 2014 Julie Tappendorf

Earlier this week, the U.S. Supreme Court issued a ruling in favor of police in a case that should make it easier for police to search a dwelling without a warrant. In Fernandez v. California, (USSCT, Feb. 25, 2014), the court voted 6-3 that police can search a home without a warrant, even if the suspect had previously objected to the search, as long as he is no longer on the scene and a co-tenant gives consent.

Fernandez claimed the search was unconstitutional and the evidence found during the search, including firearms and gang paraphernalia, shouldn't have been admitted at his trial, where he was sentenced to 14 years in prison for robbery.

Justice Alito wrote the majority opinion, finding that the written consent form signed by Fernandez's co-tenant made the search legitimate. The opinion further stated that ruling against the police could create a situation where lawful occupants are prevented from inviting the police into their homes to conduct searches. The opinion continued that "Any other rule would trample on the rights of the occupant who is willing to consent."

Justices Ginsburg, Sotomayor and Kagan all dissented, stating that the majority opinion could result in giving police an incentive to avoid asking a judge for a search warrant.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues

Wednesday, February 26, 2014

No Unconstitutional Search of Officer for Missing Cash

Wednesday, February 26, 2014 Julie Tappendorf

The Seventh Circuit recently ruled in favor of the City of Milwaukee in a lawsuit brought by a police officer who claimed a fellow officer's search of his person was unconstitutional. Carter v. City of Milwaukee (7th Cir. Feb. 19, 2014).

The facts of this case are somewhat unusual, and the Court spends a lot of time discussing the circumstances surrounding the search of the officer, including the officer's (Carter) physical "condition," which at the time of the search, was affected by the officer's use of Colonix, an over-the-counter colon cleansing product Carter was taking for weight loss. It's not clear what Carter's condition had to do with the case, except that it lead to his request to leave the scene that resulted in the search.

The facts are as follows: Carter and other officers were executing a search warrant when one of the apartment's residents accused the police of stealing $1,750 of his cash. The commanding officer ordered all officers to remain on the scene. When Carter, in need of a restroom, asked his supervising officer if he could leave the scene to use the restroom, he was searched for the allegedly missing cash. No cash was found (on Carter or any other officer). Shortly after the incident, Carter sued the City, claiming he was the subject of an unconstitutional search and seizure.

The district court ruled in favor of the City, as did the Seventh Circuit. The Seventh Circuit reviewed the standard for unconstitutional searches, finding that Carter had no reason to believe he would be detained or arrested if he had refused to be searched. Carter had also agreed to the search so he could leave the apartment to use the restroom.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues / Personnel

Tuesday, February 25, 2014

How to Wind Up a TIF District

Tuesday, February 25, 2014 Julie Tappendorf

Winding up a TIF district must be carefully planned and executed. The ambiguity of the Act and the Illinois property tax collection system create pitfalls for the unwary.

Section 3(n)(3) of the Act requires that the redevelopment plan must include the estimated date of completion of the redevelopment project and retirement of obligations issued to finance redevelopment costs,

which shall not be later than December 31 of the year in which payment to the municipal treasurer…is to be made with respect to ad valorem taxes levied in the twenty-third calendar year after the year in which the ordinance approving the redevelopment project is adopted…

This clause is commonly interpreted to mean that the life of a TIF district is 23 years. (It can be extended to 35 years by an act of the General Assembly or in limited circumstances defined in §3(n).)

But what happens at the end of 23 years? Does the TIF district self-destruct? No. The municipality must take certain steps, which must be coordinated with the county clerk.

Buried in Section 8 of the Act is the following paragraph:

Upon the payment of all redevelopment costs, the retirement of obligations, the distribution of any excess monies pursuant to this Section, and final closing of the books and records of the redevelopment project area, the municipality shall adopt an ordinance dissolving the special tax allocation fund for the redevelopment project area and terminating the designation of the redevelopment project area as a redevelopment project area….Municipalities shall notify affected taxing districts prior to November 1 if the redevelopment project area is to be terminated by December 31 of that same year.

So closing a TIF district requires timely notice to affected taxing bodies and adoption of an ordinance. Other steps include declaration of surplus, if any, filing the termination ordinance with the county clerk, and distribution of any surplus to the affected taxing bodies.

The timing of the termination ordinance is driven by the fact that property taxes in Illinois are collected one year in arrears, e.g., taxes levied in calendar 2014 are collected and paid to the municipality in calendar 2015. The language of §3(n)(3) set forth above says that the date of completion of the TIF project and the retirement of obligations may be December 31 of the year in which taxes levied in the 23rd year of the TIF are paid to the municipality by the county. This would be the end of the 24th year after the creation of the TIF district.

Assume for purposes of illustration a TIF district for which the last day of its 23 year lifespan is August 30, 2014. Incremental TIF revenue generated in calendar 2014 will be collected by the county and paid to the municipality in 2015. If the municipality were to adopt and file an ordinance terminating the TIF district on August 30, 2014, it is likely that the county clerk would not calculate or pay TIF increment in 2015. Thus, the municipality would lose the 23rd year of its TIF revenue. The careful practitioner will consult with the county clerk to determine how that official interprets this provision of the Act.

As noted, project costs and debt obligations issued to pay project costs must be paid by December 31 of the 24th year after creation of the TIF district. The ordinance terminating the TIF district must be adopted “Upon payment of all redevelopment costs, [and] the retirement of obligations.” Upon adoption of the ordinance terminating the TIF district, property taxes are to be paid by the county to the affected taxing districts “in the manner applicable in the absence of the adoption of tax increment allocation financing.”

Post Authored by Paul Keller, Ancel Glink

Economic Development

Monday, February 24, 2014

Preexisting Condition Bars Line-of-Duty Disability Pension

Monday, February 24, 2014 Julie Tappendorf

Carillo, a former firefighter/paramedic filed an application for line-of-duty disability benefits after degenerative arthritis in her knee left her unable to work. The pension board conducted a hearing on her application, and awarded her a nonduty disability, not a duty disability. She appealed, and the appellate court upheld the pension board's award, finding that the evidence presented by doctors at the pension board hearing supported the board's decision to deny a line-of-duty disability. That evidence showed that Carillo's knee disability was caused by a history of injuries caused by Carillo's participation in high school and college basketball, and was not aggravated by her duties as a firefighter/paramedic. Carillo v. Park Ridge Firefighters Pension Fund, 2014 IL App (1st) 130656.

The decision is favorable for local governments, and contains a good analysis of how a preexisting condition might affect a line-of-duty disability application.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, February 21, 2014

Free Webinar on Governments & Social Media

Friday, February 21, 2014 Julie Tappendorf

Want to learn more about local governments and social media? Then join me on March 20, 2014, from 1:00 p.m. to 2:00 p.m. (Central) for the following webinar: "Tackling the Legal, Policy, and Archival Issues in SocialGov."

Speakers include blog author Julie Tappendorf of Ancel Glink, Anil Chawla, CEO at ArchiveSocial, and Luke Stowe, Digital Services Coordinator at the City of Evanston. They will discuss best practices for government agencies participating in social media.

You can register by clicking here. It's free, so why would you miss it?

Thursday, February 20, 2014

9th Circuit Strikes Down Concealed Carry Conditions, Sets Up Case for Supreme Court

Thursday, February 20, 2014 Julie Tappendorf

How far does the core Second Amendment right to possess a handgun for self-defense extend beyond the home? Over the past several years, several federal circuits have weighed in on this question, sometimes reaching different conclusions. Compare Madigan v. Moore (7^th Cir. 2013)(right to bear arms implies right to carry loaded gun outside home); with Drake v. Filko (3d Cir. 2013)(regulation of public carry constitutional). The 4th and 2nd Circuits agree with the 3rd. See Woollard v. Gallagher (4th Cir. 2013) and Kachalsky v. County of Westchester (2d Cir. 2012).

Last Thursday, the 9th Circuit came down on the 7th Circuit side, finding that the Second Amendment extends beyond the home, protecting the right of a “responsible, law-abiding citizen . . . to carry a firearm in public for self-defense.” In Peruta v. County of San Diego, concealed carry license applicants challenged San Diego County’s requirement for applicants to show “good cause” to obtain a license. Under the County’s policy, “one’s personal safety alone is not considered good cause.” The open carry of firearms is also prohibited, with or without a license. The District Court rejected the applicants’ claim that the County policy infringed on their Second Amendment rights because the County’s public safety interest trumped the applicants’ allegedly burdened Second Amendment interest.

Constitutional Issues

Wednesday, February 19, 2014

Caution: Statements of Economic Interest Must Be Filed With The Correct Office

Wednesday, February 19, 2014 Julie Tappendorf

On February 13, 2014, the Fist District Illinois Appellate Court issued a decision in Ferrand v. City of Chicago Board of Election Commissioners, confirming that candidates for public office must file the appropriate form of the statutorily required statement of economic interests (“SOEI”) in the correct office. In that case, Melanie “Mel” Ferrand filed nominating papers to be a candidate for state representative for the 40^th District. Prior to filing her nominating papers, Ferrand filed her SOEI form on the local form with the Cook County Clerk. she then included a copy of the SOEI with the nominating papers she filed with the State Board of Elections.

Objections were filed against Ferrand, alleging that her nominating papers were invalid because she failed to file the proper SOEI form with the correct entity, which for state offices is the Secretary of State, not the Cook County Clerk. After the objections were filed and after the filing period for nominations had passed, Ferrand filed an “amended” SOEI with the Secretary of State.

The Chicago Board of Elections Commissioners held a hearing and determined that Ferrand’s failure to file a state SOEI for a state office was a fatal flaw, and Ferrand was removed from the ballot. Both the circuit and appellate courts agreed with the Board of Elections Commissioners. The appellate court held that the form used by Ferrand was incorrect and that her “amended” SOEI did not cure the deficiency and would not "relate back" to the original filing of Ferrand’s nominating papers. The court also rejected Ferrand's argument that she substantially complied with the statute, and concluded that Ferrand’s name should not appear on the ballot.

The lesson for all candidates for public office in Illinois? Make sure you file the correct SOEI form in the right office.

Post Authored by Tiffany Nelson-Jaworski, Ancel Glink

Tuesday, February 18, 2014

Bill Would Shift Burden of Attorneys Costs to Local Governments

Tuesday, February 18, 2014 Julie Tappendorf

The Illinois Municipal League recently reported on proposed Senate Bill 2829 that would award attorneys’ fees and costs to plaintiffs who win an administrative review appeal against a unit of local government. The bill also authorizes a court award to the plaintiff of all reasonable costs associated with the entire case dating back to the inception of the administrative proceeding if the court finds that the decision by the unit of local government was clearly erroneous or that the plaintiff's rights to due process were violated.

This proposed legislation is unfavorable to local governments for a number of reasons, most importantly the potential financial implication of having to reimburse a plaintiff for his or her costs in suing the government. This legislation also runs contrary to the traditional "American Rule" that parties in litigation are responsible for their own attorneys' fees and other costs of litigation. The IML is asking communities to contact their legislators to oppose this legislation.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, February 17, 2014

Court Dismisses Challenge to FOIA Fees and Response Time

Monday, February 17, 2014 Julie Tappendorf

In an unpublished decision, an Illinois appellate court dismissed a case challenging the legality of FOIA fees charged by the Illinois Department of Correction, and the timeliness of IDOC's response to the FOIA request. Shehadeh v. IDOC, 2014 IL App (5th) 120523-U.

In this case, an inmate had filed a FOIA request with IDOC for various public records. He was charged $.15/page for the documents, and filed a subsequent FOIA request for "records that indicate how much the IDOC pays for paper and toner for the copy machine used to fill FOIA requests." That FOIA request was dated February 20, 2012. He received a response from IDOC on March 5, 2012, (dated February 24, 2012), stating that IDOC's cost for reproducing records in response to FOIA requests was approximately $.007 per page. Shortly after receiving IDOC's response, the inmate filed a lawsuit with the circuit court alleging that IDOC's response was untimely in violation of FOIA and that IDOC's fee of $.15/page was unreasonable. The circuit court dismissed his case, and he appealed.

On appeal, the appellate court first determined that FOIA allows a public body to charge a fee "reasonably calculated to reimburse its actual cost for reproducing and certifying public records," which fee "shall not exceed 15 cents per page." According to the court, IDOC's fee of 15 cents per page was "plainly reasonable and permissible under the plain language of section 6(b) of the FOIA."

Second, the appellate court held that IDOC responded to the FOIA request within the five business day time frame required by FOIA. The request was submitted on February 20th, and IDOC's response was dated just 4 days later, on February 24th. The court noted that nothing in FOIA requires receipt of the response within five business days, nor does FOIA require a public body to use U.S. mail to respond to a FOIA request. In sum, the inmate's complaint was properly dismissed for failure to state a cause of action upon which relief could be granted.

This case provides some good guidance to public bodies on complying with FOIA requests. First, the court upheld the 15 cent fee/page, even though that fee exceeded the actual costs for reproduction. Second, the court made it clear that FOIA does not require responses to be received within five business days, nor does FOIA dictate the manner in which responses must be sent to a requester.

Post Authored by Julie Tappendorf, Ancel Glink

Freedom of Information

Friday, February 14, 2014

From the IML: 10 Cases Municipal Officials Should Know

Friday, February 14, 2014 Julie Tappendorf

In this month's Illinois Municipal Review, the IML's monthly magazine, the IML legal team reports on 10 important cases for municipalities. All but one of these cases have been previously reported on this blog, and we have linked to each individual blog post (Q: how did we miss the Stevens case?).

Here is the line-up:

Champaign v. Madigan: Are text messages to/from council members subject to FOIA?
Hartney Fuel Oil Co. v. Hamer: Where does a sale occur for purpose of imposing a sales tax?
McBurney v. Young: Is there a fundamental constitutional right to receive documents under FOIA?
Peraica v. Riverside-Brookfield High School Dist: Can a local government support a referendum?
Dumke v. City of Chicago: Who is the head of the public body for FOIA exemption purposes?
Lake County Grading Co. v. Village of Antioch: What surety is required for a public works contract?
Koontz v. St. Johns River Water Mgmt Dist: What conditions can be imposed on land use permits?
Stevens v. Village of Oak Brook: Can a part-time employee agree not to take a pension?
Palm v. 2800 Lake Shore Dr Condo Ass'n: When does a statute preempt home rule authority?
Omnipoint Communications v. City of Huntington Beach: Can a municipality regulate the construction of telecom utilities on its own property?

You can review the article on the IML's website here.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, February 13, 2014

California's Ban on Open and Concealed Carry of Guns is Unconstitutional

Thursday, February 13, 2014 Julie Tappendorf

Today, the Ninth Circuit Court of Appeals struck down California's broad ban on open and concealed carry of guns in public (with very few exceptions) as an unconstitutional infringement of the Second Amendment. Peruta v. County of San Diego (9th Cir. Feb. 13, 2014).

We are analyzing the 120 plus page opinion, and will provide a detailed summary of the decision (and dissenting opinion) in an upcoming blog post.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues

Changes to Employer Mandate Rules of ACA

Thursday, February 13, 2014 Julie Tappendorf

On Monday, February 10, 2014, the Treasury Department issued final regulations relating to Shared Responsibility for Employers Regarding Health Coverage ("Employer Mandate"). These regulations further delay the penalties that would apply to large employers that fail to offer adequate health insurance coverage to full-time employees.

The Employer Mandate requirement of the Affordable Care Act was originally set to go into effect for all large employers (employers of 50 or more full-time equivalent employees) on January 1, 2014. In July, 2013, the Obama Administration delayed implementation of significant elements of the Employer Mandate until January 1, 2015. Monday's newly enacted regulations further delay implementation of the Employer Mandate for some employers and reduce the penalties for non-compliance for others.

The new regulations provide that large employers with 50 to 99 full-time equivalent (“FTE”) employees will not be liable for assessable payments for non-compliance with the Employer Mandate during 2015, although they will have to comply with the ACA’s employer reporting requirements during that year. Employers with 100 or more FTE employees will still have to meet employer reporting requirements, but will be subject to reduced penalties for non-compliance. The original penalty was set at $2,000 for each FTE after the first 30 employees, but the penalty for 2015 is now set at $2,000 per FTE after the first 80 until January 1, 2016, when the original penalties take effect.

There were some other changes that will be of interest to local government employers, particularly those that relate to seasonal employees, who may now be considered a new employee each season.

Post Authored by Don Anderson, Ancel Glink

Wednesday, February 12, 2014

Guns, Drugs & E-Cigarettes

Wednesday, February 12, 2014 Julie Tappendorf

How can you ignore a subject line like that? We hope you don't, and plan to join us at the upcoming Illinois City/County Managers Association (ILCMA) winter conference in Springfield on Friday, February 28, 2014. Ancel Glink attorneys Adam Simon, Julie Tappendorf, and Bob McCabe will be presenting on the topic "Guns, Drugs & E-Cigarettes," three hot issues of late for local government officials.

If you are interested in registering, you can visit the ILCMA's website to sign up for the entire conference. If you are already planning to attend, please stop by for this fun and educational session.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, February 11, 2014

Draft Rules for Medical Marijuana Available for Comment

Tuesday, February 11, 2014 Julie Tappendorf

Last year, the Illinois General Assembly adopted legislation that legalized medical marijuana, effective January 1, 2014. Full implementation of the law is waiting the adoption of administrative rules by the Departments of Financial and Professional Regulation, Revenue and Agriculture. Last Friday, those Departments each posted draft rules relating to medical cannabis, all of which can be found at this here. Comments on the draft rules are open until February 27.

While it will take some time to digest all of these proposed rules, there is at least one provision in the Department of Financial and Professional Regulation's draft rules that should be of immediate interest and concern to municipalities:

Section 1290.298 Zoning Rules Related to Dispensary

No local municipality or jurisdiction shall seek to impose or impose through zoning ordinances, including by special use permits, conditions or requirements that conflict with the Act or this Part, that concern or address issues or subject matters that are within the regulatory jurisdiction of the Division, or that would otherwise impede or place unreasonable restrictions on the location of dispensaries contrary to the mandate of the Act that dispensing organizations shall be geographically dispersed throughout the State to allow all registered qualified patients reasonable proximity and access to a dispensing organization. (Section 115(a) of the Act.)

While the language of this proposed rule does not completely preempt local zoning of dispensaries (in fact, the draft rules acknowledge that applicants for a dispensary or cultivation center must comply with local zoning requirements), the draft rule does limit the scope and extent of local zoning that might "otherwise impede or place unreasonable restrictions" on the location of dispensaries inconsistent with the state's mandate that dispensing organizations be geographically dispersed throughout the state. The Department may be trying to prevent a situation where most if not all municipalities located within a particular region adopt zoning ordinances that ban or "zone out" dispensaries, resulting in patients in that particular region being under served.

Of course, these rules are still in draft form, and could certainly change prior to publication. We will keep you posted on the draft rules, and report back when final rules are adopted.

Post Authored by Julie Tappendorf, Ancel Glink

Land Use and Environmental

Monday, February 10, 2014

Be Careful Who You Date at Work

Monday, February 10, 2014 Julie Tappendorf

As Valentine’s Day approaches, some of you may be looking for that special someone to celebrate the holiday with. However, before asking out your co-worker, you may want to read this recent case from Massachusetts. In Pierce v. Cotuit Fire Department, practically the entire fire department dated one another at one point. In a complex web of romance, the captain of the department was married to another firefighter in the department. Prior to this marriage, the captain had dated a different firefighter. This firefighter later married another firefighter, who, in turn, used to be married to another firefighter in the department. Amazingly, there were only sixteen firefighters in the Cotuit Fire Department.

The problems started when the captain was accused of displaying favoritism towards his wife. This prompted the fire department board to create a new policy forbidding firefighters from supervising family members or working regular shifts with them. After further conflict with a co-worker embroiled the captain in more controversy, the fire board notified the captain that his marriage to a firefighter he supervised potentially violated Massachusetts’s ethics laws. This ethics law prohibited the captain from participating in his wife’s supervision, performance evaluations, promotions, or determining her compensation. The fire board notified the state ethics commission of the potential ethics violation in its fire department, which notified the captain of his potential violations of the state’s ethics laws. The fire board first suspended, and ultimately terminated, the captain.

Predictably, the captain sued the fire board, alleging that he was the victim of political discrimination and retaliation for exercising his rights under the Massachusetts Whistleblower Act. The district and appellate courts rejected these claims. The appellate court noted that there was not sufficient evidence to find that the captain was the victim of political discrimination in violation of the First Amendment or retaliation for exercising his rights under the whistleblower act. Instead, the court found that the fire board had just cause to fire the captain, due to his violations of Massachusetts’s ethics laws.

Massachusetts is not unique in its laws restricting public employees from working with their family members. Many states have such anti-nepotism laws. Indiana has particularly strict anti-nepotism laws, which prohibit a local government employee from directly supervising a relative or making decisions about his pay, work assignments, grievances, promotions, or performance evaluations. Under these laws, "relative" includes a spouse, parent, child, sibling, niece or nephew, aunt or uncle, and half-, step- or in-law. Illinois laws require the disclosure of any potential nepotism in the awarding of school board contracts, and prevent judges from ruling on cases involving family members. The Illinois Supreme Court has upheld policies preventing married state troopers from serving together. Furthermore, nepotism can form the basis of a Title VII workplace discrimination lawsuit if it perpetuates racial, religious, national origin, or other forms of unlawful discrimination. Even with broad authority to impose nepotism policies, it is best practice for all employers, including local governments, to make sure their employees are aware of any anti-nepotism policies.

Post Authored by Matt DiCianni, Ancel Glink

Thursday, February 6, 2014

Injunction Issued Against Policy Requiring Protest Permits in Traditional Public Forum

Thursday, February 06, 2014 Julie Tappendorf

The Seventh Circuit Court of Appeals recently issued an injunction against enforcement of an Indianapolis memorial commission's policy that required a permit for events and protests as violating the First Amendment. Smith v. Executive Director of the Indiana War Memorials Commission

Eric Smith organized a protest of the Arms Trade Treaty at Monument Circle, home to the Soldiers and Sailors Monument in downtown Indianapolis. Although he publicized the event by distributing flyers, he and his son were the only people who attended the protest. An employee of the Indiana War Memorials Commission, the organization that supervises Monument Circle, approached him during the protest and asked if he had an event permit. The Commission had a policy in place that required all groups, regardless of size, to obtain a permit before gathering on Commission properties. Smith responded that he did not have a permit, and that the First Amendment protected his right to demonstrate without a permit. The police were called, and threatened to arrest him if he and his son did not leave - they chose to comply. He then filed suit against the Commission and the police officers who ordered him to leave, arguing that the Commission's permit policy violates the Free Speech Clause of the First Amendment.

The district court denied Smith's request for a preliminary injunction, finding that he did not demonstrate a reasonable likelihood of success on the merits. He then appealed to the Seventh Circuit. On appeal, the Commission argued that the lawsuit was moot because it had subsequently amended the policy. The amended policy "strongly suggested" that all events and gatherings submit an application for a facility use agreement prior to holding their events, although small gatherings of less than 15 people would be permitted "informal use" of Commission property without a permit. Informal use did not include even small events where the public was invited, the event was advertised, or the event would last longer than five hours. The Seventh Circuit rejected the Commission's "mootness" argument, finding that the amended policy was still problematic because it gave too much discretion to Commission employees as to when a permit would be required. The court also held that Monument Circle was a "traditional public forum" and the Commission's policy was not narrowly tailored to serve a significant government interest, as compared to policies adopted by other public bodies such as the policy adopted by the Chicago Park District that only requires a permit for gatherings of 50 people or more. The court also questioned the five hour limit on small events.

In sum, the court determined that Smith had shown that the Commission's permit policy violates the First Amendment. As a result, the court remanded the case back to the district court to issue a preliminary injunction against enforcement of the permit policy.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues

Wednesday, February 5, 2014

What's the Illinois PAC Been Up To Lately?

Wednesday, February 05, 2014 Julie Tappendorf

Apparently, not very much, at least not in the area of OMA and FOIA. The Illinois Attorney General's Office of the Public Access Counselor (PAC) has been pretty quiet so far this year - it's already February 5th, and we still haven't seen a binding opinion issued by that office on any Open Meetings or FOIA issue. Given the PAC's track record in issuing binding opinions that rule against public bodies in all but one case, maybe that's a good thing?

The PAC has prepared and made available on its website a summary of all binding opinions issued on Open Meetings complaints from 2010 to 2013. As loyal readers know, there haven't been that many binding opinions on this topic - most of the binding opinions have addressed FOIA issues, not OMA. But, the summary is a good resource for government bodies subject to OMA, and is categorized by topic (i.e., agenda, closed meetings, recording meetings, etc.). You can access the OMA summary here.

Freedom of Information / Open Meetings

Tuesday, February 4, 2014

Colorado Supreme Court Will Hear Appeal of Employee Terminated for Marijuana Use

Tuesday, February 04, 2014 Julie Tappendorf

The Colorado Supreme Court recently announced that it would hear the appeal of an employee who was fired by his employer for using marijuana. The employee, a quadriplegic man, lost his case at the court of appeals level after that court ruled that employers can fire workers for any marijuana use, even medical marijuana. The Supreme Court announced it would be reviewing and considering two issues in this appeal: (1) whether a special Colorado law that protects legal, off-the-clock activities covers marijuana and (2) whether Colorado’s constitution gives medical marijuana patients a right to cannabis.

This appeal could have major impacts for how employers treat marijuana use by workers in Colorado. If the Colorado Supreme Court reverses the lower court’s rulings, employers could no longer enforce "zero-tolerance" policies and would instead have to determine whether an employee's marijuana use is impacting his or her job performance before firing the employee.

As more states allow medical marijuana (including Illinois, which passed legislation last year to legalize medical marijuana), more and more employers are questioning what rights they have to deal with employee use. Although the decision by Colorado's high court on this issue will not apply to other states, it will still be a decision to watch.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, February 3, 2014

No Constitutional Right to "Cost-Free" Health Insurance

Monday, February 03, 2014 Julie Tappendorf

A retired County employee sued the County of Milwaukee claiming a "taking" of her property in violation of the Fifth Amendment to the U.S. Constitution after the County modified her retirement health insurance benefits. The Seventh Circuit Court of Appeals ruled in favor of the County, finding no unconstitutional taking. Hussey v. Milwaukee County (7th Cir. Jan. 29, 2014).

Under the County's ordinance, retirees were entitled to the same health insurance benefits provided to current employees. When Hussey retired, the County paid the premiums for employees, and the plan had no deductibles or co-payments. After the County's health insurance plan changed to require deductibles and co-payments, Hussey filed a lawsuit claiming she had a property right to "cost-free" health insurance. The County acknowledged she did have a property right, but only to the payment of her health insurance premiums. The Seventh Circuit Court of Appeals agreed with the County, finding that the County's promise to pay "premiums" for its employees and retirees did not include any obligation to also pay a retiree's co-payments or deductibles. In short, the County ordinance did not create an entitlement for retirees or current employees to receive "cost-free" health insurance.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues / Personnel

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