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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, March 31, 2014

Public Employees, Facebook & the First Amendment

From Strategically Social: Public Employees, Facebook & the First AmendmentGovernment entities have been establishing and maintaining a pretty active social media presence, with many cities posting about community events on Facebook, tweeting emergency information, and uploading meeting videos on YouTube. And, government employees are just as active on social media as employees in the private sector. So, what is the difference? That would be the First Amendment, which can affect how government can regulate its own social  media presence and how it deals with its employees' social media activities.

Surprisingly, there have been very few cases on the First Amendment and social media use.  In 2012, the Honolulu Police Department was sued for removing negative comments from its Facebook page - that lawsuit is still pending.  Recently, a Court of Appeals ruled in favor of government employees who had been terminated by their boss for "liking" his opponent's campaign page.  And now, we have a new lawsuit filed against Maui County by a county employee who claims the county is violating his First Amendment rights by pressuring him to shut down is Facebook page, where he reports on county issues.  Mamuad v. County of Maui (Dist. Haw. Mar. 3, 2014). You can read the complaint here.

According the complaint, Mamuad is a part-time administrative assistant and volunteer liquor commissioner for Maui County.  In 2013, he established a Facebook page called "TAGUMAWatch." which he later renamed to "MAIUWatch, where he reports on news items of interest in Maui County.  Many of his posts (and public comments) were about the activities of Maui County police officer Taguma, an alleged prolific ticket-writer. Although he said he did not advertise his involvement with the Facebook page, the county learned of the page (remember what I say - someone will always rat you out, and it's usually one of your "friend" co-workers).  He alleges in his complaint that the  county attorney met with him and told him to shut down the page.  He refused to do so, and claims that he became the subject of a harassment complaint filed against him alleging that his Facebook activities amounted to cyber-bullying.

In his lawsuit against the county, he claims that the county's workplace policies against cyber-bullying violate his constitutional right to freedom of speech. He also claims that the county has "chilled" his First Amendment speech by threatening to terminate him if he does not shut down the Facebook page or moderate his speech.
In deciding whether the county has violated Mamuad's First Amendment rights, the court is going to apply the Ninth Circuit Court of Appeals test for "public employee speech." That test will require the county to consider the following:
  • Were Mamuad's postings on a "matter of public concern"?  
  • Did he speak as a private citizen or public employee?  
  • Was his speech a motivating factor in any adverse employment action? 
  • Did the government have an adequate justification for treating Mamuad differently from members of the general public? 
  • Would the government have taken the adverse employment action absent the protected speech?
Many government employers are understandably unsure about their legal limitations in regulating employee activities on social networking sites when those activities negatively impact the government or other employees. This case may provide some guidance to government employers, assuming it doesn't settle before a court issues a ruling.

Friday, March 28, 2014

FLSA Does Not Require Overtime Pay for Changing Clothes

Employees at a chicken processing plant sued their employer, alleging that the FLSA requires the employer to pay them for the time they spend changing in and out of their work gear before and after their lunch break. The Seventh Circuit disagreed, extending the current FLSA exception that does not require payment for employees' changing in and out of work clothes at the beginning and end of shifts to apply equally to before and after lunch breaks. Mitchell v. JCG Industries (7th Cir. Mar. 18, 2014)

The most interesting part of the case is a discussion of the "experiment" the court performed to see how long it actually would take for employees to change in and out of their equipment.  That "experiment is described as follows:
One of us decided to experiment with a novel approach.  It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling. 
The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.
The court concluded that it would be "absurd" to interpret the FLSA to require an employer to pay overtime to an employee for donning and doffing times during lunch breaks every day.  

Thursday, March 27, 2014

Former Council Member Loses Disenfranchisement Case

Roseland Town Council member Snyder was arrested after he and another council member engaged in a fist fight at a council meeting.  While serving out his jail sentence, his voter registration was canceled pursuant to state law. When he tried to vote, he was turned away and he filed a civil rights lawsuit against the State of Indiana Election Division and county election officials, claiming that his temporary disenfranchisement violated federal voter laws and his constitutional rights under the 1st and 14th Amendments.  

The district court referred the constitutional question to the Indiana Supreme Court determined that state law only authorized cancellation of voter rights for "infamous crimes," which did not include his battery conviction. However, the court determined that he could have, but failed to, re-register after he was released from jail.

The district court dismissed the case on immunity and mootness grounds, and Snyder appealed to the Seventh Circuit Court of Appeals in Snyder v. King (7th Cir. Mar. 11, 2014).  The 7th Circuit affirmed the dismissal, finding that Snyder did not state a civil rights case against either the state or the county officials, and that there was no local "policy" in place that deprived Snyder of any constitutional rights or protections.  Instead, the state law requiring voter registration cancellation upon imprisonment was mandatory, and the officials had no discretion in removing him from the voter rolls.  

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, March 26, 2014

Supreme Court Refuses to Block Gun Magazine Ban

The City of Sunnyvale, California passed a voter-initiated ordinance banning gun magazines that hold more than 10 bullets.  That ordinance was challenged by gun owners represented by the NRA who argued that the restriction on gun magazine sizes interferes with the Second Amendment right to have a gun for self-defense.  

The district court denied the plaintiffs' request to block enforcement of the ordinance, stating that a right to have a magazine of greater than ten rounds “lies at the periphery” of the Second Amendment, and can be restricted in the interest of public safety.  “Magazines having a capacity to accept more than ten rounds are hardly crucial for citizens to exercise their right to bear arms,” the judge commented. Fyock v. City of Sunnyvale (Mar. 5, 2014)

The case made its way to the U.S. Supreme Court, which recently denied the NRA's request to block enforcement of the Sunnyvale ordinance.  

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, March 25, 2014

Student's Bullying Lawsuit Against School District Dismissed

It's your lucky day - I have not one, but two school district/immunity cases for you today!

School District Immune from Bullying Lawsuit

An appellate court dismissed a student's lawsuit that claimed that his high school failed to provide a safe environment against bullying.  The student had reported to the school counselor and dean that he had been subjected to verbal and physical abuse at school.  In his lawsuit, he alleged that the school had a duty to provide a safe environment and had failed to do so by "willfully, wantonly, and with reckless disregard" ignoring his complaints of bullying. 

The school district filed a motion to dismiss, claiming it was protected from liability by tort immunity laws. The appellate court agreed, finding that the school district was protected from liability.  Specifically, the court held that how a school handles an instance of bullying falls within the definition of a discretionary act under Section 2-201 of the Illinois Tort Immunity Act. Malinski v. Grayslake Community H.S., 2014 IL App (2d) 130685-U (Mar. 10, 2014).

School District Not Immune from Liability for Student Injury in "Cafetorium"

A student was injured when she fell in her middle school's combined cafeteria/auditorium or "cafetorium." The school district filed a motion to dismiss under Section 3-106 of the Illinois Tort Immunity Act, claiming that the property was "intended or permitted to be used for recreational purposes."  The appellate court denied the school district's motion, finding that the principal use of the cafetorium was educational or incidental to educational uses.  Although the school did use the auditorium for band, chorus, and dramatic performances, the court held that those uses were educational and not recreational in nature.  As a result, 3-106 would not apply, and the student's lawsuit could move forward.  Abrams v. Oak Lawn-Hometown Middle School, et al., 2014 IL App (1st) 132987 (Mar. 21, 2014)

Post Authored by Julie Tappendorf, Ancel Glink

Monday, March 24, 2014

Action Needed on Crime-Free Housing Bill

The Illinois Municipal League has reached out to municipalities to take action on SB 3299 before tomorrow's hearing by the Senate Judiciary Committee. SB 3299 would effectively eliminate the crime-free housing regulations of home rule municipalities. The bill amends state statute to provide that a landlord cannot be compelled to bring an eviction action against a tenant who uses the premises in furtherance of a criminal offense.

The IML notes that Crime-free housing ordinances are an important tool to help communities fight crime and urban decay. They are extremely popular among citizens. This bill would allow landlords to ignore the criminal activity on their property and pass the cost of their business model onto the public.
The IML has asked communities to consider one of the following actions:
  • Fill out a slip in opposition to the bill. If you filled out a slip before, please do so again--they restart the list each committee hearing;
  • If you have a relationship with any of the members of the Judiciary Committee, or with the Sponsor, please contact them and let them know of your opposition.
  • Contact the Brian Day at the IML with any information that will help in the preparation of the testimony against the bill. Any success stories concerning crime-free housing ordinances would be helpful.

City's Ban on Donation Bins Challenged as Unconstitutional

RLUIPA Defense recently reported on a case filed against a City in Michigan challenging the constitutionality of a recent amendment to the City's zoning code that bans donation bins throughout the City.  Planet Aid v. City of St. Johns, Michigan, No. 1:14-cv-00149 (W.D. Mich. 2014).  

After Planet Aid had placed two donation bins in the City, the City demanded that they be removed, alleging that the bins were a nuisance.  Shortly thereafter, the City passed an ordinance prohibiting any organization – for-profit and non-profit – from operating donation bins within the City.  Although the ordinance contained a “grandfather” clause to exempt donations bins that existed prior to its adoption, because the City had removed Planet Aid’s donation bins prior to the adoption of the Ordinance, the clause did not apply.

Planet Aid claims that the City's ordinance is a violation of its First Amendment rights to receive charitable donations, and has asked the court to enjoin the City from prohibiting the operation of donation bins. 

Post Authored by Julie Tappendorf, Ancel Glink

Friday, March 21, 2014

Follow, Friend, and Connect With Us on Social Media

The Municipal Minute blog was started in 2011 to provide officials and employees of local governments of all types (cities, villages, park districts, school districts, townships, counties, libraries, etc.) with timely updates on new cases, laws, and other topics of interest.  But, Municipal Minute is not our only social media site.  We would love for you to follow us on Twitter, friend us on Facebook, or connect with us on LinkedIn.  

Here's where you can find Ancel Glink tweeting, posting, and commenting:

Municipal Minute: @MunicipalMinute
Our Land Use Group: @AncelGlinkLand
Our Parks Group: @AncelGlinkParks

LinkedIn:  Ancel Glink


Thursday, March 20, 2014

School Districts Weigh In On Zoning Bill

As reported on March 5, 2014, Sen. Pamela Althoff (32d Dist. McHenry County and Lake County) is sponsoring SB 2647. This bill clarifies that school districts are subject to local zoning authority. Unsurprisingly, representatives for schools across the state have weighed in.  They raise three specific issues:

1) construction delays caused by the local zoning process;
2) review costs associated with the local zoning process; and
3) multiple agencies reviewing district proposals for zoning compliance.

The school districts would like Sen. Althoff to amend her bill to address these concerns. As currently drafted, Sen. Althoff’s bill is a simple, elegant and effective measure that reaffirms municipal zoning authority over school district property.  SB 2647 doesn’t change the current law; rather, it clarifies the rights local zoning authorities already possess.  School districts have long been required to comply with local zoning ordinances and this legislation simply confirms that. 

Our thoughts on the concerns raised by the school districts:

1)   Establishing an arbitrary time limit on public zoning deliberations raises obvious due process concerns and may promote gamesmanship by districts interested in stifling public dissent. 
2)    Similarly, waiving application fees designed to reimburse cities for the time and resources their staff dedicate to evaluating proposals for zoning compliance needlessly usurps municipal discretion and turns a cost-neutral service into an unfunded municipal liability. 
3)   Finally, districts’ concerns regarding duplicative review processes appear to be a red herring.  Local zoning authority is not shared by other agencies; therefore, there is no need for districts to be concerned about multiple agencies reviewing applications for zoning compliance.     

Municipal authorities are encouraged to contact their state legislators and provide effective counterpoints to the school districts positions.

Post Authored by David Silverman, Ancel Glink

Wednesday, March 19, 2014

Many Questions about Medical Marijuana

Since the state of Illinois' medical marijuana law became effective on January 1, 2014, there have been a lot of questions from local governments as to their authority to regulate medical marijuana, both as a government regulator and a government employer.  The IML recently posted a FAQ on its website to answer some of these questions, which you can read here.  A preview of the Q&A is below:

Q:  Can communities control where cannabis is grown and sold?

A:  There are statutory restrictions on where a dispensary or a cultivation center can be located, including specific distance requirement from schools, day cares, residential uses, and other protected areas.  For example, a cultivation center cannot be located within 2,500 feet of a school, day care, or residential district. A dispensary cannot be located within 1,000 feet of a school or day care or within a residential zone or home.  Local governments can enact reasonable zoning regulations on dispensaries and cultivation centers, so long as the regulations do not conflict with state law.  These regulations might require special use permits and impose reasonable conditions on such permits and restrict the zoning districts in which such uses are located.  The statute prohibits a local government from unreasonably prohibiting the cultivation, dispensing, or use of medical cannabis so an outright ban could be subject to challenge.

Q:  Can communities regulate medical cannabis use by public employees?

A:  The statute does protect certain employer rights as to medical marijuana (section 50).  Although the statute provides only minimal guidance as to the type of restrictions employees can enact and enforce, states that have medical marijuana laws have upheld an employer's ability to regulate, and even prohibit, employees from using drugs or being under the influence of drugs while on the job.  These drug-free workplace policies are very common, particularly in the public sector, and should continue to be enforceable, so long as the policy is enforced and applied in a non-discriminatory manner.

For more, check out the IML's website.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, March 18, 2014

Local Police Could Not Detain Illegal Alien

Local police arrested Galarza for a drug offense. Although he posted bail, he was not released.  Instead, local police held him on an "immigration detainer" that was issued by federal immigration officials. Shortly thereafter, immigration officials learned Galarza was an U.S. citizen, and withdrew the detainer.  Galarza was released on bail, and then filed a Section 1983 action against the city and local police, contending that he was held without probable cause for more than 48 hours.  

The city and local police argued that they were compelled to follow the immigration detainer issued by federal immigration officials.  The 3rd Circuit Court of Appeals disagreed, holding that immigration detainers are permissive only, and do not and cannot compel a local law enforcement agency to detain suspected aliens subject to removal proceedings.  Galarza v. Szalczyk, (3rd Cir. March 4, 2014.  Specifically, the court cited the 10th Amendment that provides that immigration officials cannot order state and local officials to imprison suspected aliens subject to removal. 

Post Authored by Julie Tappendorf, Ancel Glink

Monday, March 17, 2014

City's Leaflet and Demonstration Policy Upheld

In celebration of St. Patrick's Day, I thought a case that deals with the legality of a parade/demonstration policy seems quite appropriate.

The City of Baltimore, Maryland had a policy that identified certain permitted areas where demonstrators and protesters could gather in the City's Mariner Arena area.  Ross was arrested after repeated warnings that he was violating the policy by handing out leaflets within a prohibited area.  He sued the City, claiming that the policy was facially unconstitutional and violated his First Amendment rights.  Both the district court and the 4th Circuit Court of Appeals ruled in favor of the City. Ross v. Farley (4th Cir. March 5, 2014).  

The issue for the appellate court was whether the City's policy was an improper "time, place, and manner restriction" on protected speech.  The court first determined that the Mariner Area was a traditional public forum.  Next, the court determined that the policy promotes a substantial government interest - in this case, to keep sidewalks clear for pedestrian movement.  The court also found that the policy was content-neutral, and was not targeted at a particular group or speech. Finally, the policy left open ample alternative channels for communication, as it identified areas where protesters could gather. 

In short, the City did not violate Ross' First Amendment rights by arresting him for violating the City's policy on demonstrations in Mariner Arena.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, March 14, 2014

Upcoming Full-Day Social Media Legal Program

From Strategically SocialOn June 6, 2014, IICLE will present a full-day program on the legal and ethical issues that arise in the use of social media.  Strategically Social author Julie Tappendorf is on the faculty, and will be presenting a session called "Ethics Jeopardy." The program will be informational and entertaining. Just like Facebook, right?

You can find out more and register on IICLE's website.  A description and outline of the program is below: 
IICLE®'s 2nd Annual Social Media Law Institute is a forum for litigators, in-house counsel, labor, employment and business law attorneys, government or private practice attorneys and other legal professionals who want more information about the legal implications of social media across a broad variety of topics. Knowledgeable professionals on social media in a variety of venues join the faculty for this program, creating materials and presentations to help you be better prepared for handing these issues in your practice
2nd Annual
Social Media Law Institute

Covering Three Important Practice Areas
for Social Media Use

 1:  Use of Social Media in the Workplace
  •  Use of Social Media by HR & by Employees
  •  Managing the Use of Social Media by HR & by Employees
 2:  Use of Social Media in the Courtroom
  •  Social Media in Litigation
 3:  Use of Social Media in the Law Firm
  • A Brief Guide to Attorney Social Media Ethics
  • Ethics Jeopardy – Social Media Edition

Thursday, March 13, 2014

Park Director Had Authority to Offer Severance Agreement

The question in this case was whether a park district director had authority to enter into a binding severance agreement to terminate an employee without formal action of the park board. An appellate court recently said yes, finding that the severance agreement did not create any new debt or obligation, so did not require formal approval of the park board.  Wheeling Park District v. Arnold, 2014 IL App (1st) 123185.

The executive director of the park district wanted to discharge a park district employee, but gave the employee the opportunity to voluntarily resign in lieu of discharge. The director presented a severance package and agreement and a resignation letter. The employee signed the resignation letter but asked for more time before signing the severance agreement. Eventually, the employee sent a signed copy of the severance agreement to the director, who signed it that same day.

A month later, however, the employee "revoked" the agreement and filed a charge of discrimination against the district. The district then filed a declaratory judgment complaint asking the court to enforce the severance agreement against the employee.

The employee argued that the agreement was not enforceable because the director did not have authority to enter into the agreement without park board approval.  Specifically, the employee claimed that Section 4-6 of the Illinois Park District Code provides that only the park board has the "power to create any debt, obligation, claim or liability."  

The court ruled in favor of the park district, finding that the severance agreement did not create  new debt or obligations, but simply settled an existing disputed claim. As a result, Section 4-6 did not apply, and formal board action was not required. 

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, March 12, 2014

Summary of OMA/FOIA Bills

There are more than a dozen bills that have been introduced in the Illinois General Assembly to amend the Open Meetings and FOIA laws.  Here is a summary of these bills (which have not yet been enacted):


HB 3664 - Amends FOIA to prohibit a public body from including a confidentiality provision in any severance or settlement agreement except where it is necessary to protect a trade secret, proprietary information, or is otherwise exempt under FOIA.

HB 4719 - Amends FOIA to authorize fines against the public body for noncompliance with FOIA, and criminal penalties against a public official (imprisonment up to 60 days) for failure to comply with FOIA.  This is a very troubling bill for public officials, particularly FOIA officers.

SB 2926 - Amends FOIA to provide that a public body is not required to copy or make available public records that it posts on the public body's website. This would eliminate FOIA requests for information that is easily accessible on the public body's website, such as meeting minutes, agendas, and ordinances.

SB 3072 - Amends FOIA to exempt from release recordings of 911 emergency calls.

SB 3273 - Amends FOIA to provide that a public body is not required to respond to requests used for a  "commercial purpose."  It also would expand the exemption regarding personnel records to include employee performance reviews and evaluations, as well as complaints and investigatory material relating to employee disciplinary cases.  It adds a new exemption for litigation materials, and requires the PAC to post a copy of each binding and advisory opinion on its website.  There are a lot of good provisions in here for public bodies.


HB 4437 - Amends OMA to delete existing language that states that if a notice or agenda is not continuously available for 48 hours prior to a meeting due to actions outside the control of the public body, then that would not invalidate actions taken at a meeting.  This is obviously problematic, because an opponent to a particular ordinance or action could simply remove the note or agenda, thus invalidating the action.

HB 4438 - Amends OMA to either require a public body to respond to questions at a meeting or follow up with a written response prior to the next meeting.  Similar legislation has been proposed in the past, but has not been enacted.

HB 4794 - Amends OMA to allow closed session negotiations of vendor contracts. 

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, March 11, 2014

Government Loses "Rails to Trails" Case

The United States Supreme Court issued a ruling yesterday in favor of a landowner who challenged the U.S. government's claim to a former railroad right of way that ran through the landowner's property.  Brandt v. United States (March 10, 2014).

In 1875, Congress passed the "General Right of Way Act of 1875" that gave railroad companies rights of way through public land.  101 years later, the US conveyed 83 acres of land to the Brandt family in a land patent.  That patent reserved the railroad's rights to the previously granted right of way.  Years later, the railroad relinquished its rights to certain land, including the right of way that ran through the Brandt family property. Shortly thereafter, the U.S. government sought a judicial order of rights to the abandoned railway right of way. The Brandts objected, claiming that it now had full title to the land once the railroad abandoned its easement. The district court and court of appeals ruled in favor of the US government, and the Brandts appealed to the Supreme Court.

The Supreme Court reversed, ruling in favor of the Brandts.  The ruling centered on the nature of the railroad's rights to the right of way. Specifically, the Court wrestled with whether the rights were an easement or fee simple title.  Relying on previous arguments made by the U.S. government in 1942 that a railroad company was granted only easement rights to these rights of way, the Justices determined that those easement rights were extinguished when the railroad abandoned the use of the tracks.  Upon termination of those rights, the Brandts' land became unburdened by the easement.  

What is not discussed in the majority opinion is the impact of this decision on the federal government's "rails to trails" program, that turns abandoned railroads into bike and pedestrian trailways.  Justice Sotomayor mentions this in her dissenting opinion, stating that the decision "undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation." She also expresses concern that this decision could result in lawsuits by other landowners that will cost American taxpayers hundreds of millions of dollars.  

An amicus brief in support of the government was filed by the National Conference of State Legislatures, National League of Cities, the International City/County Management Association (ICMA), the U.S. Conference of Mayors, the International Municipal Lawyers Association (IMLA), and the American Planning Association (APA). The Rails to Trails Conservancy, a non-profit organization, had also backed the government in this case.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, March 10, 2014

FOIA Does Not Require Creation of Records

Anyone familiar with the Illinois Freedom of Information Act is aware that the law states that public bodies are not required to create new records to satisfy a FOIA request.  FOIA is intended to open up to public inspection existing public records, not create a new burden on public bodies to create new documents. Newspaper reporters should certainly be well familiar with the law  given the number of FOIA requests they routinely and regularly file with public bodies.  So should the PAC, the state agency tasked with enforcing FOIA.  Yet, an appellate court had to remind the Chicago Tribune and the PAC that a state agency did not have to answer questions, analyze data, or create new records in Chicago Tribune Co. v. Department of Financial and Professional Regulations (March 6, 2014).

The Chicago Tribune had filed multiple requests with the DFPR regarding medical licenses.  Specifically, the Tribune wanted the DFPR to disclose the number of license holders who have been identified as sex offenders, the names of those license holders, the number of complaints that had been filed against those license holders, how they were resolved, and similar information.  A supplemental request asked for a timeline of each case where a license holder had been disciplined by the DFPR, and asked whether the DFPR had been aware of criminal charges.  

The DFPR responded by providing certain records, but denying the Tribune's request for other records as exempt from disclosure.  With respect to the Tribune's request for answers to its questions, the DFPR responded that it did not maintain the number of complaints  in the ordinary course of business.  

The Tribune appealed to the PAC, who found the DFPR in violation of FOIA for not disclosing the number of complaints, as requested by the Tribune.  The Tribune also sued the DFPR in circuit court claiming it violated FOIA for not answer its question as to the number of complaints filed against license holders.  The trial court ruled in favor of the Tribune, and the DFPR appealed.

First, the appellate court addressed the Tribune's argument that the DFPR waived its argument that FOIA doesn't require the creation of records during the PAC appeal,  finding that there is no mention of waiver under FOIA. 

Second, the court held that FOIA provides a right of access to public records.  Here, the Tribune was not seeking public records, but was requesting that the DFPR perform a review of its investigative files and prepare a tally of the claims.  FOIA, however, was not intended to create any obligation on the part of a public body to prepare a record that was not already maintained or in existence.  The court noted that the Tribune's request was more like an interrogatory in a civil action than a request for records under FOIA. Because the Tribune's request would have required the DFPR to create new records it didn't maintain, the court reversed the ruling by the trial court and PAC, finding no violation of FOIA.

This is a good decision for public bodies, as it reinforces the intent of FOIA, which is to provide access to public records maintained by a public body.  FOIA does not require a public body to answer questions, analyze data, or create new records.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, March 7, 2014

PAC Issues No Binding Opinions in 2014

I reported previously that it has been pretty quiet at the PAC office of the Attorney General in 2014...so quiet, that we hadn't yet seen a binding opinion issued this year.  That is still the case - month 3 of 2014, and all is quiet on that front.  We didn't rely solely on the PAC's website for that determination, we also submitted a FOIA request for all binding opinions issued in 2014 and the response was that no responsive records exist.  Given that the binding opinions almost always go against the public body, that's probably a good thing.  

Although the PAC hasn't issued a binding opinion in 2014, we have heard that there have been quite a few advisory or non-binding opinions issued this year.  Two of these are summarized below:

2013 PAC 27072 - On February 4, 2014, the PAC issued an opinion finding that the finance committee of a village violated the OMA by holding an improper closed session, and that the village board violated OMA by participating in that same closed session.  The PAC determined that even though the finance committee was meeting to discuss whether it would file a lawsuit against a developer for non-payment, that wasn't "exigent" enough to fall within the "probable or imminent" requirement under the OMA. The PAC also stated that the village board should have noticed up its own meeting when it participated in the finance committee's meeting and executive session.

2012 PAC 22147 - On the same day, the PAC issued another opinion ruling against a public body on an OMA complaint.  In this case, the PAC found that the village violated the OMA because a building oversight, maintenance/repair, demolition an construction committee met without providing notice or access to the public.  The village argued that the committee was not a "public body" because it consisted only of the mayor and one trustee, was not established formally by the board, and had no authority to take any action. The PAC disagreed, finding it a subsidiary body because it was listed on the village's website.

For a detailed and very informative survey of the PAC's work from 2005 to 2013, check out the Illinois Municipal League's recent issue of Illinois Municipal Review for IML General Counsel Roger Huebner's article "FOIA and the PAC's Work."

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, March 6, 2014

Supreme Court Declines to Hear Cases Striking Bans on Renting to Illegal Aliens

On Monday, March 3rd, the U.S. Supreme Court declined to hear the appeal of two cases involving challenges to local housing ordinances that prohibited landlords from renting to illegal aliens. Farmers Branch v. Villas at Parkside and Hazleton v. Lozano.   In both cases, the courts of appeal had struck down the rental ordinances, finding them preempted by federal immigration laws.
Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, March 5, 2014

Bill Would Clarify Municipal Zoning Authority Over Schools

State Senator Pamela Althoff has sponsored a bill that would clarify the zoning authority municipalities have over school districts, an issue that has been the subject of disagreement between municipalities and school districts for some time.  This bill comes in the wake of the very hotly disputed zoning issue between SD #155 and Crystal Lake regarding the school’s desired expansion of its football stadium that we previously reported about on the blog.

Senator Althoff explains the murky zoning relationship between school districts and municipalities as follows:
It was written intentionally to be a little gray so communities could have flexibility on how they wanted to work with school districts, but that’s when life was simpler. Now some schools want to build wind turbines to reduce energy costs. We never anticipated that when the school code was written and revised.
Sen. Althoff’s bill would amend a provision in the School Code to expressly state that school boards must comply with local zoning authority, as follows:
(105 ILCS 5/10-22.13a)
  Sec. 10-22.13a. Zoning changes, variations, and special uses for school district property; zoning compliance. To seek zoning changes, variations, or special uses for property held or controlled by the school district.
A school district is subject to and its school board must comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. The changes to this Section made by this amendatory Act of the 98th General Assembly are declarative of existing law and do not change the substantive operation of this Section.
Post Authored by David Silverman, Ancel Glink

Tuesday, March 4, 2014

Guns, Drugs & E-Cigarettes - Handout and Q&A

Last Friday's session on "Guns, Drugs & E-Cigarettes" was a great success, and we had a lot of really good questions from our city manager attendees.  For those who could not attend, but are riveted by this topic, you can access our PowerPoint presentation on the ILCMA website here.  I've summarized some of the questions/answers below:

1.  Can a municipality prohibit its employees from carrying a gun to work?

Most buildings and property where municipal employees work are already covered as "prohibited areas" under the new state concealed carry law.  That means that employees are already prohibited from carrying handguns into municipal buildings by operation of state law.

2.  But, what about municipal employees who work outside of municipal buildings, like building inspectors or public works employees?

If those employees are traveling to work sites in municipal vehicles, those vehicles are "municipal property" that falls in the statutory prohibited area under the state law.  However, if those employees use private vehicles to travel to work sites, then arguably they can carry a handgun while at work unless the municipality has enacted a policy that states otherwise.  We believe that municipal employers do have the authority to regulate the actions of their employees while they are on-duty, including enacting restrictions on concealed carry during work hours.  

3.  Are e-cigarettes subject to Illinois' smoke-free law?

State law does not specifically mention e-cigarettes as "smoking" that would fall under the state restrictions. However, municipalities may adopt their own restrictions on use of e-cigarettes, like Chicago has done.

4.  Can we prohibit our police officers from using medical marijuana?

The state statute authorizing medical marijuana already prohibits police officers and firefighters from being prescribed medical marijuana.  We believe that municipal employers can go further, and prohibit other employees from use of medical marijuana. 

These are just a handful of the great questions asked by attendees on these three very new legal issues for municipalities.

Monday, March 3, 2014

Appellate Courts Disagree on FOIA Attorneys Fee Provision

In Uptown People's Law Center v. Dept. of Corrections, 2014 IL App (1st) 130161, the First Appellate District of Illinois rejected the Second District's interpretation of the "prevailing party" provision under FOIA that required court-ordered relief for an award of attorneys fees. This could set the issue up for the Illinois Supreme Court, if this case is appealed. 

The facts are not terribly important but they do set up the controversy.  Uptown requested certain documents from IDOC under FOIA. Uptown sued, claiming that IDOC failed to turn over the records. During the lawsuit, IDOC turned over the documents.  Uptown then filed a petition for attorneys fees under section 11 of FOIA that provides that a "prevailing party" is entitled to an award of attorneys fees. IDOC argued that Uptown had not prevailed because IDOC turned over the records before a court issued an order compelling it to do so. 

The trial court agreed with IDOC and denied fees to Uptown, relying on a Second District case, Rock River Times v. Rockford Public Sch. Dist., 2012 IL App (2d) 110879 (we previously reported in this blog here). In Rock River Times, the court interpreted the prevailing party language of FOIA to apply only if a court ordered relief, not if the public body turned over the records during litigation. In that case, like here, the records were turned over before the court issued a ruling. 

The First District acknowledged the Rock River Times ruling, but found that that Second District "wrongly decided" that case.  In the First District's opinion, the legislature modified the FOIA statute in 2010 to make it easier for plaintiffs to obtain attorneys fees against public bodies. So, according to the Uptown court, "prevails" does not require judicial relief.  Ultimately, the Uptown court did not award attorneys fees against IDOC because Uptown was represented by salaried employees, and did not expend additional funds for outside attorneys.

The First District's interpretation of "prevailing party" is likely to cause a great many problems for public bodies, and in my opinion, does no great favors to people who file FOIA requests either.  

With the 2012 Rock River Times ruling, public bodies were encouraged to turn over records during litigation to avoid a large attorneys fee award.  That benefits the public body by avoiding a large attorneys fee award. It benefits the plaintiff because he or she gets the records sooner. It benefits the judicial system, because it puts an end to costly and time-consuming litigation. And, it benefits the public as a whole (taxpayers) because they won't be responsible for paying a plaintiff's attorneys fees.

With this most recent Uptown ruling, however, a public body might decide to take its chances in litigation rather than turn over the records early if it is going to be responsible for paying attorneys fees even for voluntary compliance.  The plaintiff may wait months or even years to obtain the records. 

Stepping on my soapbox:  Certainly, we want our public bodies to do the right thing and comply with FOIA requests in a timely and appropriate manner.  But, imposing a policy that "punishes" the public body even when it does the right thing a little late by turning over the records during litigation is not good for anyone. There are other penalties that can be used to "punish" the public body who delays releasing records, such as the penalty imposed on the public body in the Rock River Times case.  

Post Authored by Julie Tappendorf, Ancel Glink