Citizen’s Arrest Made At Park Board Meeting for Alleged OMA Violation

Citizen’s Arrest Made At Park Board Meeting for Alleged OMA Violation

  Monday, June 30, 2014    Julie Tappendorf

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UPDATE:  Subsequent to the meeting at which the citizens arrest was made, the Clark County Park District adopted a new policy allowing up to 30 minutes of public comment at every meeting.

Today's post involves our second "public comment" case in under a week.  This case deals with an Illinois park district board that did not allow public comment at a recent board meeting.  You might recall that last week we reported on a New Mexico case where the court struck down a public comment policy that banned "negative" or critical public comments as unconstitutional. 

On May 12, 2014, the Clark County Park District Board held a special meeting, where it went into executive session to discuss the executive director’s evaluation.  After returning to open session, the Board voted to table the “status of executive director” agenda item.  According to news reports and a subsequently filed lawsuit, members of the public had, apparently, requested and were denied an opportunity to speak at the meeting before the meeting was adjourned.  

Shortly after the meeting was adjourned, John Kraft, a member of the citizen’s group Illinois Leaks (formerly known as Edgar County Watchdogs), placed the Park Board members under citizen’s arrest for allegedly violating Section 120/2.06(g) of the Illinois Open Meetings Act.  That section provides that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”  A few days after the meeting, Kirk Allen also filed a lawsuit against the Park Board claiming that the Board violated the OMA by refusing to allow public comment at the special meeting.  Allen v. Clark County Park District (May 15, 2014)

It is important to point out that Section 2.06(g) of the OMA does not state that a public body must include a public comment section at every meeting.  Instead, that section requires a public body to provide some opportunity to address public officials under the rules established and recorded by the public body.  Thus, it seems reasonable to interpret the statute to allow a public body to adopt a rule that provides an opportunity for public comment at all regular meetings, but not special meetings or committee meetings.  However, it's not clear that the Public Access Counselor of the Attorney General's office would agree with that interpretation.  In fact, the PAC previously found the Naperville Electoral Board in violation of the Open Meetings Act when it failed to allow for public comment at a special electoral board meeting in 2012.  We reported on that opinion here.

Because this will be the first time a court will address this issue, this case will be worth watching to see how a court interprets the "opportunity to address public officials" requirement of Section 2.06(g).   

Post Authored by Tiffany Nelson-Jaworski and Julie Tappendorf, Ancel Glink

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US Supreme Court Strikes Down Buffer Zone from Abortion Facilities

US Supreme Court Strikes Down Buffer Zone from Abortion Facilities

  Friday, June 27, 2014    Julie Tappendorf

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The U.S. Supreme Court is always busy at the end of its term, and this year is no different.  We've seen a few "government" cases over the past week or so, including the cell phone privacy case we reported on earlier this week.  Today, we are reporting on yesterday's decision striking down Massachusetts' law that imposes a 35-foot buffer zone between abortion facilities and protesters because the law violated the First Amendment.  McCullen v. Coakley (USSCT, June 26, 2014).

In 2007, Massachusetts enacted a law that made it a crime for someone to knowingly stand on a public way or sidewalk within 35 feet of the entrance of a reproductive health care facility, defined as a place where abortions are offered or performed (but excepting hospitals).  The law also makes it a crime to knowingly obstruct access to an abortion clinic.  A lawsuit was filed to challenge the law by individuals who engage in "sidewalk counseling" outside abortion clinics.  They claimed that the law hampered their ability to counsel people on alternatives to abortion.  The plaintiffs asked the court to issue an injunction to enjoin enforcement of the law based on the First Amendment. The district court and court of appeals ruled against the plaintiffs, who then appealed to the U.S. Supreme Court.

The U.S. Supreme Court reversed the lower courts, finding the buffer zone law unconstitutional, as a violation of the First Amendment.  First, the Court determined that the area regulated by the law (sidewalks and streets) are a traditional public forum, and the government's ability to regulate speech in these locations is very limited.  Although the Court determined that the law was "content-neutral", it was not narrowly tailored because it burdened more speech than was necessary to further the government's interests.  While the state has a legitimate interest in maintaining public safety on streets and sidewalks, the serious burden on speech deprived individuals of their ability to communicate with arriving patients.  Moving the individuals outside of the entrance area went too far in restricting their speech.  The Court also determined that there were alternative ways to deal with obstructions to the entrance of these facilities, including having police order people to move.  In short, the Court held that the law went too far.

The decision was unanimous, although there were two separate concurring opinions that would have decided that the law was unconstitutional on different grounds.

Post Authored by Julie Tappendorf, Ancel Glink

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Policy Banning Criticism at Public Meetings Violates Free Speech Rights

Policy Banning Criticism at Public Meetings Violates Free Speech Rights

  Thursday, June 26, 2014    Julie Tappendorf

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Government officials and employees are often the subject of criticism.  For local government officials, that criticism is often expressed at the regular meetings conducted by the governing board and open to the public.  In the Village of Ruidoso, New Mexico, the village council enacted a policy to deal with negative comments by speakers at council meetings.  Ruidoso's policy prohibited speakers from making "any negative mention...of any Village personnel, staff, or of the Governing Body" during the public comment period of village council meetings.   That policy was recently challenged, and found unconstitutional, by a district court in Griffin v. Bryant (N.M. Dist. Ct. June 18, 2014).

William Griffin had filed suit against the Village of Ruidoso after the village council refused to allow him to speak at a council meeting.  He challenged the policy on a variety of constitutional grounds, including that the policy was an unconstitutional violation of his First Amendment free speech rights. The village defended the policy, claiming that it was a content-neutral time, place, or manner restriction designed to prevent disruption at council meetings.  The district court disagreed with the village, and found the policy unconstitutional.  Because the village council meetings were a limited public forum, any restriction on speech must be reasonable and viewpoint neutral.  In this case, the policy failed the second prong because it permits praise and neutral feedback, but not negative or critical feedback.  It failed the "reasonable" prong because the ban on negative speech was not narrowly tailored - the restriction on negative speech was too broad and the village council could have crafted a more restrictive rule banning personal attacks or disruptive speech rather than banning all negative comments.  

The court did provide some helpful guidance on how the village council could replace its unconstitutional policy with public comment rules that might pass constitutional muster.  For example, the court pointed the village in the direction of Topeka, Kansas' public comment policy that bans speakers from making "personal, rude or slanderous remarks."  The court also provided other tips on revising the policy to deal with the issues the village raised about disruptive speakers, without running afoul of the First Amendment.  

The decision is  a long one (89 pages) but worth a read for its detailed analysis of the First Amendment and government meetings.  

Post Authored by Julie Tappendorf, Ancel Glink

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Warrantless Search of Suspect's Cell Phone is Unconstitutional

Warrantless Search of Suspect's Cell Phone is Unconstitutional

  Wednesday, June 25, 2014    Julie Tappendorf

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This morning, the U.S. Supreme Court issued an opinion holding that a warrantless search of a suspect's cell phone by local police was a violation of the suspect's Fourth Amendment rights in Riley v. California (June 25, 2014).  The decision involved the appeal of two separate cases involving police officers' searches of arrested suspects' cell phones, and subsequent convictions of both suspects.

The Court's ruling limiting police authority to search the cell phones of arrested individuals was unanimous.  The Court distinguished cell phones, smartphones, and similar electronic devices from other items like wallets, briefcases, and vehicles which are subject to a warrantless "search incident to arrest" if police can show probable cause that a crime has been committed or that a search is necessary to ensure officer safety.  With respect to personal electronic devices, however, the Court held that a warrant is required to search the devices because a suspect has "substantial" privacy interests in his or her digital data that outweigh any government interest in searching the data without a warrant.  

While the Court acknowledged that the decision will have some impact on the ability of police to combat crime, the Court noted that police can still access the information pursuant to a warrant, which the Court said can be obtained with "increasing efficiency." 

Post Authored by Julie Tappendorf, Ancel Glink

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Chicago's 75-Year Parking Lease did Not Violate "Public Purpose" Clause of Illinois Constitution

Chicago's 75-Year Parking Lease did Not Violate "Public Purpose" Clause of Illinois Constitution

  Wednesday, June 25, 2014    Julie Tappendorf

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The City of Chicago has gotten a lot of flak for entering into a 75-year concession agreement with a private company to lease its metered parking system.  It also got sued, including one lawsuit that challenged the City's authority to enter into the parking lease agreement and the agreement's constitutionality.  That case made its way to the appellate court last week, and the City prevailed.  Independent Voters of Illinois vs. Ahmad (June 20, 2014).  

In 2009, the Chicago City Council approved a concession agreement with Chicago Parking Meters, LLC to lease the metered parking system to CPM for a 75 year period.  The City received a one-time payment of $1,156,500,000, and CPM was entitled to all future revenue produced by the meters for 75 years.  Shortly after the agreement was approved, Independent Voters of Illinois (an association representing the interests of Chicago taxpayers) filed suit, claiming that the agreement violated the "public purpose" clause of the Illinois constitution, among other claims.  Specifically, the plaintiffs claim that the agreement illegally delegates the City's police power to issue tickets and citations to CPM, a private party. The plaintiffs also claimed that the agreement obligates the City to use public funds to reimburse CPM for lost maintenance, repairs, and expenses, and obligates the City to spend pubic funds to enforce parking meter tickets. The plaintiffs asked the court to declare the agreement unconstitutional and illegal.

The circuit court ruled in favor of the City, finding that the agreement did not violate the public purpose provision of the Illinois constitution.  The appellate court agreed, affirming the trial court's dismissal of that claim.  First, the ordinance approving the agreement is presumed constitutional, and plaintiffs did not plead any facts to overcome that presumption. Although the court acknowledged that CPM received benefits from the deal with the City, the court also noted that the City received more than $1.15 billion in consideration for the transfer of the meter parking system to CPM, just one of the public benefits from the agreement.  

The court acknowledged that it understands plaintiffs' argument that the concession agreement may not have been a good business deal for the City, but noted that a "bad deal" does not provide a basis for invalidating the concession agreement.  The court also rejected plaintiffs' argument that the agreement would "chill" the City's exercise of its police powers over the parking meter system, and found that it did not violate the City's home rule powers.  

The court concluded its opinion by upholding the circuit court's ruling in favor of the City.  The court did take a moment to "urge the City and the City Council to debate and act wisely in the future when seeking to ease the financial crisis." 

Post Authored by Julie Tappendorf, Ancel Glink

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Court Reduces Attorney's Fee Award in Civil Rights Case

Court Reduces Attorney's Fee Award in Civil Rights Case

  Tuesday, June 24, 2014    Julie Tappendorf

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A successful plaintiff in a civil rights case is entitled to reimbursement of its attorneys' fees from the government defendant unless the damage award is considered nominal.  However, that does not mean that a court will rubber stamp the plaintiff's request for attorneys' fees - the court has the discretion to determine whether the fee request is "reasonable" in a particular case.  So, if a court finds that a plaintiff is only partially successful, or the damages award is only a fraction of what the plaintiff sought in its case, a court can reduce the attorneys fee award.  That is exactly what the court did in a recent excessive force case involving the City of Chicago.  

In Montanez v. Simon (7th Cir. June 18, 2014), plaintiff had brought a civil rights action against Chicago claiming that two CPD officers had used excessive force while arresting him for drinking on a public way.  The case went to trial, and a jury awarded him $2,000 in damages.  Plaintiff's attorney submitted its fee petition to the court, which asked for $426,000 in attorneys' fees and $6,500 in costs and expenses.   The City objected to the petition as unreasonable, and the district court judge reviewed the bills line-by-line, striking entries that were unnecessary, duplicative, excessive, or improperly documented. 7 lawyers had billed 1,021 hours on the case, and the court struck time billed by 3 of the lawyers who were only tangentially involved in the case.  The judge also struck time for a mock trial and time spent shopping for clothes for a witness, as well as other time entries. The court also reduced the hourly billing rates from $450/hour to $385/hour for the lead lawyers and set the hourly rate at $175/hour for associates.  The court then reduced the adjusted bill again, by 50%, to reflect the fact that the plaintiff lost 4 of his 6 claims and was awarded only $2,000 in damages.  The final award to the plaintiffs was $108,350.87 in fees and $3,051.94 in costs.  The plaintiffs appealed the reduced award to the Seventh Circuit.

The Seventh Circuit started its analysis by suggesting that trial court judges be more active in its case management of these cases to "check runaway attorney's fees while the litigation is underway," rather than waiting until the case is over to review a fee request.  With respect to the substance of the appeal, the Court acknowledged that trial court judges have broad discretion to determine what fees are reasonable - in this case, the district court judge spent a significant amount of time and effort in reviewing line-by-line the attorney fee petition, and did not abuse her discretion in striking certain entries, reducing the hourly rate, and slashing the lodestar by 50%. The Court acknowledged that while a plaintiff who receives "excellent results" should receive the entire lodestar, where a plaintiff achieves only "partial or limited success," the lodestar should be reduced.  In this case, the plaintiff's success was severely limited ($2,000 in damages), and the reduction was appropriate.  In short, the Court upheld the trial court's reduced award.

Post Authored by Julie Tappendorf, Ancel Glink

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Supreme Court Declines to Hear Establishment Clause Case Involving Graduations in Churches

Supreme Court Declines to Hear Establishment Clause Case Involving Graduations in Churches

  Monday, June 23, 2014    Julie Tappendorf

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On June 16, 2014, the U.S. Supreme Court declined to hear an appeal by two Wisconsin high schools of a Seventh Circuit decision finding them in violation of the Establishment Clause of the First Amendment because they held their high school graduation ceremonies in churches.  That means that the Seventh Circuit's decision in Doe 3 v. Elmbrook School District (7th Cir. 2012) is final.

The Seventh Circuit had explained its ruling against the school districts as follows:  

high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity. . . . [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state. 

The Seventh Circuit's decision was not unanimous.  One of the dissenters, Judge Posner, wrote: 

To the reasonable attendee . . . it was obvious that the public high school that educated the graduates does not own the church and did not place in the church the various displays and iconography that disturb the plaintiffs. . . . [I]t would be totally unreasonable for any student to attribute to the District any endorsement of the message of the iconography; it belongs to – and they know it belongs to – someone else. It symbolizes the landlord’s view, not the District’s view. . . .

Similarly, the Supreme Court's denial of certiorari was also not unanimous.  Our friends at RLUIPA Defense do a great job summarizing the dissenting opinion to the Court's denial of certiorari. Justice Scalia, joined by Justice Thomas, argues that the Supreme Court should have granted certiorari to either hear oral argument or to vacate the Seventh Circuit’s judgment decision in light of the Court's recent decision in Town of Greece that upheld prayer at town council meetings against an Establishment Clause challenge.  

You can read more about the Supreme Court's decision to decline the appeal, as well as the dissent here.

Post Authored by Julie Tappendorf, Ancel Glink

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Supreme Court Protects Employee in First Amendment Case

Supreme Court Protects Employee in First Amendment Case

  Friday, June 20, 2014    Julie Tappendorf

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Public employees do not surrender their First Amendment rights by accepting public employment. That was the issue before the U.S. Supreme Court yesterday, when it issued a decision holding that the First Amendment protected a government employee who provided truthful sworn testimony outside the course of his ordinary job duties.  In Lane v. Franks, (USSCT, June 19, 2014), the director of youth program operated by a public community college conducted a payroll audit, discovered that an employee (who also happened to be a state representative) had not been reporting to work, and terminated her employment. Shortly thereafter, the representative was indicted and then convicted on various charges, including theft for receiving federal funds.  The director was terminated along with 28 other employees, but a few days later all but 2 of the terminated employees were reinstated.  The director sued the college and his supervisors, claiming they retaliated against him for testifying against the state representative in violation of his First Amendment rights. 

The district court and 11th Circuit Court of Appeals ruled against the director, finding that he was not entitled to First Amendment protections because he spoke as an employee acting pursuant to his official duties, not as a public citizen.  The Supreme Court disagreed, finding that the director's sworn testimony was outside the scope of his ordinary job duties and, therefore, entitled to First Amendment protections. Specifically, the Court determined that his speech was as a citizen on a matter of public concern (corruption and misuse of state funds is a matter of public concern).  

The Court noted that a public employee's employee's right to speak on issues of public concern must be balanced against the government's interest in promoting the efficiency of public services it provides through its employees.  Here, the Court emphasized that the director was compelled to testify on this matter by subpoena, and his testimony did not relate to his official duties (although the Court acknowledged that the testimony did relate to his employment).  Because the government interest was non-existent in this case, the director's speech was entitled to protection under the First Amendment.  

Post Authored by Julie Tappendorf, Ancel Glink

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Statutory Penalties under Withholding for Support Act Barred by Tort Immunity Act

Statutory Penalties under Withholding for Support Act Barred by Tort Immunity Act

  Thursday, June 19, 2014    Julie Tappendorf

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Plaintiff sued the McHenry County Conservation District seeking compensatory damages of $1,086.90 and a statutory penalty of $407,700 under the Income Withholding for Support Act. She alleged that the District's payroll vendor failed to process child support payments for five paychecks of a District employee (her ex-husband).  

The District filed a motion to dismiss, arguing that the statutory penalty was barred by the Tort Immunity Act as a "punitive award."  The circuit court rejected that argument but capped the penalty award at $50,000 ($10,000 per violation).  The District appealed.  

The appellate court agreed with the District that the penalty was punitive in nature and, therefore, barred by Section 2-102 of the Tort Immunity Act that provides that "[n]otwithstanding any other provision of law, a public entity is not liable to pay punitive or exemplary damages in any action brought directly or indirectly against it by the injured party of a third party."  The court noted the purpose of the Tort Immunity Act to protect local public entities and employees from liability arising from the operation of government and to prevent public funds from being diverted from their intended purpose to the payment of damages claims.  Although the District was required to process the child support payments in accordance with the Withholding Act, it was immune from the statutory penalty provisions of that Act.  In re Marriage of Jessica A. Murray, 2014 IL App (2d) 121253 (June 11, 2014).

Full disclosure: Ancel Glink represented the McHenry County Conservation District in this case.

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Court Rejects Police Officers' Race Discrimination Claims in Promotional Case

Court Rejects Police Officers' Race Discrimination Claims in Promotional Case

  Wednesday, June 18, 2014    Julie Tappendorf

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Two white police sergeants sued the Village of Hazel Crest, claiming that the Village's promotion of an African American officer violated their civil rights based on race discrimination.  The district court rejected the officers' claims, finding they did not present sufficient evidence that they were the object of unlawful discrimination.  On appeal, the Seventh Circuit Court of Appeals affirmed the district court's decision in favor of the Village in Garofalo v. Village of Hazel Crest, (7th Cir. June 12, 2014).

The Court first looked at the demographics of Hazel Crest, which in 2010 was 85.2% black and approximately 10.2% white.  The Court noted that despite these statistics, Hazel Crest had no black police officers in their supervisory ranks in 2005 when the new mayor stated he wanted to increase diversity in the department. In 2005, when Malcolm White was appointed deputy chief, four other alleged candidates for the position sued the Village.  The Court's analysis focused on the issue of whether the plaintiffs presented any evidence suggesting that they had a chance at the promotion in the absence of the impermissible consideration of race.  The court found none, and specifically held that the Village had presented non-discriminatory reasons for the decisions not to promote the plaintiffs, including that they suffered from lack of leadership, had a volatile and unstable personality, among others. As a result, the plaintiffs' claims of race discrimination failed.

Post Authored by Julie Tappendorf, Ancel Glink

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Ticket Quota Bill Signed by Governor

Ticket Quota Bill Signed by Governor

  Tuesday, June 17, 2014    Julie Tappendorf

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Illinois Governor Quinn signed SB 3411 over the weekend.  SB 3411 prohibits state, county, and local police departments from requiring police officers to issue a specific number of tickets or citations. Departments are also prohibited from using ticket quotas to evaluate a police officer's job performance, although a police department can evaluate an officer based on "points of contact." Points of contact are defined as other quantifiable contact made in the furtherance of an officer's duties such as the number of traffic stops completed, arrests, written warnings, and crime prevention measures, so long as the point of contact does not include the issuance of citations.

Post Authored by Julie Tappendorf, Ancel Glink

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Summer Workers Beware: No Property Interest in Seasonal Employment

Summer Workers Beware: No Property Interest in Seasonal Employment

  Monday, June 16, 2014    Julie Tappendorf

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In Kvapil v. Chippewa County, Wisconsin, (7th Cir., June 9, 2014), Kvapil was employed by the County as a seasonal employee between June 5, 2006 until June 27, 2008.  As part of his job orientation, he was given the Employment Handbook, and signed a receipt stating: 

This employee handbook has been prepared for information purposes only.  None of the statements, policies, procedures, rules, or regulations contained in this handbook constitutes a guarantee of employment, a guarantee of any other rights or benefits, or a contact of employment, express or implied.  

The Handbook also contained a provision entitled “At Will Employment” that stated: 

All employees of this County are ‘at will’ employees.  Based upon this, employment can be terminated by either the County or the employee, at will, with or without cause, and with or without notice, at any time. 

While employed by the County, he also had an ongoing zoning dispute with the County, during which he made numerous threats to the County administrator.  After one of the threats became hostile, Kvapil was suspended for one day without pay.  The County cited its zero-tolerance policy regarding threats and violence as the reason for the suspension.  Additionally, he  was informed that any further infractions would subject him to more severe discipline, up to and including, termination.  A few days later, the County was notified that plaintiff had run a private citizen off the road while in this course of his work for the County.  After an investigation. The County terminated plaintiff’s employment as a result of the driving incident and his violations of numerous personnel ordinances and Highway Department work rules.

After Kvapil was fired, he filed a federal lawsuit claiming that he had a protected property interest in his seasonal employment with the County and that the suspension and termination violated his due process rights.  After losing at the district court level, plaintiff appealed to the 7th Circuit, which affirmed the ruling in favor of the County.

The 7th Circuit first determined that Kvapil was an at-will employee based on the Handbook and his signed receipt, and his lack of an employment contract with the County.  The court also found that he had no property interest in his seasonal employment.  The court looked to Chippewa County Ordinance Section 48.62, which governs the discipline of employees, finding that the Ordinance made clear that  violations of certain work rules could lead to disciplinary actions including suspension and discharge.  The 7th Circuit noted that the Ordinance contained no language to provide for continued employment, nor did it create a system for renewal of employment.  Instead, the Ordinance simply set out disciplinary procedures. 

Kvapil also argued that he should have been given a hearing so he could provide defend against the suspension and termination.  The 7th Circuit found that without any property interest in the employment, the County was not required to offer Kvapil a hearing.  Although he contended that the County did not follow its own procedures when terminating him, the Seventh Circuit noted that a local government’s failure to follow its own procedural rules does not violate due process.  Because Kvapil  had no property interest in the seasonal employment and that the County did not violate his due process rights, his termination was lawful.

Post Authored by Erin Baker, Ancel Glink

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Bill Would Affect Township Notices and Advisory Referenda

Bill Would Affect Township Notices and Advisory Referenda

  Friday, June 13, 2014    Julie Tappendorf

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One of the bills awaiting Governor action is SB 497 that would amend the Township Code in two ways. First, it would modify the notice requirements for the annual and any special town meetings to require that notice be posted at least 15 (currently 10) days prior to the meeting.  Second, the bill would allow any group of registered voters to request an advisory referendum for consideration and a vote at the annual meeting.  

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Court Upholds New Orleans' Tour Guide License Requirement

Court Upholds New Orleans' Tour Guide License Requirement

  Thursday, June 12, 2014    Julie Tappendorf

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The City of New Orleans requires tour operators to apply for and obtain a City tour guide license. To qualify for a license, an applicant must pass an exam testing the applicant's knowledge of the historical, cultural and sociological developments in the City, cannot have been convicted of a felony within the past 5 years, pass a drug test, and pay a $50 fee.  Four tour guides sued the City, claiming that the license requirement violates their First Amendment rights. 

The Fifth Circuit Court of Appeals held in favor of the City, finding the tour guide license requirement constitutional.  Kagan v. City of New Orleans (June 2, 2014).  The court determined that the license requirement was "content-neutral" and that it promoted important government interests by protecting tourists and other visitors to the City.  The court also noted that the license requirement had no effect on the content of what tour guides say.  

Post Authored by Julie Tappendorf, Ancel Glink

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Police Department's Directive to Attend Event at Mosque Not Unconstitutional

Police Department's Directive to Attend Event at Mosque Not Unconstitutional

  Wednesday, June 11, 2014    Julie Tappendorf

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A police captain sued the Tulsa police department claiming that the TPD violated the Free Exercise and Establishment clauses when it ordered him or someone else from his department to attend a community event at a mosque.  The 10th Circuit Court of Appeals rejected his claims, finding that the order did not violate the First Amendment in Fields v. City of Tulsa, No. 12-5218 (10th Cir. May 22, 2014). 

The TPD had been providing security to the Islamic Society of Tulsa after the FBI had reported threats against the Society.  that there was a threat against it. After the threats had passed, the Society invited the police department and local FBI officers to attend a "law enforcement appreciation day" to thank those involved. When no police officers in the Tulsa police department RSVP'd to attend, Captain Fields was ordered to either attend, or send a subordinate.  The captain refused to attend, claiming it was a violation of his civil rights to enter a mosque unless it was directly related to a plice call.  

The captain subsequently filed suit against the TPD.  First, the Tenth Circuit found no Free Exercise violation since the order did not, as the captain's briefs contended, force him "to enter a Mosque" because he could have sent someone else.  Second, the Tenth Circuit analyzed his Establishment Clause finding that "no reasonable person could view the purpose or effect of the TPD's attendance at the event as suggesting that Islam is a preferred religion." It concluded that the "Establishment Clause does not prohibit governmental efforts to promote tolerance, understanding, and neighborliness."

The captain also alleged that TPD violated his Freedom of Association by punishing him for objecting to the order. The court held that TPD had not interfered with any such right, because Field was not prohibited from engaging in any association. His claim that he was being forced to associate with the Society was equally disposed of.

Post Authored by Julie Tappendorf, Ancel Glink

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School's Decision to Outsource Bus Services Not an Unfair Labor Practice

School's Decision to Outsource Bus Services Not an Unfair Labor Practice

  Tuesday, June 10, 2014    Julie Tappendorf

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In 2012, AFSCME filed an unfair labor practice charge claiming that a school district violated the Illinois Labor Relations Act when it decided to contract out its school bus services.  Specifically, AFSCME claimed that the decision to privatize bus services was in retaliation against the bus drivers and bus monitors for choosing to join the AFSCME union.  The labor board agreed with AFSCME and found the school district in violation of state labor laws.  The appellate court reversed in Community Unit Sch. Dist. No. 5 v. Illinois Educational Labor Relations Board, 2014 IL App. (4th) 130294. 

The appellate court found that the school district had legitimate and bona fide reasons for outsourcing bus transportation services. First, the school district demonstrated that the transportation department had experienced operational problems, including an excessive amount of absences with employees and an increasing number of parental complaints.  Second, the outsourcing would save the district a significant amount of money. Finally, the court found that the district bargained the issue of outsourcing in good faith, as required by the collective bargaining agreement. As a result, the district's decision to contract with an outside company for bus transportation services was not an unfair labor practice. 

Post Authored by Julie Tappendorf, Ancel Glink

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PAC Says FOIA Trumps Contract Provisions

PAC Says FOIA Trumps Contract Provisions

  Monday, June 09, 2014    Julie Tappendorf

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In its 4th binding decision of 2014, the Public Access Counselor interpreted the Illinois Freedom of Information Act to require the release of separation agreements even where the agreements included confidentiality provisions prohibiting release by either contracting party. PAC Op. 14-004.  Here, a reporter requested all settlement agreements involving the county since January 1, 2013.  The county provided copies of six agreements, but declined to release other agreements that contained confidentiality agreements, citing that release of these agreements would constitute a violation of privacy of the other parties to these agreements.  The reporter appealed to the PAC.  

The PAC first determined that settlement agreements are public records under section 2.20 of FOIA. The PAC acknowledged that no Illinois court has addressed the enforceability of confidentiality provisions in a settlement agreement since section 2.20 was enacted.  Nevertheless, the PAC relied on a general principle that a contract provision that violates a state law contravenes public policy and is not enforceable to find that the county should have released the settlement agreements because the confidentiality provisions were unenforceable.  The PAC rejected the county's argument that the personal privacy exemption should protect the settlement agreements because the agreements resolved allegations of sexual harassment, finding that the public's right to know about the county's expenditure of public funds outweighs any personal privacy rights of a complainant or victim of sexual harassment.  

In sum, in this opinion, the PAC determined that FOIA will trump contractual rights of parties.  The PAC also determined that a reporter's right to view settlement agreements will outweigh the privacy interests of a victim of sexual harassment because any so-called invasion of privacy would not be "unwarranted."

Post Authored by Julie Tappendorf, Ancel Glink

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Update on Illinois Legislative Session

Update on Illinois Legislative Session

  Thursday, June 05, 2014    Julie Tappendorf

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The Illinois Municipal League (IML) recently provided an excellent summary of the bills that affect municipalities that advanced (or did not) in the spring Illinois legislative session on its website.  We have reported on many of these bills in the past, and want to update you on the status of some of the more substantive bills that were introduced this session - you might want to pay particular attention to the first bill that would cap utility connection charges:

Bills that Passed Both Houses

Cap on Water and Sewer Tap-on Fees, SB 3507:  This bill would impose a cap on the amount a township or municipality can charge for water and sewer tap-ons or connections.  The maximum tap-on fee cannot exceed 1/6 of the estimated annual charges (or two months) for water and sewer services.  The IML estimates that this legislation could limit tap-on charges to less than $100 for single family homes. The bill passed both houses, and will take effect on January 1, 2015.  This could be a significant limitation on municipal authority, depending on the scope of the limitation (does it apply to all tap-on/connection charges or is it more limited in scope?) and how it might affect existing special service areas and special assessments.   

Access to IDOR Sales Tax Information, HB 3885:  This bill would provide non-home rule municipalities with the same access to sales tax information that home rule municipalities already have.  The bill passed both houses and has been sent to the Governor.

Attorneys Fees in Administrative Adjudications, SB 2829:  An amended form of this bill would allow a judge to award attorneys' fees to plaintiffs in administrative adjudication cases only if the decision by the municipal hearing officer was arbitrary and capricious.  If the plaintiff's appeal is frivolous, the judge can award attorneys' fees to the municipality.

FOIA Reform Bill, HB 3796:  We reported earlier this week on HB 3796 that would amend FOIA to include new regulations for "voluminous requests," among other changes.  That bill passed both chambers, and has gone to the Governor.     

Bills that Did Not Advance in Spring Session

Fire Department Minimum Manning Bill, HB 5485:  This bill, which we have reported on in the past, did not advance this session fortunately.  

Responsible Bidder Legislation, HB 924:  We reported on a recent amendment to this bill last week. Fortunately, this bill also did not advance in the spring session. 

Towing Rotation Bill, SB 2932:  This proposed legislation would require local police departments to maintain tow rotation lists of companies that meet or exceed specific requirements.  The legislation passed the House, but did not advance through the Senate.

Post Authored by Julie Tappendorf, Ancel Glink

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ASA in Trouble for Facebook Posts

ASA in Trouble for Facebook Posts

  Wednesday, June 04, 2014    Julie Tappendorf

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From Strategically Social:  Another story about employees/lawyers behaving badly on social media.  Florida Assistant States Attorney Kenneth Lewis is under fire for several Facebook comments, including the following posts:

On Mother’s Day, he posted: 

Happy Mother’s Day to all the crack hoes out there. It's never too late to tie your tubes, clean up your life and make difference to someone out there that deserves a better mother.

He also posted a photo of Justice Sonia Sotomayor with the following caption:

Reason enough why no country should ever engage in the practice of Affirmative Action again. This could be the result. Where would she be if she didn't hit the quota lottery? Here's a hint: 'Would you like to supersize that sir?' 

He also commented on a news article about an arrest for home invasion as follows:

They should have shot him in the head, anyone that invades another home in a violent manner should be executed on the spot." Yet another post complains that Florida is subject to a "constant flooding of the lowest common denominator from third world nations.

According to an ABA Journal article, immediately after his posts became public, he seemed unapologetic about his Facebook musings, stating “It's an inspirational message to do the right thing."  At a later press conference, however, he seemed to back off from his earlier statement, saying his posts were intended to get people talking about the issues and he was sorry if people were offended by his "poor choice" of words.  

The States Attorneys (his boss) issued a statement saying that while he didn't agree with his ASA's postings, his opinions were protected by the First Amendment.

Post Authored by Julie Tappendorf, Ancel Glink

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Farmers Insurance Dismisses Case Against Cook County Municipalities

Farmers Insurance Dismisses Case Against Cook County Municipalities

  Tuesday, June 03, 2014    Julie Tappendorf

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Hot off the presses today, Farmers Insurance has voluntarily dismissed its lawsuit against 99 Cook County municipalities and other units of local government.  We posted about the case last month here.  You may recall that Farmers Insurance had filed lawsuits against hundreds of governmental entities in Illinois claiming that the governments were at fault for flooding that resulted in claims paid out by Farmers Insurance.  It isn't clear whether Farmers will re-file the case, continue their litigation in other courts, or decided to dismiss all of its cases.  We will keep you posted.

Post Authored by Julie Tappendorf, Ancel Glink

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Bill Would Provide Relief for Voluminous FOIA Requests

Bill Would Provide Relief for Voluminous FOIA Requests

  Tuesday, June 03, 2014    Julie Tappendorf

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UPDATE:  Governor Quinn vetoed this bill, but his veto was overridden by both houses, so this became law.  

There may be some good news for public bodies straining under the weight of voluminous FOIA requests.

House Bill 3796 would amend the Illinois Freedom of Information Act to create a definition of "voluminous request" that would provide a public body with some relief in responding to a "voluminous request."  The bill has passed both houses, and now heads to the Governor.

A voluminous request would be defined as follows:

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

News media and non-profit, scientific, or academic organizations are exempt from the definition of "voluminous request" where their requests are to disseminate information to the public or are intended to be used for academic or scientific research.

A public body that receives a "voluminous request" would have 5 business days after receipt to notify the requester that his or her request is being treated as a "voluminous request".  The requester then has 10 business days to modify his or her request in a way that it would no longer be "voluminous."  If the requester doesn't respond or doesn't amend his or her request, then the public body can provide the requester with an estimate of the fees that will be charged to provide the documents, according to a new fee schedule for voluminous requests.  These new fees range from $20 for up to 2 MB of electronic data to $100 for more than 4 MB of electronic data if the document is not in PDF format, or from $20 for up to 80 MB of PDF data to $100 for more than 160 MB of PDF data.  The public body can also now charge up to $10/hour for examining records for necessary redactions, in addition to search and retrieval fees for responding to these type of requests. The new provisions also allow a public body additional time to respond to voluminous requests.

Another provision in the bill addresses records that a public body maintains online.  A new section 8.5 would provide that a public body is not required to copy and make available for public inspection a public record that is published on the public body's website unless the requester does not have reasonable electronic access.

The proposed legislation is lengthy, and somewhat complicated, but if enacted, is a step in the right direction for public bodies inundated with multi-part FOIA requests.

Post Authored by Julie Tappendorf, Ancel Glink

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No 4th Amendment Violation in Officers' Use of Deadly Force

No 4th Amendment Violation in Officers' Use of Deadly Force

  Monday, June 02, 2014    Julie Tappendorf

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The United States Supreme Court unanimously reversed the Sixth Circuit Court of Appeals in a case filed against police officers who had fired into a vehicle that had backed into them and then attempted to speed away.  The Sixth Circuit had denied the officers' motion to dismiss the Section 1983 suit, rejecting the officers' qualified immunity argument.

On appeal, the Supreme Court first held that the officers had not knowingly deprived the decedent's Fourth Amendment rights and had acted reasonably in using deadly force, considering the totality of the circumstances.  In the alternative, even if the officers' conduct had been a violation of the decedent's constitutional rights, the Court held they were entitled to qualified immunity.  Plumhoff v. Rickard, No. 12-1117 (May 27, 2014).

Post Authored by Julie Tappendorf, Ancel Glink

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