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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

Tuesday, September 30, 2014

Deadline Approaching to Change Elected Official's Salary

As most public officials know, an elected official’s compensation cannot be changed during the official’s term of office.  With the 2015 local elections rapidly approaching, public bodies that want to increase or decrease the salaries of the officials who will be elected at the April 7, 2015 election must do so at least 180 days prior to the date when the elected officials would take office.    

State statute says that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.”  50 ILCS 145/2. The challenge with this requirement is that the date that elected officials take office following the election varies depends on the form of government and, at times, upon the public body’s receipt of the election results.  For example, the Illinois Municipal Code specifies that terms commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but then that ordinance cannot fix the date later than the first regular or special meeting in the month of June after the election.  65 ILCS 5/3.1-10-15.  

So, if a government body wants to modify the salaries of its elected officials, it will have have to compute the applicable date based on an estimated time for receipt of the official election results from the county clerk and the meeting date on which newly elected officials will be sworn in. Usually, the swearing in meeting happens in May, following an April election.  As an example, if your board receives the election results in late April and holds its first meeting after receipt on May 4, 2015, the local elected officials need to be sworn in on that day and any ordinance increasing or decreasing the salaries of elected officials must have been passed by November 5, 2014.  

Because the date on which newly elected officials take office is different in various communities, some careful effort should be taken to make sure the date of any salary change is early enough so that no challenge can be made to the action.  Government bodies may want to contact their attorney if they are considering any compensation changes for their elected officials.

Monday, September 29, 2014

7th Circuit Upholds Springfield's Panhandling Ordinance

Update: the 7th Circuit reversed this opinion just one year later, applying the U.S. Supreme Court's decision in Reed v. Gilbert: read later blog post here

The City of Springfield, Illinois has an ordinance that prohibits panhandling in its downtown historic district.  That district comprises about 2% of the City.  The ordinance defines panhandling as an oral request for an immediate donation of money.  The ordinance permits, however, signs requesting money and oral pleas to send money later.  Individuals who were cited under this ordinance filed suit against the City, claiming that the ordinance violated their First amendment rights.  The 7th Circuit recently ruled in favor of the City, finding the ordinance content-neutral and constitutional.  Norton v. Springfield (7th Cir. Sept. 25, 2014).

The Seventh Circuit first reviewed decisions from five other courts of appeals, finding that three circuits found similar ordinances content-based (9th, 4th and 6th), while two circuits found anti-panhandling ordinances content-neutral (D.C and 1st).  Although the various panhandling ordinances were different in some respects, they all prohibit requests for money or valuables to be handed over immediately.  The U.S. Supreme Court addressed anti-panhandling ordinances in three cases, finding that a state fair could prohibit panhandling, a Postal Service could prohibit fundraising, and an airport authority could prohibit solicitation.  

The Seventh Circuit held that the ordinance was indifferent as to the requester's reason for seeking money, and, therefore, "Springfield has not meddled with the marketplace of ideas" in enacting the restriction. The court also noted that panhandlers are free to ask for money anywhere else in Springfield.  The court acknowledged the conflict between the circuits, recognizing that it is difficult to determine the line between content-based and content-neutral regulations.  The court concluded, however, that Springfield's ordinance was content-neutral and within the City's power.

The dissent, on the other hand, thought the ordinance was content-based and that the court should follow the decisions of the 9th, 4th, and 6th circuits finding these panhandling ordinances unconstitutional. Because the ordinance exempts requests for money (i.e., by use of a sign or a "deferred request"), in the dissent's view, the ordinance restricts the speaker's message based on what he or she says.  Because the ordinance is content-based, the dissent would have found it unconstitutional under the First Amendment's strict scrutiny standard. 

Municipalities may want to review their current anti-panhandling regulations to ensure that they are consistent with the Seventh Circuit's analysis and ruling in this case. 

Post Authored by Julie Tappendorf

Friday, September 26, 2014

IL-APA Planning Conference in Evanston

Don't miss the Illinois American Planning Association's annual conference that will take place in Evanston next week, October 1-3, 2014.  IL-APA will present dozens of sessions and workshops to educate planners, attorneys, and other land use professionals. Topics include law, ethics, economic development, housing, and zoning issues. 

Attorneys from Ancel Glink's land use group will participate in the following two sessions at the conference:

Ethics 360
Thursday, October 2nd - 3:15-4:45 p.m.
Presenters: Julie Tappendorf, Ancel Glink, Lee Brown, Teska Associates, Philip Kiraly, Village of Glencoe
This panel will bring the perspective of a planner, lawyer, and city manager to engage the audience in the evaluation of what to do to avoid ethical dilemmas and ethics violations

Friday, October 3rd - 8:30-10:00 a.m. 
Presenters: David Silverman and Greg Jones, Ancel Glink
Stay up to date on the most recent changes in Illinois planning and zoning law in a lively, interactive discussion about how to plan (and cope) in today's modern age.

You can find out more and register on the IL-APA website.

Thursday, September 25, 2014

No Unconstitutional “Taking” When Sheriff Seized Medical Marijuana

Our friends at the Inverse Condemnation blog recently reported on an interesting takings case involving medical marijuana.  In Young v. Larimer County Sheriff's Office, No. 13CA1338 (Sep. 11, 2014), the plaintiff filed a lawsuit against the county sheriff after the sheriff seized forty-two marijuana plants of Mr. Young's by cutting them off just above the roots.  Mr. Young claimed that the plants were “medicine” under the Colorado medical marijuana statute and not evidence of a crime as argued by the sheriff.  Consequently, he argued that the destruction of the plants was a taking under the state and federal constitutions and he was due just compensation. 

Both the trial court and the court of appeals agreed there was no unconstitutional taking under the U.S. Constitution because Mr. Young’s marijuana plants were not “property” deserving of protection, particularly where marijuana is still illegal under federal law.

As for Mr. Young's state takings claim, the court first determined the alleged taking (i.e., destruction of the plants) was not a taking because it was the seizure of evidence for a criminal prosecution.  The court noted that an exercise of the police power cannot be a taking, relying on previous takings cases. 

You can read more about this case here.  

Wednesday, September 24, 2014

OMA Claims Must Be Brought Within 60 Days

The School Facility Occupation Tax Law authorizes a county board in Illinois to impose a sales tax for school facility purposes if the voters approve the tax by referendum.  In this unreported case, Williamson County passed an ordinance imposing a countywide sales tax after the voters approved a referendum authorizing the tax.  P and S Grain, LLC v. Williamson County, 2014 IL App (5th) 130507-U.  The ordinance was voted on at a regular county board meeting, pursuant to an agenda item that referred to the action item as "Superintendent of Schools Resolution."  The ordinance was subsequently corrected and approved at a later meeting, pursuant to an agenda that listed the item as "Amend Ordinance 08-02-29-02, An Ordinance Imposing School Facility Retailers' Occupation and Service Occupation Taxes-Section 6."  

Shortly after approval of the amended ordinance, the state began collecting the tax.  From 2008 through 2012, about $23 million in taxes were distributed to county area school districts.  Two retailers subject to the tax filed a lawsuit claiming that the ordinance imposing the tax violated the Open Meetings Act because the agenda was not specific enough to notify the public that the county board would be adopting an ordinance to impose the tax.  The complaint also alleged a variety of other claims, including that the ordinance exceeded the county's authority.

The trial court ruled against the plaintiffs, finding that the claim that the first ordinance violated the OMA was time-barred because it was not brought within 60 days of the alleged violation.  As for the claim that the second ordinance violated the OMA, the trial court held that the agenda was adequate to meet the requirement of the OMA that the agenda "set forth the general subject matter of any resolution or ordinance that will be the subject of final action at that meeting" as required by section 2.02(c) of the OMA.  The trial court also rejected the plaintiff's authority argument.

On appeal, the appellate court agreed with the trial court that the plaintiff's first OMA claim was barred by the 60-day statute of limitations.  The appellate court also upheld the trial court's ruling that the county board's approval of the second ordinance did not violate the OMA, finding that the agenda was "specific enough to put the public on notice that action would be taken on a resolution imposing the sales tax."  

Although the court did not get into the substance of the plaintiff's allegations on the agenda description for the first ordinance, had the plaintiff's claim been timely, it is entirely possible that the agenda description "Superintendent of Schools Resolution" would not have met the OMA requirements of section 2.02.  Local governments should be mindful when they describe ordinances and resolutions that will be voted on at meetings to be sure that their agendas don't run afoul of section 2.02.  

Post Authored by Julie Tappendorf

Tuesday, September 23, 2014

IML Conference Materials

Last week, thousands of municipal officials from across the state were in Chicago to attend the Illinois Municipal League's annual conference.  There were hundreds of educational sessions, along with a number of networking events and activities.  Many of you may have stopped by one of Ancel Glink's sessions to listen in, or just to say hello - we appreciate that!  For those of you who missed the conference, we wanted to make sure you had an opportunity to download our session materials, which are linked below:

AG Attorneys
Handout Materials
Attorneys' Session

Thurs, 8:15 a.m. to 4:00 p.m
Steven Mahrt, Moderator
Various program materials are available on the IML's website here
2014 Year in Review: Illinois Tort Immunity Update (Attorneys' Session)
Thurs, 8:30 a.m.
Steven Mahrt
Darcy Proctor
Finance: Lessons from Detroit and Pension Cases
Thurs, 2:45 p.m.
Derke Price

Second Amendment and Zoning: The Other Side of Concealed Carry
Sat, 9:15 a.m.
Adam Simon
Dan Bolin
How Much Process is Due Process?
Sat, 10:30 a.m.
David Silverman
Julie Tappendorf
Clerks- Legislative and Legal Update
Sat, 10:55 a.m.
Keri-Lyn Krafthefer
Adam Lasker
Council Wars
Sat, 1:30 p.m.
Robert Bush
Stewart Diamond
Keri-Lyn Krafthefer
Derke Price
Julie Tappendorf
Steven Mahrt

Monday, September 22, 2014

Highland Park's Assault Weapon Ban Upheld

The Northern District of Illinois issued an opinion last week upholding the City of Highland Park's ban on assault weapons and large capacity magazines against a Second Amendment challenge. Friedman v. City of Highland Park (N.D. Ill. 9/18/14).  

The City had enacted an ordinance in June of 2013 prohibiting the possession, sale, or manufacture of certain types of assault-type weapons and any magazine that holds more than ten rounds of ammunition.  Right before the ban was to become effective, a City resident and the Illinois NRA filed a lawsuit alleging that the ordinance violated the Second Amendment.  

In analyzing whether the City's ordinance violated the constitution, the court first looked at a variety of U.S. Supreme Court and 7th Circuit decisions interpreting the Second Amendment which provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."  The court first noted that although the U.S. Supreme Court has recognized a a Second Amendment right to "possess and carry weapons in case of confrontation," there are limitations on this right.  Specifically, the court noted that the Second Amendment does not create "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."  Heller I.

The court then discussed the two-part test established by these cases for determining whether a gun law is constitutional.  First, the court must determine whether the regulated activity falls outside of the scope of the Second Amendment.  Second, if the City cannot show that the regulated activity is outside the Second Amendment's scope, then the City has to demonstrate that the restriction is justified.  If it cannot meet this burden, the ordinance is unconstitutional.

With respect to the first element, because the ordinance regulates a particular class of weapons, the question for the court was whether the weapons are commonly used for lawful purposes.  In the court's opinion, the evidence submitted by the parties did not resolve this question.  Although the NRA had argued that many individuals use assault weapons at firing ranges (a lawful use), the City countered that these type of weapons fall within the "dangerous and unusual weapons" exception from Second Amendment protection.  Because this particular issue was far from settled, the court determined that the City did not meet its burden of showing that the ordinance was outside of the Second Amendment's scope.

On the second element, however, the court agreed with the City that there was a close fit between the ordinance and its stated objective of protecting the safety of its residents.  The court determined that assault weapons had a "decidedly offensive purpose" like military weapons, rather than the self-defense purpose that the Supreme Court has found in handguns.  Applying a "not quite strict scrutiny" standard, the court determined that the ban did not violate the plaintiffs' Second Amendment rights. The court also acknowledged that City residents can still keep other types of weapons (including handguns) as well as an unlimited number of magazines holding 10 rounds or less, for self-defense.

It is very likely that the state NRA will appeal this ruling to the Seventh Circuit, and we will keep you advised of any future ruling in this case.

Post Authored by Julie Tappendorf 

Friday, September 19, 2014

Investigation Into Teachers' Facebook Activities Dropped

A school district decided to drop its investigation of 17 teachers who “liked” a Facebook post about contract negotiations that included a picture of an ax through a windshield.  The high school teachers’ association had posted a link to a news article on its Facebook page, and through a “glitch,” the post included the ax picture.  After union representatives objected to the investigation, the school board president said the investigation would not move forward.  You can read more about this here.

Post Authored by Julie Tappendorf

Thursday, September 18, 2014

Medical Cannabis Applications Due Next Week

With applications for cannabis facilities due no later than next week (the filing period is September 8-22, 2014), local zoning boards and city councils in Illinois have been busy considering zoning applications to allow these facilities within their jurisdiction.  Illinois medical cannabis law is arguably the strictest of the 24 laws that have been enacted across the country, allowing licenses for only 22 marijuana cultivation sites and 60 dispensaries, that have to be distributed among specified geographic regions throughout the state through a competitive licensing process.
One of the requirements in the state licensing application is a certification that the proposed cultivation facility or dispensary complies with all local building and zoning codes.  While municipalities cannot ban cannabis facilities outright, they can restrict them to specific districts or impose reasonable conditions on their permits.  Some municipalities have amended their zoning codes to require special use permits for the facilities; others have restricted them to particular zoning districts, such as the agricultural or industrial districts.
Although it was assumed that these facilities would be hotly contested, in reality many communities are coming around in favor of the facilities because of the potential economic benefits medical cannabis can bring.  Some communities have been actively negotiating with cannabis companies to provide financial and other benefits to the community if the facilities are approved.
Wherever Illinois' 60 medical marijuana dispensaries and 22 cultivation facilities are eventually located, it looks like patients will not be the only ones to benefit. Medical cannabis will be a boon to business in Illinois—not to mention a boon to government. The non-refundable state application fee for a cultivation facility license is $25,000; operating fees for successful licensees will total in the hundreds of thousands annually. And due to a little local clout in the decision-making process, counties and municipalities may end up benefiting as well.
Post Authored by Julie Tappendorf

Wednesday, September 17, 2014

States Attorney is a Public Official for Defamation Claim

An Assistant State's Attorney filed a lawsuit against an individual for statements he made in a letter to the editor of the local newspaper.  The letter expressed the defendant's displeasure with the ASA, and his "perceived" bullying of his son who had been cited for a traffic violation.  The defendant argued the case should be dismissed because the ASA is a public official and she failed to show that defendant's statements amounted to malice in her defamation claim.  Vicars-Duncan v. Tactikos, 2014 IL App (4th) 131064 (2014).

The trial court dismissed the ASA's lawsuit, finding that an ASA is a public official because her duties are "governmental in character and highly charged with the public interest." Because the ASA had not plead malice in her lawsuit against the letter writer, her defamation claim could not proceed. The appellate court agreed with the trial court, and discussed what a plaintiff has to prove in a defamation claim:

(1)    the defendant made a false statement about the plaintiff;
(2)    the defendant made an unprivileged publication of that statement to a third party; and 
(3)    that publication caused damages.

If the plaintiff is a public official, the plaintiff must also prove that the "statement was made with actual malice" - or with knowledge that the statement was false or reckless disregard of whether it was false or not.  This additional element makes it harder for a public official to prove a defamation case, which the court acknowledges is because public officials occupy important positions about which  the public has great interest.  The court acknowledged cases that had discussed whether an individual was a public official, including a police officer and a city attorney (public officials), and a school principal and a jailer (not public officials).  

Because the ASA was a public official, she was required to plead malice - which she failed to do.  As a result, her defamation case against the letter writer was properly dismissed.

Post Authored by Julie Tappendorf

Monday, September 15, 2014

10 Website Posting Requirements for Municipalities

Various laws have been enacted or amended over the past few years to require municipalities and other local governments to post certain notices or other public records on the municipal or government website.  It can be difficult to keep up with these new requirements and changes as the laws change quickly.  I have summarized some of these "website posting" requirements for Illinois municipalities (some also apply to other government entities):

1.  Annual Meeting Schedule.  A public body that has a website maintained by full-time staff of the public body must post on its website the annual schedule of regular meetings for the governing body (i.e., city council or village board).  That annual schedule must remain on the website until a new schedule is approved. 5 ILCS 120/2.02(b).

2.  Meeting Notices.  A public body must also post notice of the regular meetings of the governing body on its website (if maintained by full-time staff).  The meeting notice must remain on the website until the regular meeting is concluded.5 ILCS 120/2.02(b).

3.  Meeting Agendas.  A public body must also post on its website (if maintained by full-time staff) the agenda of any regular meetings of the governing body.  That notice must remain until the regular meeting is concluded.  5 ILCS 120/2.02(a).

4.  Meeting Minutes.  A public body must post on its website (if maintained by full-time staff) minutes of a regular meeting of its governing body open to the public within 10 days after the approval of the minutes by the public body.  The minutes must remain on the website for at least 60 days after their initial posting.  5 ILCS 120/2.06(b).

5.  Employee Compensation Package.  6 days after approving the annual budget, a municipality that participates in the IMRF must post on its website the total compensation package for each employee having a total compensation package that exceeds $75,000.  Also, at least 6 days prior to approving an employee compensation package that equals or exceeds $150,000, the municipality must post the total compensation package information on its website. Alternatively, a municipality can choose to post a notice on its website where compensation package information can be obtained.  For municipalities without a website, the information must be posted at village or city hall. 5 ILCS 120/7.3.

6.  Information About the Public Body.  A public body must post on its website, if it maintains one, information about the public body including (1) short summary of its purpose; (2) block diagram of its subdivisions; (3) total amount of its operating budget; (4) number and location of all offices; (5) number of full and part time employees; (6) list of advisory boards, commissions, and committees; (7) the process for requesting public records under FOIA; (8) name of FOIA officer; (9) address where requests should be directed; and (10) FOIA fees.  5 ILCS 140/4.  

7.  Audit Reports.  [NEW - Effective January 1, 2015).  A municipality must post on its website a copy of the audit management letter and audited financial statements submitted by the auditor.  65 ILCS 5/8-8-10.5.

8.  ADA Notice.  A municipality that maintains a website must post the name, office, address, and telephone number of the ADA coordinator, if any and the grievance procedures, if any, adopted by the municipality to resolve ADA complaints.  65 ILCS 5/1-1-12.

9.  Foreclosure Notices and Orders.  A municipality must post on its website the address where foreclosure notices and final confirmation sale orders should be sent.  735 ILCS 5/15-1503 & 1508. 

10.  Miscellaneous Website Posting Requirements [Chicago only].  Municipalities of 1,000,000 population or more (Chicago) must post a variety of other documents on its website relating to TIF projects.  This law does not apply to other municipalities.  65 ILCS 5/11-74.4-8d.  

This list is not meant to be exhaustive, and it is likely that new website posting requirements will be established as more governments utilize their websites to disseminate information.  

Post Authored by Julie Tappendorf

Thursday, September 11, 2014

Village Violates FOIA By Not Searching All Records Systems

The PAC issued its 10th opinion for 2014 recently, finding a public body in violation of FOIA.  PAC Op. 14-010.  A news reporter filed a FOIA request with Sauk Village asking for records pertaining the village clerk's and a trustee's trip to Washington DC for the "Building One America Summit."  The Village responded that it had no responsive public records because the trip was not sponsored, approved, or funded by the Village and the trip did not "relate to official actions" nor did it involve the transaction of public business or affairs.  The reporter filed a complaint with the PAC, and the PAC concluded  that (1)  the records were public records and (2)  the Village failed to conduct a reasonable search, and ordered the Village to "search all recordkeeping systems - including the Village Clerk's records that are likely to contain responsive information concerning the summit and to provide those records" to the reporter.   The Village responded again that there were no responsive records.

Eight months later, the reporter filed another FOIA request for records relating to the summit.  The Village denied portions of the request on the basis that the request were unchanged or identical to the previous request and that the Village had no responsive records.  The reporter again appealed to the PAC.

Citing federal cases interpreting the federal FOIA, the PAC stated that a public body is required to conduct a "reasonable search tailored to the nature of a particular request." In this case, the PAC determined that the Village did not prove that it made any efforts to locate records responsive to the request.  

Based on this opinion and a previous opinion issued earlier this year, the PAC's position is that a public body must not only conduct a search for records, but it also has an obligation to prove to the PAC that it conducted a search "of all records systems likely to contain responsive records."  The PAC's opinion is supported solely by federal case citations, presumably because there are no Illinois court cases that have interpreted the Illinois FOIA to require such proof.  

There is no argument that a public body should conduct a reasonable search for records in response to a FOIA request.  The PAC is taking that a step further, however, by requiring a public body to prove that it conducted a search of all records systems.  In those situations where there simply are no responsive records, the burden will be on the public body to somehow prove that these records don't exist - in essence, prove a negative.  It's not clear how a public body can do that shy of providing access to its paper files and turning over passwords to its electronic records systems to let the PAC do its own search.  

Post Authored by Julie Tappendorf

Wednesday, September 10, 2014

Employee Investigative Reports Subject to FOIA

According to recent Public Access Counselor (PAC) and court opinions, reports of internal investigations of alleged public employee misconduct are subject to public disclosure pursuant to the Freedom of Information Act. In a binding opinion, (Public Access Opinion 13-011) the PAC addressed whether or not internal investigative reports concerning employee misconduct by the assistant police chief were exempt from disclosure under section 7(1)(n) of the Freedom of Information Act. Section 7(1)(n) exempts from disclosure records “relating to a public body’s adjudication of employee grievances or disciplinary cases; however this exemption shall not extend to the final outcome of cases in which discipline is imposed.”  The City of Bloomington argued that its investigative records were exempt as records relating to a public body’s adjudication of an employee’s disciplinary case. In this particular case, the assistant chief was involved in a traffic accident. The city asserted that an informal “adjudication” occurred when the chief of police reviewed the investigative reports and imposed a five day suspension. No formal grievance or formal adjudication was ever held.

In finding that these reports had to be released, the PAC emphasized the strong public interest in access to a public body’s internal investigation into a personnel matter. “Disclosure of a full and complete account of a public body's investigation of allegations of employee misconduct ensures that the investigation is consistent with the public body’s internal rules and procedures and that the discipline imposed, if any, is consistent with the public body’s findings.”

Given these decisions employers may want to consider engaging an attorney on behalf of the public body for employee misconduct investigations.  By placing an attorney in charge of an investigation the attorney client exemption found in section 7(1)(m) of the Freedom of Information Act may apply. Section 7(1)(m) exempts from disclosure:  “Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body….”

Monday, September 8, 2014

Public Body Cannot Require a Person to Disclose Address During Public Comment

Just last month, we reported on the 35 non-binding opinions issued by the Public Access Counselor interpreting and applying the public comment provision of the OMA (section 2.06(g)).  The PAC has now issued a binding opinion on the subject of public comment.  In the 9th binding opinion of 2014, the PAC said that a public body cannot require an individual to disclose his or her home address during public comment.  PAC Op. 14-009.

The Lemont Village Board held a meeting on April 14, 2014.  The Board had a practice of asking members of the public who wished to speak during public comment to provide their home address prior to addressing the Board.  Ms. Hughes initially declined to provider her address, but then provided it before speaking during public comment. She subsequently filed a complaint with the PAC office.

The PAC reviewed section 2.06(g) which provides individuals with an opportunity to address public officials under rules established and recorded by the public body.  The PAC acknowledged that although the statute does not specifically address the types of rules public bodies may adopt, public bodies can generally adopt reasonable "time, place, and manner" rules that are necessary to further a significant governmental interest, citing federal cases that did not interpret the OMA but involved First Amendment claims.  The PAC then reviewed Lemont's public comment rules that had been previously enacted by ordinance, and found that they did not expressly require members of the public to provide their home addresses before speaking.  The PAC rejected Lemont's "custom and practice" of requiring individuals to state their address, stating that all limitations on public comment must be detailed in the rules.

Although the opinion could have concluded here - that the Lemont Village Board cannot enforce a limitation that is not recorded in a written policy (the address disclosure) - the PAC went a step further and stated its opinion on the address disclosure requirement.  In the PAC's opinion, "section 2.06(g) does not support a requirement that a person must provide his or her complete home address prior to being allowed to make public comment."  Even if Lemont had included the address disclosure requirement in its established and recorded rules, "such a rule would impermissibly exceed the scope of the rulemaking contemplated by section 2.06(g)."   Implying that the issue is related to an individual's right to freedom of speech under the First Amendment (rather than a statutory right under the OMA), the PAC concluded as follows:
Requiring a member of the public to provide his or her complete home address prior to speaking may have a chilling effect on individuals who wish to speak at public meetings. Therefore, we conclude that requiring speakers to state their home addresses prior to addressing public bodies violates section 2.06(g) of OMA, even if such a rule is established and recorded by the public body.
The PAC's public comment opinions are beginning to look less like statutory interpretations and more like court decisions on questions of a constitutional nature - arguably, well outside the PAC's jurisdiction.  

Post Authored by Julie Tappendorf

Photographs are Not "Biometric Identifiers" Under FOIA

The PAC recently released its eight opinion for 2014, finding a public body in violation of FOIA for denying a reporter's request for photographs of a former employee.  You can read the opinion here: PAC Op. 14-008.

A reporter for Patch.com filed a FOIA request with the Will County Sheriff's department for personnel records and photographs of a former deputy sheriff.  The county denied the request for photographs of the deputy sheriff on the basis that the photographs constitute "private information" under section 7(1)(b) of FOIA because they contain "biometric identifiers" that could be used to identify biological attributes.  The reporter appealed to the PAC.

The PAC first interpreted the term "biometric identifier," finding that it was limited to unique physical or behavioral characteristics that identify a person like a fingerprint or voice pattern.  The PAC determined that a photograph of the former deputy sheriff's head, face and shoulders was no different than a photograph on a drivers' license, and therefore did not focus on any unique physical attribute of the former employee.  The PAC also noted that the Biometric Information Privacy Act defines biometric identifier as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry" and expressly excludes "writing samples, written signatures [and] photographs."  Further, the PAC noted that the definition of "private information" in FOIA did not specifically list photographs.  

The PAC concluded that photographs are not "biometric identifiers" exempt from release under 7(1)(b), and the county must release the photographs to the reporter.

Post Authored by Julie Tappendorf

Friday, September 5, 2014

Firefighters Do Not Have the Right to Negotiate Staffing Levels

Minimum staffing has long been a hot button issue for Illinois Fire Unions and their members. Minimum manning requires that an employer have a certain number of firefighters on a shift.  If the number falls below the agreed upon minimum, then the employer is forced to pay overtime to ensure that the minimum number of firefighters are on duty.  With vacation days, sick days and Kelly days, the task of maintaining minimum manning is a daunting one for employers. 

The longstanding question regarding minimum staffing issues for firefighters has been whether or not municipalities are required to bargain over minimum staffing.  Fire Union’s have maintained since the holding in Village of Oak Law v. Illinois Labor Relations Board, State Panel, 964 N.E.2d 1132 (1st Dist. 2011) where the court found that the Illinois Public Labor Relations Act did not exclude staffing levels from interest arbitration and that minimum staffing is a mandatory subject of bargaining in all fire contracts.  Many employers have argued that the holding is specific to Oak Lawn and does not make minimum manning a mandatory subject of bargaining.  An Administrative Law Judge recently agreed with that position.

In a case involving the Village of Glenview and Glenview Professional Firefighters Local 4186, ALJ Heather Sidwell held that the Village of Oak Lawn does not make minimum staffing a mandatory subject of bargaining for firefighters, rather the issue is subject to a factual determination.  The tests for determining whether or not a particular topic is a mandatory subject of bargaining are set forth in Central City Education Association, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill.2d 496 (1992).  Applying these factors to the Glenview case, the ALJ held that minimum staffing was not a mandatory subject of bargaining.  This decision clearly strengthens an employer’s argument that minimum staffing is not a mandatory subject of bargaining for firefighters.  This battle is unlikely to end with the ALJ’s decision.  An appeal of this decision is all but certain given the IAFF’s commitment to encroaching upon managements’ right to set and maintain staffing levels.

This commitment is further illustrated by House Bill 5485 (“HB 5485”), the latest in a series of proposed legislation which would codify the bargaining requirement of staffing.  This bill required that interest arbitrators include minimum staffing in their decisions, thereby making it a mandatory subject of bargaining.  The bill stalled in the last legislation session.  However, it is probable that given the ALJ’s decision in the Glenview case discussed above, the IAFF will make efforts to revive HB 5485 in upcoming legislative sessions. Passage of this kind of legislation or a reversal in the Glenview case would drastically change the bargaining landscape for fire fighters, resulting in the loss of a very significant management right as well as an increased burden on taxpayers.

Thursday, September 4, 2014

Schools Must Comply with Local Zoning

UPDATE:  The school district is appealing this decision to the Illinois Supreme Court.  We will update the blog as this case proceeds.

Previously, we reported on a case involving a school district that had constructed bleachers without obtaining city zoning approvals. The neighboring property owners sued the school district, which brought the city into the case. The district defended its actions by claiming it was exempt from local zoning.  The trial court disagreed, ruling that school district's cannot ignore local zoning regulations.   

That ruling was appealed to the Illinois appellate court, which just issued a ruling yesterday. In Gurba v. Community HS Dist. 155, the appellate court upheld the trial court's ruling that the school district was required to obtain zoning approvals prior to installing the bleachers.

The appellate court rejected the school district's argument that the city was preempted from applying its zoning regulations on school property because the state constitution declares public education to be a matter of statewide concern.  The court first noted that the city was a home-rule municipality with the power to enact and enforce zoning ordinances.  While a home rule unit cannot enact ordinances that infringe upon public education, the court concluded that land-use regulations have no inherent impact on the substance of public education.  Moreover, the court determined that the Illinois School Code expressly authorizes school districts to seek zoning relief for property it holds. That authorization would have no meaning if a school district were exempt from local zoning.

This is a good decision for municipalities that may have had to defend their local ordinances against claims by some school districts that they are exempt from zoning.  This decision does not change the fact that school districts have their own building code (contained in the Illinois School Code) but should clear up any misunderstanding about application of zoning regulations to school buildings and facilities.

Post Authored by Julie Tappendorf

Wednesday, September 3, 2014

City Hall 10 Commandments Display Violates Establishment Clause

From RLUIPA Defense:  New Mexico Federal Court Rules Ten Commandments Display Outside City Hall Violates Establishment Clause

Our friends at the RLUIPA Defense blog reported recently on a case out of New Mexico where a district court held that the display of a five-foot, granite Ten Commandments monument outside City Hall violated the Establishment Clause “because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  Felix v. City of Bloomfield.  

In 2007, the Bloomfield City Council approved adopted a resolution establishing a forum policy for the placement of historical monuments on the City’s lawn.  In 2011, a former City Council member constructed a five-foot tall granite monument of the Ten Commandments on the lawn. The monument contains disclaimers that state “any message hereon is of the donors and not the City of Bloomfield” and that the information on the monument does not “necessarily reflect the opinions of the City.”  

Plaintiffs filed a lawsuit, alleging that the Ten Commandments monument violates the Establishment Clause of the First Amendment to the U.S. Constitution.  The City argued it was a public forum and the monuments were just one of many displayed at City Hall.  The plaintiffs argued that the monuments were "government speech."  The District Court agreed with the plaintiffs because (a) the monument is permanent within the practical and legal sense, since it has been authorized by the City for 10 years and can be renewed, and (b) the disclaimers on the monument do not overshadow the City’s decision to allow the monument on public property.  The District Court rejected the City’s contention that the City’s forum policy shows that public property is open to all private parties to express different historical viewpoints, finding that for almost four years, there was no obvious sign that the City had opened the City Hall Lawn as a public forum. Instead, the City has merely provided ‘selective access’ to the lawn, and the court determined that the City violated the Establishment Clause "because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.” 

The court noted that was “a very close case,” and the result could have been different with a slight change of the facts.  “For example, had the Ten Commandments monument been established last in the series of monuments, after placement of the Declaration of Independence, Gettysburg Address, and Bill of Rights monuments, the First Amendment may not have been offended.  Had the Ten Commandments monument been arranged at the rear of the north lawn near the municipal building complex, with the other three monuments (consisting of six tablets) in front of it, the Ten Commandments monument may have passed muster.  Had the Ten Commandments monument been installed without a dedication event or with a ceremony absent religious overtones, the ultimate conclusion may have differed. Had the City of Bloomfield adopted the amended policy permitting monuments first, with language clearly allowing only temporary residence of a monument, the result might have changed.”

Tuesday, September 2, 2014

New Law Expands Park District Borrowing Authority

Under a new law (P.A. 098-0906), Illinois park districts may now accept short term loans directly from banks, savings and loan associations and credit unions.  The Act grants authority for park districts to borrow money from those financial institutions for any corporate purpose through the issuance of a promissory note or similar debt instrument.  The loan must be repaid within two (2) years from the time the money is borrowed.  The loan must be authorized by an ordinance adopted by the board and signed by the president and secretary.  Repayment of the loan is valid whether or not the loan payments were included in the Park district’s appropriation ordinance. Park district debt that does not meet the criteria established in this Act must still be issued through one of the other debt instruments authorized by the Park District Code such as a bond, debt certificate, or installment contract.

This Act took effect upon passage (August 15, 2014) and gives park districts the flexibility to work directly with local financial institutions for short term loans, while potentially avoiding some of the cost and time involved in the issuance of bonds, debt certificates, and installment contracts.  

Post Authored by Jim Rock, Ancel Glink

Monday, September 1, 2014

Upcoming Stormwater Workshop

Brent Denzin of Ancel Glink will be presenting at an upcoming workshop on stormwater management and natural resources protection, detailed below:

2014 Beyond Basics Workshop
September 9, 2014, 1 – 3:30 p.m., Morton Arboretum
Better Ordinances for Sustainable Stormwater Management, Natural Resources Protection, and More Vital Communities

For more information, here is a link to the conference: http://www.theconservationfoundation.org/event.php?EventID=18

The workshop will be presented by a team with expertise in engineering, planning, community development, and municipal law. It will address common ordinance implementation issues and opportunities, such as: 
  • Eliminating barriers in existing subdivision and zoning codes
  • Providing incentives, such as detention credits, for green infrastructure innovation
  • Emphasizing cost-effectiveness of new approaches
  • Long-term maintenance considerations
  • Being proactive in anticipating new state/federal regulations
  • Encouraging green infrastructure to also enhance community character and quality of life
Workshop participants will receive a comprehensive ordinance checklist that was developed initially by Geosyntec Consultants for several watershed planning projects. More recently, in cooperation with the Chicago Metropolitan Agency for Planning, the checklist has been expanded with an extensive list of regional and national references.