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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

Thursday, October 30, 2014

Supreme Court Will Hear Facebook Threat Case in December

In a little over a month, the Supreme Court will hear the case of a man who threatened to kill his wife on Facebook.  U.S. v. Elonis.  After Anthony Elonis lost his wife and job in 2010, he expressed his frustrations on social media.  Specifically, Elonis made repeated threats on Facebook to his ex-wife, law enforcement, and others. 

One of his Facebook posts is as follows:
Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
He also posted the following : 
If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.
After receiving a complaint, the FBI began monitoring his Facebook postings, and Elonis was subsequently arrested and charged with transmitting to interstate commerce communications containing a threat to injure the person of another, a violation of federal law.  He was convicted by a jury and sentenced to 44 months in prison. 

Elonis appealed his conviction.  He argued that the lower courts erroneously applied an objective, rather than subjective, test in determining whether his Facebook postings were protected under the First Amendment.   Under that test, if his statements are considered a "true threat," then the postings are not protected speech under the First Amendment and his conviction would stand.  If they were not a “true threat” (Elonis’ argument), then they are protected speech, and his conviction would be overturned.  

Elonis argues that because he did not subjectively intend his Facebook posts to be threatening, he should not have been convicted.  The trial court and the 3rd Circuit Court of Appeals, however, used an “objective” standard to determine whether his postings to be “true threats,” finding that his Facebook posts were speech that is so clearly objectionable, any objective listener could be scared.  The issue before the U.S. Supreme Court is whether the true threats exception to speech protection under the First Amendment applied in this case, and whether the lower courts applied the proper test.

Post Authored by Julie Tappendorf

Wednesday, October 29, 2014

Sheriff Sued Over Social Media Policy

We've reported on a number of NLRB decisions striking down social media policies for being too broad because they regulate protected employee conduct.  Although the NLRB doesn't apply to local government employees, public employees are still entitled to certain protections for their social media activities.  

When a government goes too far in regulating the social media activities of its employees, there are constitutional implications in addition to labor rights.  The former is the subject of a case filed against the Harris County Sheriff (HCSO), where employees allege that a social media policy violated their First Amendment right to free speech.  

The following are a few examples of policy provisions that have been challenged:
  • An employee's actions must never bring the HCSO in disrepute
  • Personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of the HCSO
  • Personnel shall not post any information pertaining to any other member of the HCSO
  • Employees cannot engage in negative speech about the HCSO

It will be worth watching this case to see how a court deals with a government social media policy - there are a lot of NLRB decisions on private employers, but very little guidance for government employers (the few cases that have been filed have mostly settled).

You can read the complaint here:  Pittman v. Garcia (S. Dist. Texas, 2014).  

Post Authored by Julie Tappendorf

Tuesday, October 28, 2014

Update on Medical Marijuana Applications

Last year, the Illinois General Assembly enacted the Medical Cannabis Pilot Program Act.  That Act authorizes 22 cultivation centers (marijuana growing facilities) and 60 medical marijuana dispensaries throughout the state of Illinois.  The deadline for applying for either of these licenses was September 22nd.  Based on numbers reported by the state, there are significantly more applicants than licenses.  You can read the report here.

Cultivation Center License Applications

The Illinois Department of Agriculture (the agency responsible for licensing cultivation centers) received 159 applications for the 22 available cultivation center licenses.  Each state of Illinois police district is allowed one cultivation center, and each of the districts received multiple applications.  For example, District 2, made up of DeKalb, DuPage, Kane, Lake, and McHenry counties received 9 applications for its one cultivation center license.  Police district 5, made up of Grundy, Kendall, and Will counties received 14, while police district 6, encompassing DeWitt, Livingston, and McLean counties received 10 applications.  Cook County received 9 applications, but gets 2 licenses because, well, it's Cook County (ok, it's really because Cook County has 2 police districts).

Dispensary Applications

The Illinois Department of Financial and Professional Regulation received 214 dispensary applications for the 60 available dispensary licenses.  Only three districts received no applications for a dispensary - a second application round will be held in these three counties.  The highest number of applications were submitted in DuPage County (23 applications).  

Neither agency has provided a definitive date for issuing licenses.  

Patient Applications

The Illinois Department of Health is already accepting patient applications for anyone whose last name begins with A to L.  Applications for those with names starting with M to Z can submit applications beginning on November 1st.

Post Authored by Julie Tappendorf

Monday, October 27, 2014

Neighbors Can Bring Private Nuisance Action Against Wind Farm

From our friends at the Law of the Land blog comes a case out of Vermont:  Brouha v Vermont Wind, LLC, 2014 WL 4748221 (DC Vt. 9/23/2014)

A neighboring property owner next to the Sheffield Wind Project filed a lawsuit against the defendants claiming that their wind facilities created an unreasonable noise impact that prevented the plaintiff from gardening, eating outside, walking and other outdoor activities, resulting in stress, pain and suffering and loss of the use of the neighboring owner's property.  The defendants argued that the private nuisance claim was barred because the property owner had previously sued and lost a challenge to the issuance of the permit to allow the wind farm.  

The district court disagreed with the defendants, finding that the property owner's private nuisance claim could continue because it was not the same type of claim as the general public nuisance claim that was previously dismissed.  Specifically, the court determined that the standard that applies to a private nuisance action (i.e., interference with the use and enjoyment of another's property that is unreasonable and understanding) is not the same as the standard applied in the previous case that focused more on the impact on the community.

Post Authored by Julie Tappendorf

Friday, October 24, 2014

Court Upholds Part of Chicago's Amended Firing Range Ordinance

After its blanket firing range ban was held unconstitutional, Chicago adopted new zoning restrictions, construction requirements, and business regulations for firing ranges in the City. In a new Second Amendment challenge, the plaintiffs in Ezell v. City of Chicago argued that the regulations violated their right to acquire and maintain proficiency in the use of firearms. The City argued that the laws are constitutional because they regulate rather than restrict constitutional rights and, in a recent decision, the District Court for the Northern District of Illinois upheld many of Chicago’s firing range regulations.

Since the zoning restrictions, construction requirements, and business operation regulations clearly implicated the plaintiffs’ Second Amendment rights, the court analyzed each individual regulation by weighing the burden it placed on plaintiffs’ Second Amendment rights against the evidence the City relied on to justify it.

a    Zoning Restrictions

The first zoning restriction the court examined limited the location of firing ranges to manufacturing districts with special use approval. The court held that this regulation was unconstitutional because the restrictions were too burdensome in light of the public interest being served by the regulation.

The second zoning restriction required firing ranges to be at least 500 feet from residential zones, schools, day-care facilities, places of worship, museums, libraries, or hospitals and at least 100 feet from any other firing range. The court upheld this requirement because it seeks to protect important interests and is not a substantial burden on Second Amendment rights.

b    Construction Requirements

Next, the court evaluated the requirements that firing ranges have ballistic-proof walls and doors, separate interlocked ventilation systems, and sound limits. The court found that these requirements were constitutional because the regulations are reasonable, directly advance the safety of citizens, and are supported by substantial evidence. Further, the court stated that these requirements “merely regulate” and impose only a minor burden on Second Amendment rights.

c    Business Operations

Finally, the court considered the constitutionality of the regulations restricting the business operations of firing ranges. The court held that the regulations that no person under the age of 18 be permitted in a shooting range facility, that all managers, range masters, and employees possess FOID cards, and that a range master be present during all operating hours were constitutional because the City’s rationale is sufficient to justify the small burden each regulation places on the plaintiffs’ Second Amendment rights.

In contrast, the restriction permitting ranges to operate only between 9:00 am and 8:00 pm was not constitutional. The City failed to provide evidence “tending to show that a range has a greater impact on traffic or police inquiries than any other business or location” or that “criminal activity involving a firing range can be expected to increase after 8 p.m.” 

Post Authored by Dan Bolin & Caitlyn Sharrow, Ancel Glink

Thursday, October 23, 2014

San Francisco's Rental Ordinance Unconstitutional

Our friends at Inversecondemnation.com recently posted about a case striking down San Francisco's rental ordinance as violating the Takings Clause of the U.S. Constitution: Federal Court: San Francisco's Housing ExactionViolates Nollan-Dolan-Koontz

San Francisco had enacted an ordinance that required property owners who rent their properties to get a permit before they could stop renting their property out to tenants.  The ordinance also required the owners to pay cash to any displaced tenant in the amount of 24 times the difference between the tenant's current rent and the fair market value of a comparable unit in San Francisco. The plaintiffs, property owners who wanted out of the rental business were subject to "relocation payments" amounting to $118,000 for one owner and more than $1 million for another property owner, sued the City to challenge the rental ordinance as unconstitutional.

The district court agreed with the owners, finding San Francisco's ordinance unconstitutional because the relocation payments did not meet either the "essential nexus" or the "rough proportionality" test established by the U.S. Supreme Court in Nollan-Dolan-Koontz.  You can read more about the case and a more detailed summary of the rationale behind the district court's decision here.

Post Authored by Julie Tappendorf

Wednesday, October 22, 2014

School District Ordered to Tear Down Bleachers

You may recall that we previously posted about a lawsuit filed by neighboring property owners against a school district challenging the high school's installment of bleachers without obtaining the proper zoning approvals.  You can read about the trial court ruling here and the appellate court ruling here.  Both the trial court and the appellate court had ruled in favor of the neighbors and against the school district, finding that the school district was obligated to comply with municipal zoning regulations.   We have two updates on this case:

First, the school district has filed an appeal asking the Illinois Supreme Court to hear the case and reverse the lower court rulings.  The Supreme Court has not yet decided whether it will hear the case but we will keep you posted.

Second, the trial court judge recently ordered that the school district remove the bleachers to comply with the trial and appellate court rulings.  According to the order, the school district has until December 1st to comply (that allows the school to finish out the current football season), although it is likely the school district will appeal that ruling as well.  

Post Authored by Julie Tappendorf

Tuesday, October 21, 2014

Public Construction Bond Act Protects Village from Subcontractor Claim

The Illinois Supreme Court recently ruled in favor of the Village of Antioch in Lake County Grading Company LLC v. Village of Antioch, 2014 Il 115805 (October17, 2014). This case involved an interpretation of the Public Construction Bond Act (30 ILCS 550/1). The Village had entered into a contract with Neumann Homes for the construction of public improvements within subdivisions developed by Neumann. Lake County Grading performed work for Neumann on the public improvements.  Neumann failed to pay Lake County Grading and then Neumann filed for bankruptcy.  Lake County Grading sued the Village seeking payment for work performed.

You may remember that we had previously reported on the appellate court decision in this case that was decided last year.  In its decision, the appellate court had ruled in favor of Lake County Grading, finding that because the Village had failed to obtain a payment bond as required under the Public Construction Bond Act, Lake County Grading could assert a third party beneficiary claim against the Village.

The Village appealed the adverse ruling to the Illinois Supreme Court.  Fortunately, the Supreme Court interpreted the Public Construction Bond Act more favorably to the Village, finding that the Village's requirement that Neumann Homes post a performance bond satisfied the Public Construction Bond Act because the statute deems payment to be part of a bond for public improvements under the Act.  As a result, Lake County Grading’s only recourse is against the bond company, not the Village.  Unfortunately for Lake County Grading, the six (6) month period to file claims under the bond passed so Lake County Grading is left without a remedy.

The Supreme Court's ruling provides protection to municipalities that fail to obtain both a payment and performance bond in connection with public improvement contracts.  However, it is important to note that municipalities that fail to obtain any bond, either performance or payment, could be faced with a third party beneficiary claims for payment. 

Post Authored by Steve Mahrt, Ancel Glink

Monday, October 20, 2014

Supreme Court Takes on Hotel Ordinance Case

The U.S. Supreme Court is taking new cases that it will hear and decide in the future, some of which may be of interest to local governments, including a case the Court accepted today.  In City of Los Angeles v. Patel, the 9th Circuit Court of Appeals struck down a City ordinance that required hotels to allow police to inspect hotel guest records, including the guest's name, address, make, model and license plate number of the guest's vehicle, and the guest's room number. The court of appeals held that the ordinance violated the Fourth Amendment as an unlawful warrantless search because it authorized inspections of these records without giving hotel owners any ability to challenge the reasonableness of the inspection in court before penalties would be imposed under the ordinance.

The Supreme Court will consider the following two issues in the case: 

(1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and 

(2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

You can read more on Scotusblog.com.

Post Authored by Julie Tappendorf

Thursday, October 16, 2014

ILA Conference Materials

This week, Ancel Glink attended the Illinois Library Association's annual conference in Springfield. Our attorneys presented at three of the conference sessions on topics of interest to library officials and employees.  For those of you who could not attend the conference or our sessions (or if you are interested in FOIA, meeting procedures, and workers' compensation issues), we have provided links to the handout materials below:

Library Board Wars and Power Plays:  How to Resolve Them and How to Avoid Them
Speakers:  Julie Tappendorf & Britt Isaly
Handout Materials:

Workers' Compensation Claims by Library Employees and Common Defenses
Speaker:  Britt Isaly
Handout Materials:
Keep Calm and Carry On - Responding to FOIA Requests
Speakers:   Julie Tappendorf (Ancel Glink), Peggy Danhof, George H. Scheetz, Holly Sorenson, Lynn Elam, and Tim Jarzemsky
Handout Materials:

It was a pleasure visiting with all of our library friends this week, and we hope you enjoyed the conference!

Post Authored by Julie Tappendorf

Wednesday, October 15, 2014

Prisoner Not Entitled to Copies under FOIA

A little known FOIA provision exempts from disclosure "records requested by persons committed to the Department of Corrections if those materials are available in the library of the correctional facility where the inmate is confined."  5 ILCS 140/7(1)(e-5).  That exemption is the subject of PAC opinion 13 for 2014.   
In PAC Op. 14-013, the PAC determined that IDOC did not violate FOIA by refusing to make copies of Administrative Directives for a prisoner where those documents were available for inspection in the prison library.  The PAC relied on legislative history demonstrating that the purpose of this exemption was to preclude inmates from using FOIA to obtain records that were already available to them in the library.
So, no public body violation in this opinion, although the opinion is pretty limited in its application, since the cited exemption only applies to the Department of Corrections.  Still, it's a nice change from "public body violates..."
Post Authored by Julie Tappendorf

Tuesday, October 14, 2014

Clerk Properly Refused to Certify Referendum

Petitioners filed petitions for a referendum to prohibit the sale of liquor in a Chicago precinct.  The City Clerk refused to certify the petition, however.  The petitioners filed a lawsuit asking the court to order the Clerk to certify the petitions, arguing that the petitions were in apparent conformity with state law.  The trial court and appellate courts denied the petitioners any relief, finding that the petitions were not in apparent conformity due to a number of deficiencies.  Mabwa v. Mendoza, 2014 IL App (1st) 142771 (Oct. 7, 2014).

The Illinois Liquor Control Act grants citizens the right to restrict or prohibit the sale of liquor in their own precinct, but only after a referendum vote on the question.  To initiate that question, a petition must be filed in proper form with the city clerk.  Under Illinois election law, a city clerk can refuse to certify a referendum (placing the question on the ballot) if a petition do not 'on its face" comply with state law.  The Liquor Act requires the petition to be in a particular form under that statue and to comply with the Election Code requirements.  These requirements include a circulator's statement that the signatures were not signed more than 4 months before the filing of the petition, among many other requirements.  In this case, the clerk determined that some of the signatures were undated, certain petitions did not include the required circulator statement, and at least one voter appeared to sign the petition outside of the four month filing period.  As a result, the clerk had no obligation to certify the deficient referendum question.

Post Authored by Julie Tappendorf

Monday, October 13, 2014

Wisconsin's Voter ID Law is Constitutional

You might remember that the U.S. Supreme Court upheld Indiana's voter ID law in a 2008 case called Crawford v. Marion County Election Board.  The Supreme Court determined that the Indiana law requiring voters to present photo ID at the polls was consistent with the constitution.  Earlier this year, a federal court in Wisconsin struck down a similar law in Wisconsin.  That case made its way to the Seventh Circuit Court of Appeals earlier this week.  That court reversed the district court's decision based on the U.S. Supreme Court's ruling in Crawford.  Frank v. Walker (7th Cir. Oct. 6, 2014).

The court of appeals discussed the Supreme Court's justifications for upholding a voter ID law.  First, the Court had noted that a commission chaired by former President Carter had recommended the use of photo ID to prevent voter fraud.  Second, the Help America Vote Act of 2002 requires states to verify a person's eligibility to vote through photo ID and other state-assigned identifiers.  Third, many people register to vote when they get drivers' licenses, so the two are linked from the outset.  Finally, the Supreme Court had concluded that preventing voter fraud and preserving the integrity of elections justified a photo ID requirement, and that the inconvenience of obtaining a photo ID was not a "substantial burden" on the right to vote.

Based on the Supreme Court's stated justifications in Crawford, the court of appeals did not find Wisconsin's voter ID law to be any more burdensome on voters than Indiana's law was.  The court also recognized that 91% of registered voters have qualifying photo ID, and a 9% differential did not effect disenfranchisement.  The court concluded, therefore, that Wisconsin's voter ID law did not violate the constitution.

UPDATE:  A few days after this case was decided, Judge Posner requested that the court of appeals take a vote to hear the appeal en banc.  That vote failed.  Judge Posner's dissenting opinion (the side that voted in favor of having the case heard by the whole court) is an interesting read - you can read it here.

Post Authored by Julie Tappendorf

Friday, October 10, 2014

Vicious Dog Determination Upheld by Court

Under the Illinois Animal Control Act, a court has discretion to determine that a dog is a "vicious dog" within the meaning of the statute and order that the dog be euthanized.  That is what happened in People v. Helm, 2014 IL App (5th )130325 (Oct. 6, 2014).

The defendant's pit bull and husky were off-leash when they encountered Kenneth Whittaker and his two dogs.  The husky charged one of Whittaker's dogs and began attacking it.  When Whittaker attempted to stop the husky's attack, the pit bull grabbed his arm in his jaws, clamped down, and bit Whittaker.  The defendant showed up and called his dogs off, but not before Whittaker was wounded.  The state brought an action against the defendant under the Animal Control Act to have the pit bull declared a vicious dog.  As part of its case, the state brought evidence that the pit bull had bitten two other individuals and had been declared a "dangerous dog" under the statute previously.  Based on those previous determinations, the defendant was supposed to keep the pit bull confined or muzzled when in public. 

The defendant countered that the state had no authority to declare the pit bull a vicious dog because the dog was protecting a member of the household (the husky), an exemption under the Act.  The trial court disagreed, finding that exemption to be discretionary, not mandatory. As a result, the court declared the dog a "vicious dog" under the Act and ordered him humanely euthanized. 

On appeal, the appellate court agreed with the trial court that the "protection of others" exemption in the Act was not mandatory, and while a court might find a dog's conduct in a particular situation justified, it was not required to do so.  In this case, the appellate court determined that the previous biting incidents, the two previous declarations finding the dog to be a "dangerous dog" under the Act, and the defendant's continued failure to keep the dog restrained to protect the public justified the trial court's determination that the dog was a vicious dog. 

So, how does this case affect municipalities?  Any community that has adopted its own local animal control ordinances under the authority of the Animal Control Act might be interested in how the appellate court interpreted the Act's "protection of others" exemption to be discretionary and not mandatory.  The court also gave the state a lot of leeway in enforcing the vicious dog provisions of the Act where the evidence at trial showed that there were multiple incidents and previous designations under the Act's dangerous dog designations.  

Post Authored by Julie Tappendorf

Thursday, October 9, 2014

Important to Double-Check Objector Petition Filing Deadine

The 2015 Election and Campaign Finance Calendar published by the State Board of Elections says that its deadline for the filing of objections to candidate nomination papers for the upcoming April 7, 2015, election is December 30, 2014.  However, that date may not apply to all municipalities, depending on their year-end holiday schedule.  In fact, the objection-filing deadline in some municipalities may be as late as January 6, 2015.  It is, therefore, important for municipalities to calculate their objection-filing period for the April election based on the holiday schedule of their own city or village.

The Election Code states that objections to candidate nomination papers may be filed within five “business days” following the last day of the candidate petition-filing period. 10 ILCS 5/10-8. For the April 2015 election, the candidate petition-filing period ends on December 22, 2014, in all jurisdictions. However, different municipalities have different holiday schedules, and that may affect the way the “business days” are counted for the five-day objection-filing period.

For purposes of calculating election-related dates and deadlines, the Election Code defines the term “business day” as “any day in which the office of an election authority, local election official or the State Board of Elections is open to the public for a minimum of 7 hours.” 10 ILCS 5/1-3(22). So, for example, if a municipal office will be closing early on Christmas Eve (Dec. 24) or New Year’s Eve (Dec. 31), in addition to being closed all day for Christmas and New Year’s Day, the objection-filing deadline will be different than the State Board’s schedule.

Below is a table showing the most common objection-filing deadlines for the April 2015 election. “Open” means open for at least 7 hours, and “Closed” means closed all day, or open for less than 7 hours (including “half days”):

Dec. 23
Dec. 24
Dec. 25
Dec. 26
Dec. 29
Dec. 30
Dec. 31
Objection-filing DEADLINE
Dec. 30
Dec. 31
Jan. 2
Jan. 6

Because the dates can vary significantly from municipality to municipality, you should check with your local attorney to confirm the objection filing deadline in your community.

Post Authored by Adam Lasker, Ancel Glink

Wednesday, October 8, 2014

Webcast on Controversial Land Uses

Don't miss the upcoming webinar "Sex, Guns & Drugs: Planning for Controversial Land Uses" hosted by the Planning and Law Division of the American Planning Association and featuring Ancel Glink attorneys Greg Jones and Dan Bolin. 

More information about the webcast is below and you can click on the link to register for the webinar:

Webcast—Sex, Guns & Drugs:  Planning for Controversial Land Uses

October 22, 2014
1:00 – 2:30 PM CST

CM 1.50
L 1.50

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Sex, Guns & Drugs:  Planning for Controversial Land Uses on Wednesday, October 22, 2014 from 1:00 to 2:30 p.m. CST. Registration is $20 for PLD members and $40 for non members, and $45 for webinar registration plus a Planning and Law Division membership.  Presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink, this webcast will explore if and where controversial businesses belong in communities.
Learn more and register


Subdivision's Petition to Change School Districts Should Have Been Granted

Homeowners filed a petition to disconnect their subdivision from one school district and annex it to another school district under a provision of the Illinois School Code that authorizes this procedure. The petition had been signed by at least 2/3 of the voters in the subdivision.  The Lake County regional board of school trustees conducted a public hearing, and the petitioners presented evidence that the change in schools would provide an educational advantage to the students, would increase home values in the subdivision, and would not be a financial detriment to the districts. At the conclusion of the hearing, the board denied the petition.  The board based its ruling on a number of factors, including that the change would not decrease travel time for students and that the subdivision did not have a "community of interest" with the new schools.  

The subdivision appealed to the trial court, which reversed the board's decision, and disagreed with the board's findings. Specifically, the trial court determined that the new schools would be closer and would have a safer route.  The trial court also found that the board erred in failing to consider the petitioners' preferences. 

On appeal, the appellate court affirmed the trial court, agreeing that the regional board erred in denying the subdivision's petition to change school districts.  Merchant v. Regional Board of School Trustees of Lake County, 2014 IL App (2d) 131277 (Sept. 30, 2014).  The appellate court went into great detail about the detachment process, and the standards that petitioners must establish under the School Code for detachment.   After weighing all of the factors, the appellate court determined that the petitioners established sufficient evidence in favor of their application to change school districts, and the regional board erred in denying that petition.

Post Authored by Julie Tappendorf

Tuesday, October 7, 2014

New Firefighter Testing Law

In July of this year, Governor Quinn signed into law amendments to the Illinois Municipal Code and the Fire Protection District Act that require written (“mental aptitude”) examinations given to applicants for firefighter positions to be “supported by appropriate validation evidence and [to] comply with all applicable state and federal laws”.  Specifically, the law provides, “[m]inimum scores should be set by the [appointing authority, either the Board of Fire and Police Commissioners, the Board of Fire Commissioners, the Civil Service Commission or the Illinois Joint Labor and Management Committee] so as to demonstrate a candidate’s ability to perform the essential functions of the job.  The minimum score set by the [appointing authority] shall be supported by appropriate validation evidence and shall comply with all applicable state and federal laws.”

This month, fire chiefs around the state have received letters from the Attorney General’s office notifying them of the changes in the law and explaining why the law was changed.  Under previous law, the letter says, the appointing authority was required to set passing scores for written examinations at the median score of applicants who took the test.  The letter says, however, that the U.S. Department of Justice recently investigated the impact of this method of setting written examination cut-off scores and concluded that it had a disparate impact on females and minorities without measuring whether an excluded applicant had the requisite qualifications to perform the job of firefighter.  Accordingly, the law in Illinois has now been changed to require the appointing authority to set cut-off scores for written firefighter examinations based on what the statute calls “appropriate validation evidence”. 

“Validation evidence” (or, more accurately, evidence of validity) derives from the Uniform Guidelines on Employee Selection Procedures, published jointly by the U.S. government’s Equal Employment Opportunity Commission, Civil Service Commission, Department of Labor and Department of Justice.  The purpose of validity evidence is to show that the test measures what it is supposed to measure.  To accomplish this purpose, three types of validity evidence are recognized by the Uniform Guidelines – criterion-related validity, content validity, and construct validity.  The new law, presumably, requires the appointing authority to use one of these types of validity evidence to support the setting of a cut-off score at a point giving rise to a reasonable presumption that those who achieve at least a minimum score on the test meet the minimum requirements for the position that are measured by the test, while those who do not achieve at least the minimum score do not meet those requirements.

Under the law, a test that has a disparate impact on females and minorities may be held to be unlawful unless that test can be shown to be job-related; that is, it must be shown to measure knowledges, skills and abilities required by the job.  A test that is “validated” is one that has been shown by evidence of validity to be job-related and therefore not discriminatory even if the test proportionately disqualifies females and/or minorities. 

The new amendments do not require that the appointing authority abandon existing eligibility lists.  But written firefighter tests given after July 16, 2014 must meet the requirements of the new amendments; specifically, the Attorney General’s office says, “[e]valuation of written examination performance based on the median score of test takers should no longer be used.”
While the law does not necessarily require it, it is anticipated that a number of jurisdictions will retain the services of professionals, such as industrial psychologists, experts in psychometrics, and labor economists, to develop the methods and procedures necessary to obtain evidence of validity.  Municipalities with fire departments and fire protection districts are urged to seek advice of counsel as to the extent and timing of their obligations to comply with the new amendments and the methods best utilized in their particular circumstances to achieve compliance.  

Post Originally Authored by Darcy Proctor for The Workplace Report

Monday, October 6, 2014

City in Violation of FOIA for Not Responding

I wasn't sure whether it was worth reporting on the 11th PAC opinion for 2014 since it really doesn't provide public bodies with any new guidance or advice from that office.  But, here's the short and sweet on PAC Op. 14-011 (Sept. 29, 2014).

A Chicago Tribune reporter filed a number of FOIA requests with the City of Harvey over a two week period seeking copies of contracts between the City and various companies and individuals.  A month later, after repeated inquiries but still no response, the reporter filed four requests for review with the PAC claiming that the City failed to produce any records or respond to the FOIA requests. The PAC contacted the City, but the City still failed to respond to the FOIA request.  

Not surprisingly, the PAC found the City in violation of FOIA for failing to respond to any of the reporter's FOIA requests, and ordered the City to comply with the requests and provide the requested documents.  

Post Authored by Julie Tappendorf

Friday, October 3, 2014

Registration Rule for Public Comment Violated OMA

In its 12th opinion of 2014, the PAC found a county board in violation of the OMA for refusing to allow a person to speak during public comment because he did not register 5 days in advance of the meeting as required by the county board's rules.  PAC Op. 14-012 (Sept. 30, 2014).

The McLean County Board had established various rules for public comment at county board meetings, including a rule requiring members of the public and county employees to sign up at least 5 days in advance of a board meeting if they want to speak at the meeting.  The complainant was denied the right to speak for failing to comply with the rules (he signed up 4 days in advance) and filed a request for review with the PAC.  

The PAC analyzed the complaint under Section 2.06(g) of the OMA that provides an opportunity for members of the public to address public officials.  Again, the PAC interpreted that rule to require a public comment period at all open meetings, although the OMA does not expressly provide for that right.  Although the PAC acknowledged that the OMA allows a public body to adopt rules governing public comment such as those adopted by the county board, it found that the advance registration rule to be unreasonable because it "does not take into account the fact that the public has a statutory right to address the Board."  The PAC determined that the advance sign-up requirement "imposed substantial obstacles for those who wish to speak at the Board's meetings," particularly because the OMA does not require a public body to post agendas until 48 hours before a meeting.  

The county board's refusal to allow the individual to speak at the meeting even though he filed a request 4 days in advance of the meeting probably played into the PAC's opinion.  However, the board rules did contain a separate provision authorizing a board member to request that a person be allowed to speak at the meeting - in essence, a waiver of the advance registration rule.  The PAC did not issue any ruling on that rule, however, and instead struck down the 5 day registration rule as unreasonable.  

We have written a lot about the public comment issue lately, summarizing the PAC's advisory opinions here and reporting on the two binding opinions (the other one involving addresses). The problem is that the OMA provides no guidance, so the PAC opinions are all public bodies have to assist them in drafting rules for public comment at meetings - which the PAC says is required for all public bodies.  Based on the two binding opinions, we know the PAC would find rules requiring an individual to provide his or her address or register five days in advance to be unreasonable public comment rules.  We know that the PAC believes that section 2.06(g) requires public comment at all open meetings of all public bodies.  We know that the PAC interprets that section to require that all public bodies adopt rules for public comment.  We also know that the PAC is ok with reasonable time limits (although we don't have much guidance on what that means) and that public bodies can enforce rules of decorum for disruptive public comment.  Beyond that, we may need to wait for more guidance from the PAC - or, legislative clarity.  

Post Authored by Julie Tappendorf

Thursday, October 2, 2014

Lessons Learned on At-Will Employment

The Illinois Appellate court recently gave employers a refresher course in the pros and cons of maintaining at-will status of employees. In this case, when an assistant principal's employment was not renewed at the end of the school term, he sued for retaliatory discharge.  Although he was awarded a $1 million jury verdict, the appellate court reversed the trial court finding that a retaliatory discharge claim can only be brought by at-will employees. The appellate court determined that because the employee was retained for a specific period of time, there was an employment "agreement" between the employee and the school district. Taylor v. Board of Education of the City of Chicago, 2014 Ill. App. (1st) 123744.

While the outcome was favorable to the district under these facts, the finding that an employment "agreement" existed because an employee was hired for a particular term could be problematic in other circumstances.

Check out the full post on The Workplace Report.

Wednesday, October 1, 2014

Gaming Board Did Not Violate Due Process in Denying License

In a recent case, the Illinois Gaming Board Board denied a gaming license to C. Capp's LLC. The Board relied on its rules that provide that it may not grant a license unless the Board is satisfied that the applicants is "of good character, honesty and integrity" and whose background "is not injurious to the public health, safety, morals, good order and general welfare" or "does not discredit or tend to discredit the Illinois gaming industry."  C.Capp's LLC v. Jaffe, 2014 IL app (1st) 132696 (Sept. 23, 2014).  

The applicant sued the Board, claiming that the denial of the license without a hearing violated its due process rights.  The court ruled in favor of the Board.  First, the court found that there is no protectable property interest in a video gaming terminal operator's license.  Second, there is no hearing requirement under the video Gaming Act. Third, the Board has wide discretion to issue or deny a terminal operator's license.  In this case, one of the principals in the LLC was associated with a convicted felon and worked with a company that was the subject of federal and state investigations involving gambling.  The court concluded that the decision to deny Capps the license without a hearing was not clearly erroneous.

Post Authored by Julie Tappendorf