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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

Wednesday, December 31, 2014

10 Most Popular Posts of 2014

Tuesday, December 30, 2014

Court Finds Park Ordinance Constitutional as Applied to "Occupy Chicago" Protesters

The Chicago Park District Code of Ordinances prohibits people from being in the parks from 11 pm to 6 am.  Protesters affiliated with the Occupy Chicago movement were arrested when they refused to vacate Grant Park after being advised of the ordinance.  The circuit court dismissed the charges, finding that the ordinance was unconstitutional, both facially and as it was applied to the protesters. The City appealed, and the appellate court reversed, finding the ordinance constitutional.  Chicago v. Alexander, 2014 IL App 122858

The appellate court first determined that the park district had authority to keep parks safe and maintained.  Second, the court held that Chicago's nighttime hour limitations were reasonable, as content-neutral regulations.  Third, the court rejected the protesters' arguments that the ordinance was overbroad, finding that it only prohibited use of the parks for seven hours each day, leaving ample time for expressive content.  Finally, the court held that banning the protesters from camping overnight in City parks was not more restrictive than necessary and did not violate the protesters' speech rights as they had ample alternatives to express their message, including other sites where the protesters were permitted during the nighttime.  In short, the appellate court rejected the protesters' challenges to the park district ordinance.

Post Authored by Julie Tappendorf

Monday, December 29, 2014

City and Mayor Sanctioned for Deleting Emails During Litigation

From our friends at the Coates' Canons blog:  

The City of Prescott, Arizona, and its mayor, learned a harsh lesson about the failure to preserve emails and other electronic records during (and in anticipation of) litigation.  It is a good lesson for local governments, officials and employees about the importance of preserving electronic data, particularly when litigation is threatened or ongoing. 

In Riley v. City of Prescott, 2014 WL 641632 (D. Arz. Feb. 19, 2014), the City of Prescott contracted with a local humane society to operate its animal shelter. Kay Anne Riley (Riley) worked as a marketing manager for the humane society. In October 2010, Riley formed a group, Prescott Citizens Against Bullies, whose purported purpose was to raise community awareness of an alleged injustice against a former city employee. Among other things, Riley issued a press release in late October announcing a planned protest against several city officials, including the mayor.  The mayor and other city officials responded to the allegations by sending emails expressing their displeasure with Riley and her planned protest to Riley's employer, the humane society.  Shortly thereafter, the humane society terminated Riley.  

Riley then filed a civil rights lawsuit against the city and the mayor, claiming that she had been unlawfully terminated for exercising her First Amendment rights.  During the discovery phase of the lawsuit, Riley learned that 24 emails sent and/or received by the mayor though his personal Gmail account had not been produced and, it was later learned, were deleted even though there was an e-discovery order in place requiring preservation.  Riley filed a motion for discovery sanctions against the city and mayor for failure to preserve and produce responsive emails.

The court found no reasonable excuse for the mayor’s failure to produce the twenty-four emails that were discovered by Google, and that the mayor acted willfully and in bad faith in deleting those emails.  The court directed that the jurors be given instructions allowing them to infer that the lost emails were damaging to the defendant, and awarded $35,000 in attorneys’ fees and costs to Riley as a sanction for the spoliated evidence.

You can read more about this case on Coates' Canons:  Mayor Learns a Harsh E-Discovery Lesson

Friday, December 26, 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, December 23, 2014

Illinois Eavesdropping Bill Goes to Governor

SB 1342 recently passed both houses of the Illinois General Assembly and is now awaiting action by the Governor.  That bill would amend the Eavesdropping Article of the Illinois Criminal Code to address the Seventh Circuit Court of Appeals' 2012 decision in Alvarez v. ACLUThat case involved a lawsuit filed by the ACLU against Cook County to block prosecution of ACLU staff from recording recorded police officers in the performance of their public duties.  The Seventh Circuit ruled in favor of the ACLU, finding the law (which requires two-party consent for recordings )unconstitutional.  Specifically, the court ruled that the law "restricts far more speech than necessary to protect legitimate privacy interests."  The U.S. Supreme Court refused to hear the county's appeal, which effectively blocked enforcement of the Illinois eavesdropping law. 

SB 1342 would still require two-party consent for recordings, but only if those recordings are of a “private conversation,” and the person recording the communication does so in a “surreptitious manner.”   The bill defines “private conversation” to mean a conversation between people where the communication between the parties is one where one or more of the parties intended the communication to be of a “private nature under circumstances reasonably justifying that expectation.” “Surreptitious” means that the recording was obtained or made “by stealth or deception, or executed through secrecy or concealment.”

So, what does that mean in practical terms?  It is still a crime for someone to secretly audio or video record interactions in which one of the parties has a reasonable expectation of privacy.  There are still open questions as to what a “reasonable expectation of privacy” means, and how it will be defined and interpreted.  But, based on the new definition of “private conversation,” the law might allow someone to record law enforcement officers on duty since it could be difficult for on-duty police to argue they have a reasonable expectation of privacy in their conversations in public places.  If the law is ultimately signed by the Governor, it seems likely that the courts will be called upon to interpret these new definitions, particularly to provide guidance on what a "reasonable expectation of privacy" is.

Post Authored by Julie Tappendorf

Monday, December 22, 2014

Ill. Supreme Court Resolves Dispute on Electoral Board Judicial Review

A candidate or objector can file an appeal of an adverse electoral board's decision with the circuit court, subject to certain statutory procedural requirements. 5 ILCS 5/10-10.1. One of those requirements is that the  party seeking judicial review must serve a copy of the petition on the electoral board and other parties.  There is currently a split in the appellate courts as to what constitutes service "on the electoral board."  The First and Fourth Districts have ruled that service on individual members of the electoral board is not sufficient to confer jurisdiction on the court, holding that the individual electoral board members and the board as an entity must be served.  The Third and Fifth Districts, on the other hand, have taken a contrary position and held that service on individual board members is sufficient to comply with the Election Code.  

This split was the subject of a recent Illinois Supreme Court decision in Bettis v. Marsaglia, 2014 IL 117050.  In that case, the Supreme Court heard the appeal of the Fourth District's decision that the statute requires service on the individual members and the board itself.  The question before the court is if a petitioner serves every member on the electoral board, is duplicate service on the board as ane entity also required?  The Supreme Court said no, reversing the Fourth District and adopting the Third and Fifth District's position that service on the individual members is sufficient to provide jurisdiction to the courts to hear the appeal of an electoral board decision.

The Illinois Supreme Court first determined that the statutory language is unclear, leading to the split decisions in the various districts.  Because of the ambiguous language, the Court noted that both interpretations were reasonable.  However, the Court held that the Third and Fifth District's interpretation was the better one because service on the individual electoral board members accomplished the intent of the statute - that all necessary parties receive notice.  Requiring the additional step of serving the electoral board as an entity would be redundant, in the Court's view.  

The Court also noted that access to a place on the ballot is a substantial right not lightly to be denied. Adopting an interpretation that simplifies judicial review would promote ballot access.

The Court also rejected the argument that the petition for judicial review must name the electoral board and its members, finding that the statute does not require this.  

Justice Theis dissented from the opinion, and would agree with the First and Fourth Districts that the petition for judicial review must be served on the electoral board as an entity.  

Post Authored by Julie Tappendorf, Ancel Glink

Friday, December 19, 2014

Court Rejects Sierra Club's Challenge to EPA's Finding that 3 Midwest Areas Meet Ozone Standards

The Sierra Club filed a lawsuit against the U.S. EPA challenging its decisions to redesignate three Midwest areas (including Milwaukee-Racine, Chicago, and East St. Louis) as meeting the ozone standards of the Clean Air Act.  The Act requires the EPA to confirm that (1) the ozone in an area has dropped to a certain level and (2) that the improvement in air quality resulted from permanent and enforceable reductions in emissions.  

In 2004, all three areas were designed by the EPA as not meeting the ozone standards, and classified the areas as "moderate nonattainment" under the Act.   In 2012, however, the EPA redesignated the areas to "attainment."The Sierra Club argues that the EPA acted arbitrarily and capriciously in making its redesignation decisions in these three areas.   The Seventh Circuit disagreed, and denied the Sierra Club's appeal.  Sierra Club v. USEPA (7th Cir., Dec. 16, 2014)  The court noted that the arbitrary and capricious standard gives great deference to the EPA's administrative decision, and determined that the Sierra Club failed to overcome that high standard in its challenge to the EPA's redesignation.

Post Authored by Julie Tappendorf

Thursday, December 18, 2014

Village's $1000 Video-Gaming License Fee Upheld

Illinois allows establishments with liquor licenses to install video-gaming machines subject to state regulations and a state license. The Video Gaming Act expressly authorizes non home-rule municipalities to charge a fee for each video gaming terminal not to exceed $25.  There is nothing else in the Act about local registration or licensing, although many municipalities have enacted regulations to require a license or registration and impose a fee, including the Village of Elmwood Park.  

In 2013, the Village adopted an ordinance imposing a $1,000 license fee per video gaming terminal. The Village relied on its home rule authority to impose the fee.  A gaming company applied for and obtained state licenses to install video gaming terminals in a restaurant in Elmood Park.  However, the company did not pay the Village's license fee, nor did it obtain the required local licenses for the gaming machines.  Instead, the company requested that the Village waive the fee.  When that request was denied, the company sued the Village, claiming that the fee was unconstitutional and the Village was preempted from requiring a license or license fee.

Recently, a trial court issued an opinion upholding the Village's license fee.  First, the court rejected the company's argument that the Video Gaming Act preempted a home rule municipality's video gaming regulations, finding that Elmwood Park's regulations and license fee did not conflict with the state regulatory scheme. The court also determined that the license fee was not an unconstitutional tax, because the fee was reasonably related to the costs of regulating and enforcing the video gaming regulations.  As a result, the court dismissed the company's challenge to the Village's video gaming licensing fee and ordinance.

Post Authored by Julie Tappendorf

Wednesday, December 17, 2014

Supreme Court Upholds Traffic Stop Based on Reasonable Mistake of Law

The U.S. Supreme Court decided a case regarding probable cause for traffic stops. In Heien v. North Carolina, the court concluded that an officer's reasonable mistake of law can still support probable cause to make a traffic stop.  

In the case, a police officer had stopped a vehicle with a broken brake light based on the officer's belief that a North Carolina law that required vehicles to maintain rear lights in factory-installed condition meant that both rear brake lights had to be in working order. While issuing a warning ticket for the broken light, the officer became suspicious and requested consent to search the vehicle, which was granted.  The officer found cocaine in the car and arrested the driver for attempted drug trafficking. 

The driver filed a motion to suppress the evidence, arguing that the officer had no probable cause to make the initial traffic stop because North Carolina law did not require both lights to be in working order.  The trial court agreed that the law only required one brake light to be in working order, but allowed the evidence in based on the officer's reasonable, although mistaken, belief in the law.  The appeals court reversed, finding that the officer's mistake could not justify probable cause, but the state supreme court reversed again.  The case was ultimately appealed to the U.S. Supreme Court.  

On appeal, the Supreme Court concluded that the officer's mistake in believing the car violated the law was 'reasonable' and satisfied the requirements of probable cause for the traffic stop.  The Supreme Court noted that the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials “fair leeway for enforcing the law.” As a result, the officer had probable cause to stop the vehicle based on a reasonable "mistake in law."  Therefore, the evidence was properly admitted.

Post Authored by Julie Tappendorf

Tuesday, December 16, 2014

Federal Spending Bill Includes Medical Marijuana Provision

One of the problems with state medical marijuana laws (including the recently enacted Illinois Compassionate Use of Medical Cannabis Pilot Program Act) is that federal law still prohibits the cultivation and sale of marijuana, and there are no medical marijuana or research exceptions.  

Recently, however, the House and Senate Appropriations Committees included a provision to address this issue in the omnibus spending bill sent to the President last week.  The Hinchey-Rohrabacher Amendment would block the use of Department of Justice funds to “prevent [medical marijuana states] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” One of the immediate effects of this federal spending restriction may be to enable medical marijuana transactions to take place by means of payment other than cash. 

Post Authored by Julie Tappendorf

Monday, December 15, 2014

Condemnation of Sewer Easement was Proper

A water reclamation district adopted an ordinance to install a sanitary sewer extension to a residential development. The proposed sewer main would require the installation of a "trunk line" that would run beneath property known as the Sanctuary Condominiums of Rock Cut.  The district attempted to negotiate purchase of an easement for the improvements (at one point offering double the easement's appraised value of $1350), but when the negotiations failed, the district filed a complaint for condemnation with the circuit court.  The circuit court approved the condemnation at the appraised value of $1,350 and the condominium group appealed.  The appellate court affirmed in Rock River Water Reclamation District v. Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 130813.

The appellate court rejected the condominium's arguments that the condemnation action was defective, and the compensation amount insufficient.  Specifically, the court held that the district had authority to condemn, the sewer project was necessary, the district negotiated in good faith, and the compensation award of appraised value was appropriate. The court rejected the condominium group's argument that the district was required to compensate the owner for costs to re-landscape the property after the project was completed. 

Post Authored by Julie Tappendorf

Friday, December 12, 2014

Update on Bleacher Zoning Dispute

We've previously posted about the suburban school district that installed bleachers at its high school without going through the city's zoning process.  When sued by the city, the school district argued that it was exempt from zoning.  The circuit and appellate courts disagreed, holding that the school district must comply with local zoning. Gurba v. Community HS Dist. 155 

The school district has filed an appeal with the Illinois supreme court, but it could take months before the court decides whether it will hear the appeal.  Recently, the school district submitted an application to the city for zoning relief for the bleachers, which application is making its way through the city's zoning process.  That process will include staff review and a future public hearing before the city's planning and zoning commission before ultimately being voted on by the city council.  

You can read the previous posts about this case here and here.

Post Authored by Julie Tappendorf

Thursday, December 11, 2014

McCormick Place Convention Leases Not Exempt under FOIA

The PAC recently issued its 16th opinion for 2015.  PAC Op. 14-016.  There, a reporter for the Chicago Sun-Times had filed a FOIA request with the Metropolitan Pier and Exposition Authority (MPET) for copies of lease agreements for all conventions and trade shows at McCormick Place since January of 2011.  MPET responded by asking the reporter to narrow his request because it would be unduly burdensome to provide 243 license agreements.  MPET also asserted that certain information relating to financial and square footage data was exempt as confidential and proprietary under section 7(1)(g) of FOIA because release would put McCormick Place at a disadvantage in competing for conventions and trade shows.  MPET further argued that it would undermine the show organizer's ability to freely negotiate pricing with other centers.

The reporter declined to narrow his request, and instead filed a complaint with the PAC.  The PAC rejected MPET's reliance on the "trade secret and commercial or financial information" exemption, finding that this exemption only protects information obtained from a person or business that would cause competitive harm to that business, not the public body.  Further, the PAC argued that the Illinois constitution requires all records relating to the receipt and use of public funds to be open to the public.  

The PAC also rejected MPET's argument on appeal that the financial terms of the lease are exempt as valuable formula "when disclosure could reasonably be expected to produce private gain or public loss" under section 7(1)(i).  The PAC asserted that this exemption does not apply to "basic lease agreement information" such as rental amounts or leased square footage.  

Finally, the PAC rejected MPET's argument that compliance would be unduly burdensome. Although the 235 lease agreements encompass 3,500 pages, because the PAC rejected all of MPET's cited exemptions, there would be no need to review and redact any information.

Post Authored by Julie Tappendorf

Wednesday, December 10, 2014

Public Body Can Now Direct FOIA Requesters to Website for Records

Although we reported last week on the passage of HB 3796 (the FOIA amendment), the "online records" provision of this new law may have gotten lost in all of the opposition to the "voluminous request" provision of P.A. 98-1129.  

A new section 8.5 to FOIA now states that a public body that posts records on its website need not provide copies of those online records in response to a FOIA request.  Instead, the public body can direct the requester to the website where the record can be “reasonably accessed.” 

There is an exception to this new rule.  If the requester is unable to reasonably access the record online after being directed to the website, then the requester can resubmit the request to the public body with a statement as to his or her inability to access the record.  In that case, the public body is required to make the record available for inspection or copying as otherwise required by FOIA.

Although there was some opposition to this provision from pro-transparency groups, this law should actually promote transparency because public bodies are likely to post more of their records online.

The law became effective on December 3, 2014, when the Senate voted to override the Governor’s veto.  

New section 8.5 is reprinted below:  
Sec. 8.5. Records maintained online. 
   (a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed. 
    (b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.
Post Authored by Julie Tappendorf

Tuesday, December 9, 2014

Veto of Commercial Ridesharing "Uber" Bill Stands

On November 21, 2014, the Illinois House failed to override Governor Quinn’s veto of HB 4075That bill was intended to ensure that ridesharing companies such as Uber and Lyft offer the same consumer protections as is required for the taxi industry (i.e., commercial liability insurance, criminal background checks, special licenses, special registration plates, vehicle inspections, etc.). The bill also included language that would preempt home rule powers and circumvent local regulatory authority.  Home rule preemption prompted the Governor’s veto and the Illinois Municipal League's opposition to the bill.

Post Authored by Julie Tappendorf

Monday, December 8, 2014

Court Upholds Arbitration Ruling in Chicago Parking Agreement Case

The recent case of The City of Chicago v. Chicago Loop Parking LLC warns government about the danger of giving up the right to go to court to settle disputes.  The City entered into an agreement with Chicago Loop Parking LLC, (“CLP”), to lease and grant a concession to operate four underground parking garages in Grant and Millennium Parks for a 99-year period.  CLP paid the City $563,000,000.  As a result of a series of mistakes and unsuccessful strategy choices made by the City, the contract turned out to be a very bad deal.  One of the terms of the contract prevented the City from litigating in court and limited dispute resolution to a binding arbitration process.  A dispute arose and a 3-member arbitration panel found that the City owed CLP nearly $58,000,000 in damages.  Five months after the arbitration award was entered, the City filed a lawsuit in the circuit court seeking to stay the judgment and to modify it. 

The reason for the judgment against the City was that, contrary to a promise made in the Agreement with CLP, the City allowed the owners of a new building called “Aqua” the right to include a 1,273-space parking garage in an area where it had agreed to give exclusive parking lot privileges to CLP.  After the Court made the award, the City and the owner of the newly-granted garage entered into an agreement to somewhat limit those who could park in the new garage.

At the trial court, the City attempted to overturn the perfectly rational decision of the arbitrators based upon a whole series of arguments.  Both the trial and appellate courts were confronted with the very established rules and concepts which attempt to make arbitration decisions, generally between commercial disputants, almost impossible to overturn.  Although there are cases where arbitration awards are overturned or modified based upon clear errors or mistakes by the arbitrators, in this situation, the errors, mistakes and poor judgment all related to the actions of the City.  There are very limited instances in which an arbitration award can be overturned to “do justice.”  Nonetheless, the arbitration process is adversarial and entities that become involved in contract disputes must be prepared to suffer the financial penalties of agreeing to bad contracts and making matters worse through other mistakes. 

The appellate court concluded that “special rules do not apply to the City simply because its actions have significant consequences for taxpayers.”  The Court also wrote:  “There is nothing ‘fair’ about reversing the outcome of a year’s-long arbitration process selected by the parties because one party does not like the result, even where significant public funds are at stake.”  The City was either not able to or did not raise the argument that a governmental body, which requires large-scale residential and commercial buildings to include public parking could not or did not intend to give a concession holder an absolute monopoly on parking in the area.  Unfortunately, even the modified agreement for the new parking garage did not limit parking to tenants, customers and visitors, but allowed public parkers.  While such an argument might have been made if the original dispute was heard by a court, it would likely be ignored in arbitration.  Governmental bodies must evaluate the lost benefits of turning their disputes over to arbitrators who have a limited scope of analysis and inquiry.   

It is not often that the first few sentences in an appellate court opinion tell us all we need to know.  This opinion begins, as follows:  

This case involves two sophisticated parties that willingly chose arbitration as their preferred method of resolving their disputes, thereby restricting the reach of the courts.  Now, unhappy with the result of that choice – a final and binding arbitration award it wishes to avoid – one of the parties turns to the court for relief.  This court finds, as did the trial court, that it has no authority to overturn the valid arbitration award.
Post Authored by Stewart Diamond, Ancel Glink

Friday, December 5, 2014

Employee's Letter About Treatment of Adjuncts a Matter of Public Concern

The 7th Circuit Court of Appeals recently reviewed First Amendment protections for public employees in Meade v. Moraine Valley Community College (Oct. 30, 2014).  There, a college professor wrote a letter to an outside organization about her employer college.  The letter alleged that the college poorly treated its adjunct professors, which harmed its students. She signed the letter in her capacity as president of the Moraine Valley Adjunct Faculty Organization, a union representing adjunct faculty.  Two days later, she was fired, and the notice of termination expressly stated that the reason was her letter.

She sued the college, alleging that her employer retaliate against her for exercising her right to freedom of speech.  The college defended its actions by arguing that her letter did not address "matters of public concern" and could not, therefore, serve as the basis for a First Amendment retaliation claim.  The district court determined that the letter was not a matter of public concern because Meade would be personally affected by any changes in policy.

On appeal, the 7th Circuit disagreed with the district court and found that Meade's letter did discuss matters of public concern by addressing treatment of all adjuncts (not just Meade), and linking that treatment to student performance at the college.  As a result, the case was remanded to the district court to consider whether (1) the employee's speech was a substantial or motivating factor in her termination and (2) the college can show that it would have taken the same action without the existence of the protected speech. 

To read more about this case, visit The Workplace Report here.

Thursday, December 4, 2014

Voluminous Request FOIA Bill - Both Houses Override Veto

We previously reported on HB 3796 that would provide some relief to public bodies from FOIA requests that fall within the bill's definition of "voluminous request."  The bill provides additional time to respond and authority to charge additional fees to respond to these type of requests.  Another part of the bill (discussed below) states that public bodies do not have to provide public records in response to a FOIA request if those records are on the public body's website. 

The bill had initially passed both houses, but was vetoed by the Governor.  Yesterday, the Senate voted to override the Governor's veto (the House had approved the override last month), which is good news for public bodies.

Here's a reminder of what a "voluminous request" would be under this bill:
"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.
Another provision of this bill that has been less publicized adds a new section 8.5.  That section provides that a public body need not provide records in response to a FOIA request if those records are published on the public body's website.  This should encourage public bodies to place more information and records on their website.  The new section is below:
  Sec. 8.5. Records maintained online. 
   (a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed. 
    (b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.
Post Authored by Julie Tappendorf

Housing Authority's Interpretation of Drug Policy Too Broad

The Housing Authority of Jefferson County had a drug policy that prohibits employees from using or being under the influence of alcohol or any controlled substance "while in the course of employment."  It also conducted random drug testing of its employees.  When an employee was called for a random drug test on December 19, 2008, he informed his supervisor that he thought he would fail the test because he had smoked marijuana on a recent vacation on November 15 and 22, 2008.  He was subsequently terminated for violating the drug policy.  His drug test results came in after his termination, and were negative.

The employee sued, arguing that the drug and alcohol ban only applied while he was performing work duties, and he was improperly denied unemployment benefits.  The trial court and appellate courts both agreed.  Eastham v. Housing Authority of Jefferson County, 2014 IL App (5th) 130209.  

The court addressed two issues.  First, the court had to determine whether the employee's conduct qualified as "misconduct" to justify denial of unemployment benefits.  Second, the court addressed the issue of whether the employer's drug policy was reasonable.

With respect to the first issue, the court rejected the employer's interpretation of the phrase "while in the course of employment" to mean any time that an employee is employed by the Housing Authority as too broad and unreasonable.  Instead, the court interpreted the policy to apply to an employee who has a measurable amount of a prohibited substance in any drug test.  In this case, the employee's drug test was negative, so he did not engage in "misconduct" for purposes of being denied unemployment benefits.  

The court found the Authority's drug policy reasonable, based on its own interpretation of the Housing Authority's drug policy to only prohibit employees from being under the influence of drugs or alcohol while on the job because requirements related to the performance of an employee's duties are reasonable.  However, the Authority's own interpretation of the drug policy (to ban use of illicit substances at any time during an employee's tenure) would not be reasonable, according to the court. 

Although the court found that the employee should not have been disqualified from receiving unemployment benefits, it did not address whether the Authority's discharge of the employee was lawful, stating that an "employee's conduct may be sufficient to justify his discharge without constituting misconduct sufficient to disqualify him from [unemployment] benefits..."

Post Authored by Julie Tappendorf

Wednesday, December 3, 2014

Minimum Manning Bill Goes to Governor

Last month, the Illinois Senate approved HB 5485, the firefighter minimum manning bill.  The bill had been previously passed by the Illinois, and now goes to the Governor for his consideration.  

Under the bill, every municipality with a fire department staffed by unionized firefighters would be mandated to bargain over fire department staffing levels if the union wants to include staffing as a subject of bargaining.  If the union and municipality cannot reach agreement on staffing levels, that issue would go before an arbitrator who would be empowered to render a decision regarding appropriate staffing levels.  

The bill had significant opposition from municipalities and municipal organizations, including the IML.  You can read more about the opponents' efforts here.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 2, 2014

FOIA Bill a Mixed Bag for Public Bodies

House Floor Amendment No. 3 to Senate Bill 2799, introduced on Monday, proposes two amendments to the Illinois Freedom of Information Act.  The first would amend section 7(1)(f) of FOIA to modify the draft records/deliberative process exemption. The second would amend section 11(i) of FOIA to modify the attorneys’ fee provision for prevailing parties.  Although the proposed FOIA amendments were quietly incorporated into a bill initially introduced to amend the Illinois Act on the Aging, they are now getting a lot of attention from transparency advocates and others.   You can read the bill here.

With respect to the proposed changes to 7(1)(f), they don’t seem to offer anything groundbreaking for public bodies. The amendments clarify what a public body can do if a “draft record” is cited publicly by the head of the public body – under the proposed amendment, the public body can still claim the exemption to withhold the record, but would need to release that portion of the record that was publicly cited.  The amendments also state that records that qualify under this exemption remain exempt even after the record was adopted or incorporated into a final decision.  That last part may require further explanation since a record that is acted on by the public body would likely no longer qualify as a “preliminary” record.  Further clarification on the rationale for the 7(1)(f) amendments would also be helpful.  One positive change for public bodies is that the bill makes it clear that even purely factual material can qualify under the deliberative process exemption - recall the recent PAC opinion where the PAC stated otherwise, reported on yesterday's blog.  

It is the proposed changes to section 11(i) that seem to be of questionable benefit to public bodies.  Currently, there is a circuit court split on whether attorneys’ fees are recoverable if the public body voluntarily produces the records after a lawsuit has been filed.  In the first appellate district, the answer is yes, the requester is still entitled to recover its attorneys’ fees even if the public body voluntarily turns over the records.  The second appellate district held otherwise, however, finding that a requester was not entitled to attorneys’ fees unless the court ordered the public body to turn over the records.  I wrote about these two cases on the blog here.

I have two concerns with the proposed amendments.

First, the bill would mandate payment of attorneys' fees even if the public body voluntarily turns over records after a lawsuit is filed if the court imposes a civil penalty.  While you might think it unlikely that a public body would get hit with a civil penalty if it voluntarily turns over the records, that is exactly what happened in Rock River Times v. Rockford Public School District, 2012 IL App (2d) 1108798 (October 3, 2012).  In that case, the court did not require the school district to pay the newspaper's attorneys' fees.  Under the proposed bill, however, because the court imposed a civil penalty, the district would be mandated to pay attorneys' fees.

Second, the proposed amendment defines "prevailing" to include court-approved settlements and consent decrees.  In my opinion, it seems counterproductive to adopt a law that would seem to discourage public bodies from settling FOIA disputes for fear of having to pay the requester’s attorneys’ fees if it voluntarily provides the records to the requester.  Punishing a public body for settling litigation  doesn't benefit anyone.  Prolonged litigation is costly to taxpayers who will ultimately fund these cases.  And the requester is certainly not going to get the documents any sooner if the case continues in litigation rather than settling.    

What I find interesting is that the press association, Attorney General, and other transparency advocates are avidly opposing this bill.  Maybe I’m missing the benefit to the public body of the proposed changes to section 11(i)?

Post Authored by Julie Tappendorf

Monday, December 1, 2014

Employee Resume & Application Subject to FOIA Release

An individual filed a FOIA request asking for a copy of the completed employment application and resume for a village employee. The village denied the request, citing a variety of FOIA exemptions, including section 7(1)(c) (personal information) and section 7.5(q) (information prohibited from disclosure under the Personnel Records Review Act). The requester appealed, and in a recent binding opinion, the Public Access Counselor found the village in violation of FOIA.  PAC Op. 14-015.

The village first argued that the information contained with the employee's resume and employment application did not "pertain to the public duties of public employees," so was not subject to release under FOIA.  The village cited a variety of cases to support its argument that personnel records are exempt from release under FOIA.  The PAC rejected the village's argument, however, finding that those cases were based on the exemptions contained in FOIA prior to 2010 when the legislature eliminated the per se exemption for personnel records.  The PAC interpreted the  current law to require the village to demonstrate that release of these personnel records would be a clearly unwarranted invasion of personal privacy of the employee that outweighs any public right to disclosure.  The PAC determined that the "compelling public interest" in disclosure of a public employee's work experience, education, and credentials so the public can assess the employee's qualifications to perform his or her job outweighed the employee's privacy rights.  

The PAC also rejected the village's second argument, that the information was exempt under the personnel records review statute.  The PAC noted that there is no provision in that law prohibiting a public body from disclosing resumes or employment applications.  

Third, the village argued that the records were exempt under 7(1)(f), as "inter- and intra-agency predecisional and deliberative material" because the records were used solely to assist the village in its deliberative process in considering and selecting the employee.  The PAC rejected that argument  as well, finding that purely factual material does not fall within this exemption.  

Finally, the village argued that the records contained certain information that falls within the "private information" exemption under 7(1)(b) of FOIA.  The PAC responded that this information can be redacted, but the remainder of the records must be released.

The PAC concluded that the village must provide the resume and employment application to the requester, with proper redactions to protect the employee's private information, including his signature on the application.

Post Authored by Julie Tappendorf