April 2015 ~ Municipal Minute

Thursday, April 30, 2015

City Owed No Duty to Pedestrian Crossing Mid-Block

Thursday, April 30, 2015 Julie Tappendorf

A pedestrian was struck by a car and sued the driver, the City of Quincy, and Ameren (electric company), seeking damages for her injuries. Her claims against the City and Ameren were based on allegations that the streetlights were not functioning which created an unreasonably unsafe condition. The circuit court dismissed the City and Ameren from the case, and she appealed. In Peters v. Joyce Riggs, 2015 IL App (4th) 140043, the appellate court affirmed the dismissal of her case against the City and Ameren.

With respect to her case against the City, the City argued that it was protected by the Tort Immunity Act. Specifically, the City cited section 3-102 that protects public entities from liability if the individual was not an intended user of the street. In this case, the City argued that it owed no duty because the pedestrian crossed the street mid-block and outside of the crosswalk.

Ameren's also argued it owed the plaintiff no duty because she crossed the street outside of the established crosswalk.

The appellate court found that plaintiff was not an intended pedestrian user of the street at the location of the accident. As a result, neither the City nor Ameren owed the pedestrian a duty, and their case was dismissed. In addition, the appellate court also dismissed the counterclaim filed by the driver against Ameren and the City for contribution. The court rejected the driver's argument that Ameren "breached" its contract with drivers to maintain streetlights in a reasonably safe condition. It also rejected her argument that the City owed any duty to maintain its property in a reasonably safe condition.

Post Authored by Julie Tappendorf

Wednesday, April 29, 2015

An Electoral Board May Require an Objector to Testify

Wednesday, April 29, 2015 Julie Tappendorf

Recently, an Illinois court upheld an electoral board's dismissal of a "shot-gun" style objection to a candidate's nomination papers based, in part, on the objector's failure to appear at the hearing to answer questions about how the objections were formulated. Erik Daniel v. John Daly, et al.,

On December 11, 2014, John Daly filed nomination papers with 262 signatures to run for the office of trustee of South Suburban College of Cook County District 510. During the objection filing period, Erik Daniel filed a verified objector’s petition objecting to Daly’s nominating petitions. The objection challenged the validity of 240 signatures. Only 22 signatures were not objected to and the statutory minimum was 50 signatures.

After the objections were filed, the electoral board convened a hearing. At its first meeting, the electoral board adopted rules of procedure, as required by the Election Code. These rules provided that, among other things, the electoral board could require the objector to make a preliminary showing of the factual basis for grounds stated in the objector’s petition to determine if the allegations were made in good faith based on knowledge, information, and/or belief formed after reasonable inquiry. The rules also provided that a failure to adhere to the rules could be grounds for striking and/or dismissing some or all of the objector’s petition.

The candidate subpoenaed the records of the Cook County Clerk’s office to see who accessed the voter registration records. After learning that the objector had not viewed the records, the candidate filed a motion to dismiss the objection. At the hearing on the candidate's motion to dismiss, the objector failed to appear. His attorney was present, and argued that the objector's appearance was not necessary. The electoral board disagreed, granting Daly’s motion to strike and dismiss on the basis that they were improper and not made in good faith.

On appeal to the appellate court, Daniels argued that he was not required to testify at the hearing and that the Board’s decision was arbitrary and contrary to the law because the Election Code does not require him to personally conduct a records examination prior to filing his objections. Daly argued that the objection itself was arbitrary and it was a shot-gun petition that must be dismissed. The appellate court held that the electoral board had the authority to require the objector to appear and answer questions about whether his objection was based upon actual knowledge. As a result, the court upheld the dismissal of the objection.

Post Authored by Tiffany Jaworski, Ancel Glink

Tuesday, April 28, 2015

7th Circuit Upholds City's Assault Weapon Ban

Tuesday, April 28, 2015 Julie Tappendorf

Hot off the virtual presses is the Seventh Circuit's decision upholding the City of Highland Park's assault weapon ban in Friedman v. Highland Park, (7th Cir. April 27, 2015).

The City of Highland Park, Illinois adopted an ordinance prohibiting the possession of assault weapons or large capacity magazines (those that can accept more than 10 rounds). A City resident who owned a banned rifle and several large-capacity magazines before the ordinance took effect sued the City, along with the Illinois State Rifle Association, claiming that the ordinance violated the Second Amendment, as interpreted by the U.S. Supreme Court in District of Columbia v. Heller and McDonald v. City of Chicago. The City defended its ordinance by arguing that weapons with large-capacity magazines are "dangerous and unusual" under Heller.

The Seventh Circuit first held that Heller does not purport to define the full scope of the Second Amendment, nor does it "imperil every law regulating firearms." Second, the Seventh Circuit posed the question as follows:

Whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia.

The guns and magazines banned by Highland Park were not common in 1791. Moreover, although some of the weapons prohibited by the ordinance are commonly used for military and police functions, the Court held that states (and local governments) should be allowed to decide when civilians can possess military grade weapons. Since Highland Park did not ban other types of weapons (i.e., handguns and most long guns), the ordinance still leaves residents with adequate means of self-defense. The Court also found persuasive studies submitted by Highland Park that a ban on assault weapons reduces the overall dangerousness of crime, and could increase the public's sense of safety. Based on these factors, the Court upheld Highland Park's ordinance.

The Court’s opinion leaves the door open for future experimentation with local firearms regulations. In McDonald, the Supreme Court advised that “‘[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.’” Accordingly, the Seventh Circuit concluded in this case that “McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation.”

Judge Manion dissented. In his view, assault rifles and large capacity magazines, while admittedly dangerous, are also an effective method of defending one's home and family. Based on his reading of Heller and McDonald, and application of strict scrutiny to the ordinance, the City's ban violates the Second Amendment.

Post Authored by Julie Tappendorf and Dan Bolin, Ancel Glink

Constitutional Issues

Monday, April 27, 2015

Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws

Monday, April 27, 2015 Julie Tappendorf

From Strategically Social: Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws:

On April 1, 2015, Carlo Licata filed a class action complaint in Cook County, Illinois, against Facebook, Inc. alleging that the company violated the Biometric Information Privacy Act (an Illinois statute) when it launched "Tag Suggestions" that recognizes and identifies friends in photos uploaded by users so the users can "tag" them in the photo. Licata v. Facebook, Inc. (Cook County)

The Biometric Information Privacy Act (BIPA) was enacted in 2008, and makes it unlawful for a company to "collect, capture, purchase, receive through trade, or otherwise obtain a person's biometric identifiers or information unless the company provides advance notice and receives a written release for the use.

Licata alleges that the "Tag Suggestions" program uses facial recognition technology to scan faces in photos to determine identities based on stored photos in user profiles. In the complaint, Licata argues that the data stored by Facebook is derived, in part, from biometric identifiers collected from the image of a person's face. The storage and use of this stored biometric data (which Licata alleges is millions of user faceprints) is done without prior notice and written consent in violation of BIPA.

Licata defines the "class" for the class action as all Illinois residents who had their faceprints collected, captured, received, or otherwise obtained by Facebook while residing in Illinois.

This will be an interesting case to watch.

Disclosure: The author is an Illinois resident with a Facebook profile, so a potential plaintiff if the class is certified.

Friday, April 24, 2015

Illinois House Passes Bill Repealing Red Light Camera Law

Friday, April 24, 2015 Julie Tappendorf

In yet another move to restrict local government control that could impact community safety and will affect local government revenues, the Illinois House just approved House Bill 173, making it illegal to install red light cameras in non-home rule municipalities. The ban would not apply to Chicago or other home-rule communities (those communities with 25,000 population or that have elected by referendum to become home rule). If approved by the Senate and signed by the Governor, the ban on red light cameras in non-home rule municipalities would become effective January 1, 2017.

Communities that have entered into agreements with outside consultants to install and monitor red light cameras in their communities may need to review the terms of those agreements to determine how the law, if passed, will affect those agreements.

Post Authored by Julie Tappendorf

Thursday, April 23, 2015

Traffic Stop Delay Violates 4th Amendment Without Reasonable Suspicion

Thursday, April 23, 2015 Julie Tappendorf

This week, the U.S. Supreme Court held that police who use drug-sniffing dogs in conjunction with traffic stops can’t keep the motorist waiting after the ticket is written when they have no reasonable suspicion justifying the extra time. Rodriguez v. United States

The case involved a K-9 officer who stopped Rodriguez for driving on a highway shoulder in violation of Nebraska law. After the officer processed Rodriguez license and issued a warning, he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, he was detained until a second officer arrived. At that time, the police dog alerted the officers to the presence of drugs in the vehicle. A subsequent search found methamphetamine, and Rodriguez was indicted on federal drug charges. He moved to suppress the drug evidence, arguing that the officer prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff. The trial court denied his motion, and he plead guilty and was sentenced to five years in prison. The Eight Circuit Court of Appeals affirmed, finding that the 7-8 minute delay was an acceptable "de minimis" intrusion on Rodriguez's personal liberty.

Rodriguez appealed to the U.S. Supreme Court. On Tuesday, the Court reversed the court of appeals. Although a routine traffic stop is not an arrest, the extension of that routine traffic stop beyond the time needed to handle the traffic violation (in this case, to issue the warning ticket) would violate the Constitution’s shield against unreasonable seizures, if there is no reasonable suspicion justifying the delay. The Supreme Court sent it back to the court of appeals to consider whether the police officer had a reasonable suspicion of criminal activity that justified detaining the motorist for 7-8 minutes after the traffic stop was complete.

Post Authored by Julie Tappendorf

Constitutional Issues

Wednesday, April 22, 2015

Federal Government Issues Guidelines on Employee Use of Social Media

Wednesday, April 22, 2015 Julie Tappendorf

From Strategically Social: Federal Government Issues Guidelines on Employee Use of Social Media:

On April 9, 2015, the U.S. Office of Government Ethics issued a legal advisory titled "The Standards of Conduct as Applied to Personal Social Media Use" that apply to executive branch employees of the federal government. You can read the legal advisory here.

The introduction to the legal advisory states that the standards of conduct are not intended to prohibit executive branch employees from establishing and maintaining personal social media accounts but to serve as guidelines for these employees in engaging in personal social media activities.

Here's a preview of the standards of conduct:

1. Use of Government Time and Property

When employees are on-duty, they must make an "honest effort to perform official duties." That means that access and use of personal social media accounts should be limited while on duty. Further, government property must be used only to perform official duties unless an employee is authorized to use the property for other purposes. Finally, employees must follow their agency policies on social media use, including any 'limited use" policies.

2. Reference to Government Title or Position & Appearance of Official Sanction

As a general rule, employees are prohibited from using their official titles, positions, or any authority associated with their public offices for private gain or in any manner that could be interpreted as government endorsement of their activities. However, the standards do not prohibit an employee from identifying his or her official title or position on the site's biographical information area. The standards set out 7 factors for agency ethics officers to consider in determining whether an employee has violated this standard, including whether an employee states that he or she is "acting on behalf of the government" or "refers to his or her connection to the government as support for the employee's statements." Employees are not required to post disclaimers disavowing government endorsement, although they are encouraged to clarify that their communications reflect only their personal views and not the views of the federal government or agency.

3. Recommending and Endorsing Others on Social Media

Employees are permitted to make recommendations or endorsements of others in their personal capacity, such as on LinkedIn.

4. Seeking Employment Through Social Media

Employees must be cautious in using social media to seek employment to ensure that their conduct complies with other federal regulations, including applicable disqualification requirements and any additional agency regulations. Posting a resume or summary of professional experience will not violate the standards.

5. Disclosing Nonpublic Information

Employees are prohibited from disclosing nonpublic information to further their private interests or the private interests of others.

6. Personal Fundraising

Employees may use personal social media accounts to fundraise for nonprofit charitable organizations in a personal capacity, so long as the employee does not personally solicit funds from a subordinate or a known prohibited source. Employees may not use their official titles, positions, or authority to further fundraising efforts.

7. Official Social Media Accounts

Employees who use official government accounts must apply with the agency directives, regulations, and policies and all conduct and activities must be for official purposes.

Post Authored by Julie Tappendorf

Tuesday, April 21, 2015

Zoning Commission Update on Bleacher Case

Tuesday, April 21, 2015 Julie Tappendorf

As regular readers know, we have posted in the past about the dispute between the Crystal Lake South High School, the City of Crystal Lake, and neighboring residential property owners involving the High School's installation of 50-foot tall bleachers without City zoning approval. The High School's appeal of the appellate court's previous ruling against it is still pending at the Illinois Supreme Court.

After both the trial and appellate courts ruled against the School, the School did file an application with the City for after-the-fact zoning approvals, including a request for a special use permit and height variations. Last week, the City's planning and zoning commission recommended that the School's zoning applications be denied. The School's offer to lower the bleachers from 50 feet to 38 feet, and add more landscaping did not appease the commission or the neighbors who showed up at the zoning hearing to express their concerns and objections to the School's application.

The planning and zoning commission's recommendation to deny the zoning application will now go to the City Council for final action in May.

As a side note regarding the Supreme Court appeal, the Illinois Municipal League filed an amicus brief in support of the argument that schools are subject to local zoning, which you can read here.

Post Authored by Julie Tappendorf

Land Use and Environmental

Monday, April 20, 2015

IHSA Not a Public Body Under FOIA

Monday, April 20, 2015 Julie Tappendorf

Last year, the Better Government Association filed a lawsuit against the Illinois High School Association (IHSA) in Cook County after the IHSA declined to release records pursuant to a FOIA request. The IHSA had supported its denial of the FOIA request by arguing that it is not subject to FOIA because as a private, non-profit organization, it does not fall within the definition of "public body." Last week, a circuit court judge agreed with the IHSA, and granted its motion to dismiss the case. The court noted that the organization and supervision of interscholastic athletics and activities are not functions exclusively performed by the government, and the fact that the association was comprised of members who are all public employees did not, on its own, turn a private association into a public body under FOIA.

Post Authored by Julie Tappendorf

Freedom of Information

Friday, April 17, 2015

Upcoming Local Government Training in Lake County

Friday, April 17, 2015 Julie Tappendorf

On April 23rd, the Lake County Bar Association will host an afternoon seminar for local government officials and employees called "Laws Every Local Government Official Needs to Know." Two Ancel Glink attorneys will be presenting sessions at the seminar: Adam Simon will present the session on economic development tools and John Christensen will discuss public improvements and contract issues.

Here are details about the seminar:

Laws every Local Government Official Needs to Know

Thursday, April 23, 2015

12:30 - registration

1:00-4:15 p.m. - sessions

College of Lake County, Building C, Auditorium C-005

Topics:

An Overview of FOIA
A Review of PAC Decisions
The Pros & Cons of Mediation & Arbitration
Economic Development: Learn the Basics for a Variety of Economic Development Tools
Getting Your Public Improvement Project Up & Running
Litigation Update
Open Meetings Act

You can register on the LCBA's website here.

Thursday, April 16, 2015

Candidates Removed from Ballot for Fatal Flaw in Circulators' Affidavits

Thursday, April 16, 2015 Julie Tappendorf

An Illinois appellate court recently affirmed an electoral board decision removing from the ballot a slate of new-party candidates in Franklin Park whose nomination papers had a fatal flaw in the circulators’ affidavits. Zurek v. Peterson, 2015 IL App (1st) 150508-U.

Section 10-4 of the Election Code requires all petition circulators to sign a sworn statement at the bottom of each petition sheet that must include, among other things, one of the following factual attestations: “(1) indicating the dates on which that sheet was circulated, or (2) indicating the first and last dates on which the sheet was circulated, or (3) certifying that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition.” The circulator affidavits on all of the petitions for these Franklin Park candidates failed to include any of the three factual statements, and instead included a legal conclusion that the sheets were circulated “within the statutory time period for petition circulation."

In ruling that the circulator affidavits failed to comply with the Election Code, the electoral board noted that a person cannot be prosecuted for perjury based on statements that are legal conclusions, rather than statements of fact. In the board's view, the purpose of section 10-4, which includes a penalty provision and is mandatory in nature, is to protect the integrity of the electoral process by making petition circulators accountable for their conduct and subject to perjury prosecution if there is a false swearing in their circulator affidavits. Since swearing to a legal conclusion does not put a circulator under penalties of perjury, and since the three options set forth in section 10-4 in regards to the time in which a petition was circulated all include affirmative statements of fact, the electoral board ruled, and the appellate court affirmed, that the failure to include any such factual statements in the circulator affidavits resulted in a failure to protect the integrity of the election. Therefore, when these circulators swore to the legal conclusion that the petitions were circulated “within the statutory period for petition circulation,” they failed to subject themselves to perjury penalties in violation of a statute that was designed precisely for the purpose of safeguarding the integrity of the electoral process.

The appellate court also affirmed the electoral board’s ruling that the candidates’ new political party, as an entity, was not required to be named in the objector’s petition as a necessary party to the electoral board litigation. In a motion seeking to dismiss the objector’s petition, the candidates argued that their new political party should have been a named respondent and, therefore, should have been a party before the board in addition to the three individual candidates, each of whom were named as respondents. The electoral board ruled, and the appellate court affirmed, that no law or public policy requires political parties to be named respondents in electoral board actions. As the appellate court pointed out in its opinion, in this case the new political party never even came into existence, because the party would have been created only upon the filing of legally valid nomination papers, and this party’s nomination papers were judged to be legally invalid. Thus, the party could not have been named in the objector’s petition or served with a copy thereof.

DISCLOSURE: Ancel Glink attorney Adam W. Lasker was the court-appointed public-member chairman of the Franklin Park Municipal Officers Electoral Board for this case.

Post Authored by Adam Lasker, Ancel Glink

Wednesday, April 15, 2015

What Does Indiana’s Religious Freedom Bill Actually Say?

Wednesday, April 15, 2015 Julie Tappendorf

From The Workplace Report with Ancel Glink: What Does Indiana’s Religious Freedom Bill Actually Say?

If you paid attention to the news over the last few weeks, you probably heard about Indiana’s religious freedom law. The law, titled the "Religious Freedom and Restoration Act," sparked a firestorm of controversy around the country. Opponents of the bill claimed that it permitted discrimination against gays, lesbians, and the transgendered. Supporters claimed that it allows people the freedom to follow their religious beliefs. What was largely missing from the debate, however, was an objective legal analysis of what the law actually said.

What many people may find surprising is that the law says nothing about homosexuality, gay marriage, or anything related to that topic. The law does, however, state that the government may not "substantially burden a person’s right to exercise religion" unless there is a "compelling government interest" to do so, and it is the "least restrictive means possible." This means that the government cannot force someone to follow a law that would violate his or her religious beliefs unless it has a really good reason to do so.

These types of religious freedom acts are not uncommon—twenty states (including Illinois) and the federal government have them. What makes the situation in Indiana different from other states, including Illinois, is that Indiana has not enacted laws to protect a person's sexual orientation. For example, in Illinois, the Illinois Human Rights Act forbids an employer from refusing to hire or taking negative employment action against an employee because of his or her sexual orientation or gender identity. Illinois also includes "sexual orientation" in the state's nondiscrimination statute that bans discrimination in employment, housing, public accommodations, etc. Last year, same sex marriage became legal in Illinois.

Ultimately, the lesson employers can learn from the outcry over Indiana’s religious freedom act is that the public is sensitive to discrimination, legitimate or perceived, against gays and lesbians. Any action that may be seen as discriminatory could have serious ramifications for an employer, even if the employer is acting in accord with its religious beliefs.

Original Post Authored by Matt DiCianni, Ancel Glink

Constitutional Issues / Personnel

Tuesday, April 14, 2015

Settlement Not Approved by City Council is Unenforceable

Tuesday, April 14, 2015 Julie Tappendorf

Plaintiff sued the City after she was injured falling into a sinkhole near her home. The night before trial, the City Attorney, after conferring with members of the City Council's Code and Regulation Committee, offered to settle the case for $600,000, which plaintiff accepted. The plaintiff signed the settlement agreement, and two weeks later, the agreement was presented to the City Council for approval. Two of the council members who previously concurred in the settlement changed their votes and voted to reject the settlement. As a result, the settlement agreement was not approved. Meade v. City of Rockford, 2015 IL App (2d) 140645 (April 8, 2015)

The plaintiff sued to enforce the agreement against the City, arguing that the settlement agreement was effective when the City Attorney presented the offer with the concurrence of the Committee members.

The trial court certified 3 questions to the appellate court, which were answered as follows:

1. Is the settlement of litigation excluded from the statutory requirement that the city council approve items that involves the expenditure of money or creation of liability against the City under 65 ILCS 5/3.1-40-40?

The appellate court answered no, finding that a $600,000 payment to the plaintiff in the settlement of her case against the city required city council approval because it involved the expenditure of money and the creation of liability.

2. Are City Council members required to vote consistently with their previous authority to the City Attorney to make the settlement offer?

Again, the appellate court said no. There was no evidence that the Committee members told the plaintiff that no further approval was necessary or that they would not change their votes when the matter came to the City Council for approval. More importantly, the court would not adopt a position requiring Committee members to vote in accordance with their statements, if such statements had been made.

The court did, however, find the City's change of course on the settlement very troubling, and suggested that the City's conduct might even be sanctionable, remanding that issue back to the trial court.

3. Is a settlement agreement reached between the parties during a pretrial settlement conference enforceable against the City notwithstanding the City Council's subsequent vote to not approve it?

Not surprisingly, given the prior discussions, the court answered this in the negative. Because state statute requires city council approval of a contract involving the expenditure of money, this particular agreement was not enforceable because it was not approved by the council.

Parties who negotiate settlements with government bodies should be on notice that the settlement is not final until it is approved by the corporate authorities. There may be various exceptions (i.e., insurance settlements, legislative authority for expenditures of a certain amount), but as a general rule, settlement agreements are subject to the same approval process as other contracts.

Post Authored by Julie Tappendorf

Monday, April 13, 2015

New Dates for Police Deadly Force Training Sessions

Monday, April 13, 2015 Julie Tappendorf

For those of you who missed the police deadly force training in Bloomington on March 5th, we are happy to announce that two additional training sessions have been scheduled in May. The first will be held on May 4th in Lisle, and the second on May 8th in O'Fallon. Ancel Glink is a co-sponsor of this event with the Illinois Municipal League and the Illinois Association of Chiefs of Police.

The one-day seminar brings together mayors, municipal managers, police administrators and attorneys to discuss issues which may arise from a controversial case of police use of deadly force. Topics to be covered include: training, transparency and accountability, crisis management and the law, community and media relations, leadership by elected officials, supporting the rank and file, and use of new technology. Recent events have shown that a crisis can occur in any community at any time. Listen to the experts and learn what steps to take so that your community doesn't go up in flames and your police officers don't turn their backs on their leaders.

Program registration is $105 and includes lunch.

You can see the program agenda here: PROGRAM AGENDA

Learn more about registration here: REGISTRATION INFORMATION.

Friday, April 10, 2015

Court Upholds Denial of Liquor License Based on Law Enforcement Problems

Friday, April 10, 2015 Julie Tappendorf

Last month, an Illinois appellate court upheld Chicago’s Local Liquor Commission’s denial of the issuance of a liquor license on the basis that it would “tend to create a law enforcement problem” for the City. Move N Pick Convenience, Inc., v. Rahm Emanuel.

In early 2012, Move N Pick applied for a packaged goods liquor license. Despite the background investigation revealing no criminal history, the Liquor Commission denied the license stating that a liquor license at the proposed location would “tend to create a law enforcement problem.” The Commission cited a letter from the police district commander stating that calls for service and criminal activity would increase at that location if a liquor license were granted, and that the alderman and residents of the areas supported a denial of the license. On appeal to the circuit court on administrative review, the court reversed the decision of the Commission, rejecting the City’s justification for the denial.

The appellate court disagreed with the trial court, finding that denial of a liquor license on the basis that it would “tend to create a law enforcement problem” was sufficient regardless of the applicant never having violated liquor laws or other laws. The appellate court determined that the City could base its decision on other factors that could create a law enforcement problem such as gang problems and a high number of calls for police service. The court acknowledged that calls leading to arrests would tie up officers who would otherwise be addressing the gang and crime problems in the area. As a result, the appellate court upheld the commission’s denial of the license.

Post Authored by Tiffany Jaworski, Ancel Glink

Thursday, April 9, 2015

TRO Against City's Ban on Charity Collection Boxes Upheld

Thursday, April 09, 2015 Julie Tappendorf

The Sixth Circuit Court of Appeals recently upheld the district court's issuance of a temporary restraining order against the City of St. John, Michigan relating to its ban on charity collection bins. Planet Aid v. City of St. Johns (6th Cir. April 6, 2015)

Last year, St. Johns adopted an anti-blight ordinance banning off-site donation boxes. Section 5.518(1)(a) of the ordinance defines a “[d]onation box” as “[a]n outdoor, unattended receptacle designed with a door, slot, or other opening that is intended to accept donated goods or items.” The ban states that "No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns.” Section 5.518(1)(b) describes the purpose of the ordinance as follows:

It is the intent of this section to prohibit donation boxes to protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties. Unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity. It is also the intent of this section to preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.

After the ban was passed, the City removed two bins placed by the organization "Planet Aid." Shortly afterward, Planet Aid filed a lawsuit against the City challenging the ban, arguing that it violated Planet Aid’s First Amendment rights because it infringed on Planet Aid’s protected speech of charitable solicitation and giving.

After holding oral argument, the district court granted plaintiff’s motion for a preliminary injunction. The district court concluded that “Planet Aid’s operation of donation bins to solicit and collect charitable donations qualifies as protected speech under the First Amendment” and that the Ordinance #was subject to strict scrutiny. The court held that Planet Aid, in arguing that the ordinance fails strict scrutiny because it implements an overly broad, prophylactic ban on all bins so the City can avoid dealing with hypothetical nuisances or other issues that may arise with certain bins in the future, proved a substantial likelihood of succeeding on the merits of its free speech claim.

The case was appealed to the 6th Circuit, which upheld the district court's issuance of the TRO. The appeals court determined that the ordinance "clearly regulates protected speech on the basis of its content. The ordinance does not ban or regulate all unattended, outdoor receptacles. It bans only those unattended, outdoor receptacles with an expressive message on a particular topic— charitable solicitation and giving" - an expression that the U.S. Supreme Court has found "worthy of strong constitutional protection." As a result, the ordinance was subject to strict scrutiny, which the City could not satisfy.

The remainder of the case will move forward, subject to the injunction against enforcement of the ordinance.

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Wednesday, April 8, 2015

NLRB Law Judge Affirms Employee Right to Use Employer Email

Wednesday, April 08, 2015 Julie Tappendorf

From the Workplace Report with Ancel Glink: NLRB Law Judge Affirms Employee Right to Use Employer Email

We are often asked by our clients whether they can adopt and enforce a workplace policy prohibiting employees from using their government email for personal activities. We've expressed concerns about a blanket prohibition on use of employer emails because such a policy could implicate certain employment protections, including protected concerted activities, particularly in light of past NLRB rulings and decisions, including one issued last month.

In this case, an NLRB administrative law judge struck down an employer rule that prohibited employees from using business email to “engage in activities on behalf of organizations.” The law judge said the prohibition was too broad and violated the National Labor Relations Act. Purple Communications Inc. and Communication Workers of America, 2015 WL 1169344 (N.L.R.B. Mar. 16, 2015). The employer had argued that allowing blanket use of emails by employees “on behalf of organizations” may introduce computer viruses to the system. The administrative law judge rejected that argument, stating that the employer's concerns could be addressed by software programs and rules more specifically targeted to downloading external content.

While Illinois Labor Boards have not yet adopted the new NLRB position on use of an employer’s email system, it is likely it would, should it be presented with a similar case. Employers should review their email policies to make sure their policies do not prohibit employee organizing rights. Also, care should be taken when disciplining an employee for violation of an existing email policy. That existing policy may now be considered invalid if it is a barrier to employees exercising rights under state labor laws.

Original post Authored by Steve Mahrt, Ancel Glink

Personnel / Social Media

Tuesday, April 7, 2015

Use of Photos Without Permission Costs Lawyer $8000

Tuesday, April 07, 2015 Julie Tappendorf

From Strategically Social: Use of Photos Without Permission Costs Lawyer $8000

Now, here's an interesting (and maybe a little ironic) case out of D.C. involving use of stock photos without permission. The plaintiff company claims that the defendant used two of the company's photos on the defendant's website without the company's permission. The suit sought $150,000 for each instance. The irony is that the defendant happens to be a patent lawyer. Upon notice of the alleged infringement, the lawyer removed the photos, but didn't respond to the company's efforts to settle so the company filed the complaint. The case eventually did settle, to the tune of $8,000.

Lesson? You can't just copy or upload photos on your own site without permission - just because they are already on the internet does not necessarily make them fair game to everyone.

Post Authored by Julie Tappendorf

Monday, April 6, 2015

Owner Responsible for Tenants' Unpaid Water Bills Under Local Ordinance

Monday, April 06, 2015 Julie Tappendorf

A property owner of rental units filed a lawsuit against the Village of Dolton and its administrator claiming that the Village's failure to "red tag" his tenant's units violated the Village's own ordinances. Mack argued that because of the Village's failure to shut the water off in these delinquent units, as the owner, he was left solely responsible for paying the unpaid water bills which, in some cases, exceeded $700, for a total amount of $18,000 for all of the unpaid bills for his tenants' properties. In his lawsuit, he asked the court to declare the Village's actions unlawful and to award him attorneys fees. Mack Industries, Ltd. v. Village of Dolton, 2015 IL App (1st) 133620.

The city filed a motion to dismiss the complaint based on the Tort Immunity Act. Specifically, the Village argued it was immune from liability under section 2-103 for failing to enforce its own ordinances and from section 2-104 for failing to issue permits or certificates. The court granted the motion, and Mack appealed.

The appellate court first held that the Village's ordinance clearly imposed joint and several liability for water charges on both the user (in this case, the tenant) and the owner (in this case, Mack). The ordinance authorized, but did not obligate, the Village to shut off water to a user for unpaid invoices by using language that provide that premises with delinquent accounts 'may be considered for red tagging in preparation for shut off of water to the premises." Consequently, Mack was not entitled to declaratory relief, because he had no right to the relief being requested - i.e., that the Village go after the tenant alone for the unpaid charges.

The court also rejected Mack's breach of contract argument, finding that the provision of water service "represents the exercise of its police power" and not the establishment of a contractual relationship between the Village and the water user or property owner.

Finally, the court rejected Mack's argument that the administrator engaged in "willful and wanton conduct" in not following the Village's ordinance.

Illinois municipalities may want to review their own water service regulations and ordinances to see whether they have similar language that authorizes, but does not obligate, the Village to shut off water to a property with unpaid water invoices. Additionally, if a municipality wants to hold the owner responsible for the unpaid invoices of its tenants (which can be particularly in situations where tenants move out without bringing their water account current), there should be language in the ordinance stating that an owner is jointly and severally responsible for these invoices.

Post Authored by Julie Tappendorf

Friday, April 3, 2015

Update on State Legislation Affecting Local Governments

Friday, April 03, 2015 Julie Tappendorf

The Illinois General Assembly is officially on "spring break" until April 13th. A lot happened right before the legislators headed out to Ft. Lauderdale, South Padre Island, or their home district. The Illinois Municipal League has done a great job summarizing some of the more substantive actions taken in their March 27th IML Statehouse Briefing.

Here's a brief summary of just a few of these bills:

SB 1815 proposes to restrict the amount a municipality can charge for connecting to water and sewer facilities. We've posted about this legislation before, and expressed our concerns about the impact this legislation would have on municipal finances and facilities, and how it might affect previously established special service areas, recapture agreements, and bonds. This bill is still in committee.

HB 2717 is one of the many bills requiring units of government to post an extensive amount of information and documentation on their websites. This bill even requires a government to create a website if they don't already have one. This bill has moved out of committee and is going to the house floor for a vote.

SB 1206 would amend the TIF Act to require all municipalities to approve a tax increment redevelopment plan or project (not just the municipality who is establishing the TIF) if a school district overlaps multiple municipalities. This bill is now in second reading.

SB 36 would amend the School Code to require school districts to comply with local zoning.

There are many, many other bills pending in the legislature that affect local authority and control.

Post Authored by Julie Tappendorf

Thursday, April 2, 2015

Webcast— Ethical Rules and Considerations for Planners, Planning Commissioners, and Lawyers

Thursday, April 02, 2015 Julie Tappendorf

The Planning and Law Division of the American Planning Association is hosting an upcoming webcast "Ethical Rules and Considerations for Planners, Planning Commissioners, and Lawyers" on Wednesday, April 8th from 12:00 to 1:30 pm (Central Time).

Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. This webcast explores the ethical rules and considerations governing planners, planning commissioners, and lawyers who work with planners and appear before planning commissions. The webinar will cover the primary sources of ethical rules, common ethical mistakes, and procedures to correct common mistakes. In addition, the webinar will have an interactive component that will enable participants to interact with the presenters and other participants on ethical scenarios.

Ancel Glink Partner David Silverman will moderate the panel. Speakers include Hiram Peck, FAICP, Director of Planning and Community Development, Town of Simsbury, CT; Brian Smith, Partner at Robinson & Cole, LLP; and Evan Seeman, Associate at Robinson & Cole, LLP.

Register here.

Ethics / Seminars

Wednesday, April 1, 2015

Should Illinois Municipalities be Authorized to File for Bankruptcy?

Wednesday, April 01, 2015 Julie Tappendorf

A question that has come up recently in Illinois is whether Illinois municipalities can file for bankruptcy. We've seen larger cities in other states (like Detroit) go through the bankruptcy process, but have had any experience in Illinois. That has less to do with the current financial condition of Illinois municipalities and more to do with the current state of the law in Illinois.

Under Chapter 9 of the federal Bankruptcy Code, municipalities have the authority to file for bankruptcy provided they meet certain criteria. One of those requirements is that bankruptcy is authorized by state statute. Illinois does not currently have a statute specifically authorizing municipal bankruptcies, although more than half of all states do authorize municipal bankruptcy.

With the increase in unfunded mandates by the state legislature, and the potential for Illinois municipalities to lose 50% of their income tax revenues, the Illinois Municipal League has issued a position statement in support of legislation authorizing Illinois municipalities to file for bankruptcy. That bill is HB 298. You can read more about the IML's position on its website here.

Post Authored by Julie Tappendorf

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