August 2015 ~ Municipal Minute

Friday, August 28, 2015

Municipal Law Deskbook Just Published

Friday, August 28, 2015 Julie Tappendorf

For you municipal law nerds out there (you know who you are), you might be interested in a new municipal law reference book that was just published by the ABA Section of State and Local Government.

The book, called the "Municipal Law Deskbook," provides a comprehensive analysis of the current legal issues faced by municipalities today. The book's authors are local government attorneys across the country, including Ancel Glink partner and blog author Julie Tappendorf, who authored the chapter titled "Let the Sunshine In - Compliance with Open Meetings and Records Laws." Other topics addressed in the book include First and Fourth Amendment, Land Use, Labor and Employment, Intergovernmental Agreements, Government Contracting, Taxation, among others.

Thursday, August 27, 2015

Public Body's Bank Account Numbers Not Exempt from FOIA (!)

Thursday, August 27, 2015 Julie Tappendorf

As we've reported before on this blog, some of the more "interesting" opinions from the Public Access Counselor have come in the form of advisory, or non-binding opinions. Unfortunately, there is no easy way to view these opinions, since the PAC only publishes binding opinions on its website, and binding opinions are few and far between. A reader sent a copy of an advisory opinion that is worth reporting on as I suspect many public bodies will be surprised by the outcome.

The Village of North Henderson received multiple FOIA requests for copies of the Village's bank statements. The Village released the bank statements as requested, but redacted the account numbers from the statements. The requesters filed a request for review with the PAC, claiming that the Village violated FOIA by (1) not citing an exemption for the redactions and (2) redacting bank account numbers without a proper justification. 2015 PAC 33825; 33837; 33838 (consol.)

The PAC agreed with the requesters on both points. I don't disagree with the PAC's ruling on the first argument - the failure by the Village to identify any exemption or explain its rationale for redacting the account numbers is a violation because FOIA does require the public body to identify a specific exemption and provide an explanation for why that exemption applies.

However, the PAC's ruling that the public body was not justified in redacting bank account numbers is surprising, to say the least. The PAC concluded that only personal bank account information is protected under the "private information" exemption of 7(1)(b). Consequently, the public body could not rely on that exemption.

In my opinion, the PAC took too narrow of an interpretation of FOIA. There is no question that a public body's finances (i.e., how much money a public body holds in a particular account, how it spends that money, etc) is important public information. But why does an individual have the right or need to know the bank account numbers of a public body, particularly in this day and age? The protection of public funds should be just as important as the protection of private funds. This opinion makes no sense, and the harm it could create certainly seems to outweigh any public benefit (if there is any) in the release of account numbers.

Post Authored by Julie Tappendorf

Freedom of Information

Wednesday, August 26, 2015

School District Not Liable for Bullying

Wednesday, August 26, 2015 Julie Tappendorf

Is a school liable for the bullying activities of students where there is no evidence that school employees instigated, created, or increased the bullying experienced by a student? The Seventh Circuit Court of Appeals said no in a recent case D.S. v. East Porter County Sch. Corp, (7th Cir. August 24, 2015).

D.S. was a middle school student who claimed that she was the victim of bullying by fellow students from third through seventh grades. She alleges that students threw basketballs at her head, wrote "I hope you die" on her school planner, and called her fat. She also claims that her gym teacher forced her to participate in gym class, and her basketball coaches told her she wasn't good at basketball. D.S. parents confronted the alleged bullies, and were banned from school property for one year. D.S. decided not to stay at the school, and tried to enroll in a neighboring district, but was denied enrollment. Shortly thereafter, D.S. sued the East Porter school district and the neighboring school district under the Civil Rights Act, claiming that D.S. constitutional rights to due process and equal protection had been violated. Specifically, D.S. claimed that the district created or substantially contributed to the creation of a danger by not protecting D.S. from her fellow students.

The Seventh Circuit agreed with the district court that D.S. did not show that her teachers and coaches participated in the bullying incidents and, therefore, were not liable to D.S. The court first noted that school officials do not have an affirmative duty to protect students, and second that inaction of school officials does not rise to the level of a "state-created danger" required to prove D.S.' case against the school district.

The Seventh Circuit also agreed with the district court that D.S. failed to prove her equal protection claims against the neighboring school district because she did not establish that she was intentionally treated differently from others when the district refused to allow her to enroll.

Post Authored by Julie Tappendorf

Constitutional Issues

Tuesday, August 25, 2015

New Law Changes the Game for Ordinance Enforcement

Tuesday, August 25, 2015 Julie Tappendorf

Governor Rauner recently signed legislation that could change the way Illinois cities and villages enforce local ordinances. In the past, non-home rule municipalities had to file an action in circuit court to enforce an administrative adjudication order. As a result, many non-home rule cities and villages have not locally adjudicated their ordinances because they still needed to go to circuit court to enforce the hearing officer’s orders. Other non-home rule units have sometimes decided not to prosecute minor ordinance and property maintenance violations because of the costs associated with going to circuit court.

With the adoption of Public Act 99-293, which is effective immediately, municipalities should consider creating, or increasing their use of, a local system of administrative adjudication to enforce their ordinances. As we previously reported, this law provides:

an administrative adjudication decision is enforceable in the same manner as a court order or judgment;
any expense that the municipality incurs in enforcing an administrative adjudication decision (including attorney’s fees, court costs, property demolition costs) can be collected against the defendant after the costs are fixed by the hearing officer or court; and
the recording of the judgment will also be a lien against the real estate or personal estate, or both, of the defendant.

With a system of administrative adjudication, non-home rule municipalities can now efficiently prosecute ordinance violations, and all municipalities can recover costs associated with enforcing the judgment. While there are some costs associated with establishing and administering a system of administrative adjudication, these costs can be shared between municipalities by intergovernmental agreement, and will reduce the costs associated with repeated trips to circuit court. Home rule and non-home rule municipalities alike should consult their attorneys to develop a new ordinance enforcement strategy based on this significant new law.

Post authored by Daniel J. Bolin and Steven D. Mahrt

Land Use and Environmental

Monday, August 24, 2015

City Council Meeting Videos not Entitled to Copyright Protection

Monday, August 24, 2015 Julie Tappendorf

Many cities and villages videotape their council/board meetings and then post them on their website or YouTube or other video sharing site so that residents and others can watch the exciting happenings from the comfort of their own computer or device. The City of Inglewood, CA is a community that regularly video records its city council meetings. Those video recordings were recently the subject of a copyright infringement case in federal court after a long-time critic of the City "transformed" the videos and posted them on YouTube.

The City sued Joseph Teixeira after it learned that Mr. Teixeira had copied the city council meeting recordings and then used excerpts from the recordings with his own commentary and posted the modified recordings on YouTube. According to the complaint filed by the City, Mr. Teixeira operates a "watchdog" website where he criticizes the Inglewood Mayor and Council. The City claims that the Cityholds a interest in the video recordings it makes of open public meetings of the Inglewood City Council, and that Teixeira violated the City’s copyright by using portions of these videos in making his own videos that criticize the City and its elected officials.

The court rejected the City's argument, however, based on both state and federal law. First, the court stated that California law contains a presumption that City records are publicly available, especially records that relate to public meetings. Second, the court said that California court cases clearly state that a public entity may not claim copyright protection for a work it has created even if it falls within the scope of federal copyright protection.

The court further held that even if the copyright protections did apply, Teixeira's use of the tapes fell under the fair use doctrine because the modified videos use brief portions of the larger works in order to comment on, and criticize the political activities of the City Council and its members. This use was in furtherance of exercising his First Amendment rights, in doing so, substantially transforms the purpose and content of the city council videos. The court concludes as follows:

He is engaged in core First Amendment speech commenting on political affairs and matters of public concern. To do so, he has taken carefully selected and short portions of significantly longer works, and embellished them with commentary and political criticism through music, his voice, and written subtitles. Even if California law allowed the City to assert a copyright claim, Teixeira’s activities plainly fall within the protections of fair use.

Post Authored by Julie Tappendorf

Constitutional Issues / Social Media

Wednesday, August 19, 2015

Local Weapons Ban Survives Gun Rights Organization’s Preemption Challenge

Wednesday, August 19, 2015 Julie Tappendorf

Preemption is a common feature in state firearms laws, establishing that state law controls over local regulations, and leaving local governments to wonder what authority remains to adopt local policies. Recently, a Wisconsin court upheld a rule adopted by the City of Madison’s Transit and Parking Commission, referred to as the “bus rule,” banning weapons from city buses. Wisconsin Carry, Inc. v. City of Madison, No. 2015AP146, (Wis. Ct. App. Aug. 6, 2015). Wisconsin Carry Inc., a gun rights organization, had challenged the rule, arguing that the bus rule is preempted by a Wisconsin statute, § 66.0409:

...no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. WIS. STAT. § 66.0409(2).

The statute defines “political subdivision” as a city, village, town or county. WIS. STAT. § 66.0409(1)(b).

The City argued that the statute did not preempt the bus rule because the Transit and Parking Commission does not qualify as a “political subdivision,” and the rule is neither an “ordinance” nor a “resolution.” Both the circuit court and the appellate court agreed, with the appellate court finding that a municipal agency rule is not an “ordinance” or “resolution” under the plain language of the preemption statute.

In Illinois, concealed carry licensees are already prohibited from carrying firearms on publicly-funded buses and trains (430 ILCS 66/65(8)), and Illinois’ preemption statutes would not allow local governments to adopt contrary regulations. (430 ILCS 65/13.1(b) (preempting “regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and ammunition” by FOID card holders); 430 ILCS 66/90 (preempting “regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns” by concealed carry licensees)).

The Wisconsin Carry decision is consistent with decisions in other states where local policies survived preemption challenges under state firearms laws. (Cherry v. Municipality of Metropolitan Seattle, 116 Wash.2d 794, 802-03 (1991)(“State Legislature’s explicit intention to preempt the field of firearms ‘laws and ordinances’ . . . [is not] preemptive of the authority of a municipal employer to regulate or prohibit a municipal employee's possession of firearms while on the job or in the workplace.”); Doe v. Medford Sch. Dist. 549C, 221 P.3d 787, 799 (App. Ct. 2009)(“school district’s internal employment policy does not represent the sort of exercise of the ‘authority to regulate’ firearms that the statute preempts.”).

The Wisconsin Carry decision should also provide some support for Illinois local governments seeking develop employee work rules and other local policies outside the scope of the preemption in Illinois’ statutes. Local governments should consult their attorneys to adopt appropriate personnel policies addressing weapons and concealed carry in the workplace, if they have not already.

Unfortunately, the support offered by the Wisconsin Carry may not last long, because the court left the door open to a challenge to the ordinance that gave the Transit and Parking Commission the authority to adopt the bus rule, and a challenge arguing multiple state statutes, collectively, preempt the Commission’s action.

Post authored by Daniel J. Bolin and Kathleen O’Grady

Constitutional Issues

Tuesday, August 18, 2015

PAC Issues 5th Opinion Finding OMA Violation

Tuesday, August 18, 2015 Julie Tappendorf

The PAC recently issued its 5th binding opinion for 2015 finding a public body in violation of the Open Meetings Act in PAC Op. 15-005. I was starting to wonder if the PAC was only going to issue advisory opinions this year. As I've discussed in the past, the dearth of binding opinions is a problem for public bodies because the PAC only posts its binding opinions on its website, so it's difficult for public bodies and those who advise them to get a sense of how the PAC interprets and applies the OMA and FOIA when nearly all of its opinions are advisory and not readily available for public view.

In any event (stepping off my soapbox), in PAC Op. 15-005, the PAC determined that the Village of Blue Mound violated OMA when it discussed a police services contract in closed session and voted to approve that contract in open session without the item being listed on the agenda.

Although the Village defended its actions by stating that it went into closed session for the purpose of discussing "personnel" since the contract would affect the employment of the Chief of Police, the PAC rejected the Village's argument. The PAC noted that the "personnel" exemption applies only to discussions about specific employees. Although the Board did discuss the termination of the Police Chief as a result of the contract, the bulk of the Board's discussions centered on the terms of the contract, not a specific employee.

The PAC also noted that the Board voted to approve the police services contract after coming back into open session even though the agenda did not include any item relating to the police services contract. As a result, the PAC stated that the Board violated section 2.02(c) of the OMA which requires the agenda to "set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting." Putting aside the fact that the police services contract is neither an ordinance nor a resolution so 2.02(c) should not apply, the Illinois appellate court in Rice v. Adams did make it clear that agendas must provide some specificity on meeting agendas so the public is on notice of what will be voted on at a meeting. The Board's agenda did not do that where it included nothing about the contract.

Post Authored by Julie Tappendorf

Monday, August 17, 2015

Blight Reduction Program Grants Available

Monday, August 17, 2015 Julie Tappendorf

The Illinois Housing Development Authority (IHDA) is accepting applications from local governments for grants under its Blight Reduction Program (BRP), which was created last year to decrease preventable foreclosures and stabilize neighborhoods. Applications are available now, and due on September 25, 2015. Local governments interested in applying for a grant may want to participate in a webinar that will offer technical assistance on the application scheduled for August 20, 2015.

You can find out more and access the application on IHDA's website here.

Post Authored by Julie Tappendorf

Land Use and Environmental

Friday, August 14, 2015

Illinois Body Camera Bill Becomes Law

Friday, August 14, 2015 Julie Tappendorf

We previously posted about SB 1304, the bill that would establish the "Law Enforcement Officer-Work Body Camera Act." That bill passed both Illinois houses, and went to the Illinois Governor for signature. Earlier this week, Governor Rauner signed that bill into law becoming P.A. 99-0352. Portions of the bill become effective immediately, and others will become effective January 1, 2016.

We will be providing additional information about the new law to our clients after we have had an opportunity to analyze the various regulations, restrictions, and requirements in the new law.

In the interim, I've reprinted below our summary of some of the new regulations from our previous post on June 1st.

The bill does not mandate that police departments require their officers to wear body cameras, but it does establish certain guidelines for their use and requires local police departments to adopt policies consistent with those statutory guidelines. A few of these guidelines are summarized below:

1. The cameras must be capable of recording at least the 30 seconds prior to camera activation.

2. The camera must be capable of recording for at least 10 hours.

3. The camera must be turned on at all times when the officer is in uniform and is responding to calls or engaged in any law enforcement-related encounter or activity that occurs while the officer is on-duty. This requirement contains a number of exceptions to protect witness confidentiality, etc.

4. The camera must be turned off when the officer is engaged in community caretaking functions.

5. The officer must notify a person of the recording if that person has a reasonable expectation of privacy.

6. Access to recordings is restricted, although they might be subject to release under FOIA in limited circumstances.

7. Recordings must be retained for 90 days.

8. Recordings cannot be used in officer disciplinary proceedings except in certain limited circumstances.

Post Authored by Julie Tappendorf

Thursday, August 13, 2015

Court Considers Library Annexation Dispute

Thursday, August 13, 2015 Julie Tappendorf

Two libraries got into a dispute regarding the annexation of land located between the two district boundaries. Both library districts took action to annex portions of the land, and then filed suit against the other to have the court determine which district's annexation was valid. The circuit court ruled that the Geneva library board's annexation of a 500' wide, 4000' long strip of property between the two district boundaries was an invalid "strip" annexation and was legal "gimmickry" or a "sham" because it was intended to block the Batavia library from future annexations. The circuit court also found Batavia's annexation invalid because the initial ordinance contained an incorrect legal description and a later attempt to "correct" it was impermissible. Both libraries appealed, and the appellate court issued its ruling last week in People ex rel Geneva Public Library District v. Batavia Public Library District, 2015 IL App (2d) 100674-U.

First, the appellate court rejected Batavia's argument that Geneva's annexation violated state statute because it was a sham, strip annexation and Geneva's purpose for annexing the land was improper. The appellate court held that the library district's reason, purpose, or motivation for annexing land is not relevant, nor can it be the basis for an annexation challenge. The court acknowledged that some cases involving municipal annexations had looked to the municipal intent, but distinguished those cases because the municipal annexation statute differs from the library annexation statute.

The appellate court also rejected Batavia's argument that the annexation was an invalid strip annexation. The annexed land was 500 feet in depth and approximately 4,000 feet in length. The court noted that 250 foot wide "strip annexations" had been upheld in previous cases, and this particular annexation involved land twice as deep.

Third, the court noted that Geneva had statutory authority to annex the land as it was contiguous to the library district, and the library had followed the statutory procedures for annexing the land.

As a result, the appellate court reversed the circuit court's ruling that Geneva's annexation was improper.

The court next addressed Batavia's appeal of the circuit court's ruling that its own annexation was invalid. While acknowledging that its first annexation ordinance contained an inaccurate legal description, it argued that the library director corrected the description by removing 100 acres from the ordinance and re-recorded the ordinance, curing the defect. The court held that the library director had no authority to modify a previously approved ordinance without the board of trustees authorizing or approving the modification. The appellate court agreed, finding that the correction was neither minimal or ministerial, and the director had no authority to change an ordinance enacted by the board.

Thus, the appellate court affirmed the circuit court's ruling that Batavia's annexation was improper.

The appellate court then remanded the case back to the circuit court, and noted that the parties still had an opportunity to make proper challenges to the ordinances.

Post Authored by Julie Tappendorf

Land Use and Environmental

Wednesday, August 12, 2015

Appeals Court Upholds City's Parkway Mowing Ordinance

Wednesday, August 12, 2015 Julie Tappendorf

Most municipalities have "weed" ordinances on the books that require homeowners to maintain their lawns in a certain condition, including requiring mowing. Many of these ordinances apply not only to the private lawn, but also to the parkway area between the sidewalk and street, even if that parkway area is publicly controlled by the municipality (through an easement or other instrument). This type of ordinance became the subject of a lawsuit recently decided by the Sixth Circuit Court of Appeals involving the City of Howell, Michigan. Shoemaker v. City of Howell (6th Cir. July 29, 2015)

The City of Howell requires homeowners to keep grass and vegetation to a height no greater than 8 inches. The ordinance included the "curb strip" in front of the homes on which the City held an easement. After a homeowner refused to mow the curb strip in front of his house, the City hired a contractor to mow the strip and then cited the homeowner for an ordinance violation. The homeowner defended the citation by claiming that the ordinance violated his due process rights because he didn't get a hearing and his fundamental right not to be forced to maintain the curb strip. The district court ruled in favor of the homeowner, but on appeal, the Sixth Circuit Court of Appeals found in favor of the City.

The Sixth Circuit Court of Appeals first noted that the curb strip was owned by the homeowner, and the City's interest was through a right of way for public convenience. As a result, there was no fundamental right at state because of this shared interest in the property. The court also found the property interest in this case to be relatively minor (small fine and contractor costs for mowing), and any requirement that the City provide "more" process to the owner (hearing, etc) to be costly and more burdensome than necessary, given the minimal risk of a deprivation of due process to the owners.

The appeals court also acknowledged that the City had notified the homeowner on numerous occasions of the ordinance violation, including 4 door hanger notices, 3 letters, a conversation with the homeowner's daughter, and a phone call with the owner. Those notices provided sufficient due process to the owner of the violation. The court did, however, note that the notices were "not perfect" because they did not state the amount of the fine and the consequences for failing to pay the fine - requirements of the City's own ordinance. Nevertheless, the appeals court found that the process was sufficient to meet due process requirements, stating as follows:

the Constitution does not require strict adherence to the city's ordinances. What the Constitution does demand - that the notice as given be reasonably calculated to alert Shoemaker of the charges against him and any avenues available for challenging those charges - was accomplished by the notices distributed by the city.

This case is a good one for municipalities, as it upholds a municipality's right to enforce its "weed" ordinances on parkways or "strip curbs" even if that property is publicly controlled. It also provides guidance to municipalities on the importance of providing adequate notice to the owners prior to taking any enforcement actions, although that notice need not be "perfect" in order to satisfy due process.

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Tuesday, August 11, 2015

7th Circuit Applies Reed v. Gilbert to Panhandling Ordinance

Tuesday, August 11, 2015 Julie Tappendorf

We previously reported on a 7th Circuit Court of Appeals case upholding Springfield's anti-panhandling ordinance here. You may recall that the City of Springfield, Illinois had an ordinance that prohibits panhandling in its downtown historic district. The ordinance defines panhandling as an oral request for an immediate donation of money. Individuals who were cited under this ordinance filed suit against the City, claiming that the ordinance violated their First Amendment rights. Last fall, the 7th Circuit ruled in favor of the City, finding the ordinance content-neutral and constitutional. Norton v. Springfield (7th Cir. Sept. 25, 2014).

The plaintiffs filed a motion for a rehearing, but the 7th Circuit deferred ruling on that motion until after the U.S. Supreme Court decided Reed v. Gilbert (the sign case). Following the Supreme Court's decision in Reed striking down Gilbert's sign code as content-based discrimination, the 7th Circuit granted a rehearing in the panhandling case to apply the analysis from Reed v. Gilbert regarding content-based discrimination. Norton v. Springfield (7th Cir. August 7, 2015).

The 7th Circuit first noted that the U.S. Supreme Court changed the way courts are to look at First Amendment discrimination when it wrote that "regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Because Springfield's panhandling ordinance regulates particular topics (oral requests for the donation of money), the 7th Circuit found that Springfield's panhandling ordinance is a content-based regulation under the new test adopted by the Supreme Court in Reed. The 7th Circuit noted that Reed "effectively abolishes any distinction between content regulation and subject-matter regulation, requiring the government to provide a compelling reason for why it regulates speech." Because Springfield did not provide such a justification, the panhandling ordinance is unconstitutional.

So, what does this mean for local governments? We had previously recommended that local governments review their existing sign codes to see whether they contain any of the content-based regulations struck down by the U.S. Supreme Court in Reed. Now, based on the 7th Circuit's ruling in Norton (and probably many other cases to follow), it seems as if Reed will have a much broader impact on government regulation than just sign codes. As the concurring opinion notes in Norton, Reed's content-based analysis could apply to a variety of local government ordinances, including regulations pertaining to religion or abortion, as well as any other activity that might implicate the First Amendment (adult businesses, solicitation). As a result, local governments need to be prepared to justify any regulation that implicates speech. That may be very difficult, however, as the 7th Circuit notes that few regulations will survive the strict scrutiny now required by the Supreme Court.

Post Authored by Julie Tappendorf

Constitutional Issues

Monday, August 10, 2015

Social Media Records Retention Guidance for Local Governments

Monday, August 10, 2015 Julie Tappendorf

From Strategically Social: Social Media Records Retention Guidance for Local Governments

Is a social media post a public record that must be retained under state of Illinois record retention laws (i.e., Local Records Act or State Records Act)? The Illinois Secretary of State has answered that question with a "it depends" in a 2015 publication called "Government Records Law and Social Media: Guidance for Illinois Government Agencies."

The SOS first acknowledges that content on social media sites is more difficult for a government agency to control because these sites are (1) controlled by non-contracted third party entities and (2) are not subject to regulations that cover government agencies. As a result, the SOS cautions, these sites offer no guarantee that a government can control or capture everything that has been posted.

For the most part, the guidance offered by the SOS is consistent with the practice of most government bodies, with the exception of #5 regarding FOIA requests submitted via social media sites.

Here's a summary of the 5 guidelines in the SOS' publication:

1. Are social media posts public records?

Social media posts are public records if:

(a) the posts are made on an official public agency account or on a private account that is being used to distribute information for that agency to the public. Content posted on private accounts of public employees not used as part of their jobs is not a public record.

(b) the content posted is unique. So, if the same content is transmitted by a press release, newsletter, on the government's website, or some other method, then the government can retain the "traditional" and not the social media version.

2. How long do I have to retain a social media post that qualifies as a public record?

Social media content that qualifies as a public record will have different retention requirements, depending on the nature of the post because records retention is based on the content of the record, not its format. For example, a social media post that includes responses should be treated like correspondence. The dissemination of information, on the other hand, is treated like press releases, meeting notices, and other informational notifications.

3. Do comments from the public have to be retained?

Not necessarily, unless the comments trigger some action by the agency. So, if a resident posts a complaint about the government, and there is no response to that complaint, then it is not a public record. On the other hand, if a resident posts a complaint, and the government responds (either directly to the post or by taking some action to address the complaint), then the post is a public record.

The SOS also advises that governments do not have to maintain inappropriate comments or inflammatory language and can moderate their social media pages. However, governments should be careful in moderating posts so as not to implicate the First Amendment. Having in place a social media comment policy that informs members of the public of the type of posts and comments that will not be allowed is important.

4. How do I capture content from our social media accounts?

Most of the social media sites do not allow you to download activity logs, so governments need to consider alternative methods of retaining that content that qualifies as a public record. The SOS suggests capturing screenshots, or composing messages in local software, or using third party software that captures social media content automatically.

The SOS discourages governments from using private messaging services through these social media sites because they are difficult to retain.

5. Do we have to respond to FOIA requests submitted through social media.

The SOS says yes, taking a broad interpretation of section 3 of FOIA that states that "[w]ritten requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body."

This advice seems problematic for a number of reasons. First, if someone posts a comment on a government's Facebook page requesting a particular document, that post may or may not show up in the government's timeline due to Facebook's "formula" for publishing posts in the timeline. Second, it is not always the case that the FOIA officer is also the person administering and monitoring the government's social media sites. Third, the SOS is not the state agency charged with enforcing the Freedom of Information Act - that is the job of the Public Access Counselor of the Attorney General's office and the courts. As we have recommended in the past, governments should adopt a Freedom of Information Act policy that clearly states how FOIA requests should be filed with the government.

Friday, August 7, 2015

IML Annual Conference in September

Friday, August 07, 2015 Julie Tappendorf

The Illinois Municipal League Conference is just around the corner, and you don't want to miss all of the great sessions that Ancel Glink attorneys will be participating in at this year's conference. You can learn more about the conference, and register on the IML's conference website page here.

Below is a summary of Ancel Glink's sessions:

Thursday, September 17, 2015

Attorneys Session, Moderator: Stewart Diamond (Ancel Glink)

1:00 - 1:45 pm
Attorneys - Is it a Bird? Is it a Plane? Municipal Regulation and Use of Drones
Speakers: Keri-Lyn Krafthefer and Derke Price (Ancel Glink)

2:45 - 3:45 pm and 4:00 - 5:00 pm
United We Stand/Divided We Fall: How to Govern With Civility and Respect
Speakers: Stewart Diamond, Rob Bush, Keri-Lyn Krafthefer, and Derke Price, and Julie Tappendorf (Ancel Glink)

Friday, September 18, 2015

1:00 - 2:00 pm
Using Parliamentary Procedures
Speakers: Stewart Diamond & Julie Tappendorf (Ancel Glink)

Saturday, September 19, 2015

10:30 - 11:30 am
Legislative Update; Clerk Community - What's Happening; Hot Topics
Speakers: Stewart Diamond, Keri-Lyn Krafthefer, and Adam Lasker (Ancel Glink)

10:30 - 11:30 am
Police Use of Deadline Force
Speakers: Ellen Emery (Ancel Glink) & Charles Gruber

We hope to see you at the conference!

Thursday, August 6, 2015

Youth Concussion Safety Act Affects Park and School Districts

Thursday, August 06, 2015 Julie Tappendorf

The Illinois General Assembly recently enacted Public Act 99-0245, to create the Youth Sports Concussion Safety Act, and to amend the Park District Code and the School Code. The amendment to the Park District Code states as follows:

Section 8-24(b)
Each park district is subject to and shall comply with the requirements of the Youth Sports Concussion Safety Act if the park district is directly responsible for organizing and providing a sponsored youth sports activity as a youth sports league by registering the players and selecting the coaches, as those terms are defined in the Youth Sports Concussion Safety Act.

Under this new law, "sponsored youth sports activity" is any athletic activity, including practices and competitions for players under the direction of a coach, athletic director, or band leader of a youth sports league, including, but not limited to baseball, basketball, cheerleading, cross country track, fencing, field hockey, football, golf, gymnastics, ice hockey, lacrosse, marching band, rugby, soccer, skating, softball, swimming and diving, tennis, track (indoor and outdoor), ultimate Frisbee, volleyball, water polo, wrestling, and any other sport offered by a youth sports league. The law's provisions apply to sponsored youth sports activities beginning or continuing after January 1, 2016.

Section 15 of the Youth Sports Concussion Safety Act mirrors the existing language in Section 8-24(b) of the Park District Code, which "authorizes and encourages" park districts to make available to residents and users of youth athletic programs educational materials on the nature and risk of concussion and head injuries, including the advisability of removal of youth athletes who exhibit signs of concussion from a practice or game. Section 15 does not establish any new duties for park districts who sponsor youth sports activities and youth sports leagues.

Section 80 of the Youth Sports Concussion Safety Act amends the School Code and creates requirements for school district to establish a concussion oversight team; prohibits students from participating in interscholastic athletic activities until the student's parent or guardian acknowledges receiving written material explaining concussion prevention, symptoms, treatment, oversight, and establishes guidelines for safely resuming participation following a concussion; and establishes a detailed list of procedures and protocols that must be followed by school districts. Section 80 amends only the School Code and is not applicable to park districts.

Park districts should continue their efforts to provide educational materials to parents and guardians of youth sports participants, as well as youth sports coaches and officials. Although Public Act 00-0245 does not create a mandate that park districts establish protocols and procedures for coaches and officials to follow in preventing and recognizing head injuries and procedures for the safe removal and return to competition of participants who have suffered head injuries, it might be advisable nonetheless to establish such policies.

Wednesday, August 5, 2015

Public Body Did Not Violate OMA in Enforcing Public Comment Rules

Wednesday, August 05, 2015 Julie Tappendorf

Still very little activity out of the Attorney General's Public Access Counselor (PAC) office, at least in the way of binding opinions. Today's opinion is an advisory opinion where the PAC concluded that a public body did not violate the Open Meetings Act when a school district board did not allow a member of the public to comment on a specific topic at a meeting and removed the individual from the meeting. 2015 PAC 35101.

On May 5, 2015, the PAC received a "request for review" alleging that a school district board violated the OMA when it refused to allow her to address the board a second time after she had spoke during the public comment period of the meeting. The school district responded that it had established written rules for public comment that limited the time for individual comment to 3 minutes, and required that public comment take place during the designated public comment period on the agenda. The district's rules also contained reasonable rules to govern decorum during meetings. The PAC reviewed the district's rules, and concluded that the district did provide an opportunity for public comment as required by section 2.06(g) of OMA. The PAC also noted that her removal from the meeting was "necessary to maintain order and decorum at the meeting" because she had "become increasingly uncivil in her manner of speech when addressing the Board, and refused to cease addressing the Board, or take her seat, after being asked to do so by the Board President."

This opinion is a good reminder to public bodies to make sure they have established written rules for public comment at meetings - the fact that the district had rules in place for public comment was an important part of the PAC's analysis and conclusion that the district did not violate the OMA in enforcing its previously established rules.

Post Authored by Julie Tappendorf

Disclaimer: Ancel Glink represented the public body in this opinion.

Tuesday, August 4, 2015

Chicago Considers Drone Ordinance

Tuesday, August 04, 2015 Julie Tappendorf

Concerns about the use of drones, particularly in connection with personal privacy, have been the subject of many recent news stories. Local governments have begun discussing how they might regulate drones through their land use and registration/licensing authority. Recently, the Chicago City Council introduced an ordinance that would license and regulate drones.

The proposed ordinance includes, among other provisions, the following:

establishes no-drone zones within 5 miles of the city's major airports, schools, hospitals, places of worship, and open-air stadiums;
regulates the hours of operation for drones, prohibiting them from 8 pm to 8 am;
requires that the operator of the drone be within sight of the drone;
prohibits the use of drones for surveillance, unless authorized by law;
prohibits operation while under the influence of alcohol or drugs;
prohibits arming drones with weapons; and
requires the operator to register the drone and provide proof of insurance.

The City Council has not acted on the drone ordinance yet. You can read the ordinance here.

Land Use and Environmental

Monday, August 3, 2015

State Budget Battle Affects Local Revenues

Monday, August 03, 2015 Julie Tappendorf

As the state budget battle continues, Illinois local governments are understandably concerned about how this battle will affect their own revenues. One of the first threats to local government revenues was a state plan to cut in half the local government share of the state income tax. That hasn't happened yet, but two new threats emerged recently when the state threatened to withhold motor fuel tax and video gaming revenue from local governments.

According to recent news stories, in June alone, Illinois local governments collected $3 million in video gaming revenues. $534 million in motor fuel tax revenue went to Illinois local governments in 2014. That's a lot of money for Illinois local governments, many of which have already trimmed local budgets over the past few years to address declining sales tax and other revenues.

The Illinois Municipal League has been working with legislators to try to come up with a legislative solution that would protect local revenues.

Post Authored by Julie Tappendorf

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