December 2015 ~ Municipal Minute

Wednesday, December 30, 2015

City Council's 3-2 Approval of Tax Levy Validated by Appellate Court

Wednesday, December 30, 2015 Julie Tappendorf

In June, we posted about a trial court decision that invalidated the City of Crystal Lake's tax levy ordinance. The trial court had ruled that the 3-2 vote of the City Council to approve the tax levy was insufficient because state statute requires four affirmative votes to pass an ordinance. As a result of the invalidation of the tax levy, the court ordered the City to refund the City portion of the property taxes due and paid in 2014 to the taxpayers. Taxpayers Get Refund Because of 3-2 Vote on Tax Levy Ordinance.

The City appealed, and last week the appellate court reversed the trial court, holding that home rule voting procedures prevailed over the general voting provisions set forth in state statute. WKS Crystal Lake v. LeFew, 2015 IL App(2d) 150544.

The tax objectors had argued that 65 ILCS 5/3.1-40-40 required the City Council to vote by a “concurrence of a majority of all members then holding office on the city council” to approve the tax levy ordinance. The City countered that the City had adopted Robert’s Rules of Order, which only requires an affirmative majority of those voting to pass a measure. Because the City is home rule, the appellate court found that the City's local voting requirement prevailed over the requirements of state statute.

Post Authored by Julie Tappendorf

Tuesday, December 29, 2015

Physical Fitness Test Not an "Act of Duty" for Line of Duty Pension

Tuesday, December 29, 2015 Julie Tappendorf

After a police officer was injured participating in a physical fitness test, he applied for a "line of duty" disability pension. The officer had been injured in the act of bench pressing 200 pounds. The Sugar Grove Police Pension Board held a hearing, and at the conclusion voted to deny the line of duty pension, finding that the injury did not occur in the line of duty under the Pension Code.

The decision of the Pension Board hinged on whether the physical fitness test was the "performance of an act of duty" under the Pension Code. The Board held that it was not because the bench-press test did not involve “special risk, not ordinarily assumed by a citizen in the ordinary walks of life." As a result, the Board found that the test was not an act of duty that would qualify the officer for a line of duty pension.

On appeal, an appellate court agreed with the Pension Board that the officer's injury did not qualify him for a line of duty pension, concluding as follows:

The definition of “act of duty” is not strictly limited to activities involving the protection of public safety (id.), it is not so broad as to embrace physical-fitness activities in which individuals in ordinary walks of life participate.

Swoboda v. Board of Trustees of Sugar Grove Police Pension Board, 2015 IL App (2d) 150265

Monday, December 28, 2015

Court Rejects Occupy Chicago Protesters' Challenge to Park Hours Ordinance

Monday, December 28, 2015 Julie Tappendorf

A provision of the Chicago Park District Code prohibits people from being in Chicago parks from 11 pm to 6 am. Several Defendants who were participating in Occupy Chicago were arrested after numerous warnings to vacate Grant Park during the banned hours. The charges were dismissed by the trial court, who found the ordinance unconstitutional as a violation of equal protection and right to free assembly. The City of Chicago appealed, and the appellate court recently reversed the trial court's decision, finding the ordinance constitutional. City of Chicago v. Alexander, 2015 IL App (1st) 122858-B.

First, the appellate court addressed the protesters claims that the ordinance was a violation of their First Amendment rights. Although the court acknowledged that the protesters were exercising their First Amendment rights to free expression and speech, it held that the City had the right to enact regulations on use of the parks. In this case, the park hours of operation regulation was content-neutral, applied to all City parks, and was intended to preserve the parks cleanliness and safety, a legitimate concern of the City. The court also rejected the protesters' argument that the ordinance was overbroad, finding that it only prohibits the use of City parks for 7 hours and the protesters had alternative means of conducting their expressive activity (i.e., assembling on public sidewalks) adjacent to the park. The court noted that alternative modes of communication need not be the first choice of the speaker, so long as it does not totally foreclose a speaker's ability to reach an audience. In short, the court rejected the protesters' challenges to their arrest and remanded the case for further proceedings.

Post Authored by Julie Tappendorf

Constitutional Issues

Tuesday, December 22, 2015

PAC Finds Records of Task Force to be Subject to FOIA

Tuesday, December 22, 2015 Julie Tappendorf

Two PAC opinions in one week? A holiday bonus, no question.

In its 15th opinion of 2015, the PAC...wait for it....found a public body in violation of FOIA. In this opinion, a requester had filed a request with the City of Danville for various records (minutes, correspondence, notices, etc) relating to the Danville Housing Task Force. The City denied the request, on the basis that the Task Force was not a public body subject to FOIA. The requester then filed an appeal with the PAC. PAC Op. 15-015.

The City defended its denial in two ways. First, the City argued that the Task Force was not a public body subject to FOIA. Second, the City argued that because the Task Force was not a public body, its records were not "public records" under the definition of FOIA, so were not subject to FOIA.

With respect to the City's first argument, the PAC took the position that whether or not the Task Force was a public body was not relevant to the FOIA request. Instead, the PAC stated that since the FOIA was submitted to the City, it was the City that must respond to the FOIA.

The PAC also rejected the City's second argument. The PAC stated that the Task Force was organized by a City department and used City resources during business hours. Based on these two issues, the PAC held that the records "pertain to the transaction of public business of the City." As a result, they must be released under FOIA.

Based on the PAC's analysis in this case, the records of any private group that has some interaction with a public body could be subject to FOIA. For example, a Chamber of Commerce may meet at City Hall, have City Council or City staff as members, and assist with City economic development and other business development matters. Based on this opinion, the records of the Chamber (which is clearly not a City department or subsidiary body) could be subject to FOIA. That is a very broad reading of FOIA. It will be interesting to see whether the City provides the documents or appeals to the circuit court. Past appeals of similar PAC opinions have been successful, including the recent decision in Board of Education of Springfield Sch. Dist. No. 186 v. Attorney General of Illinois, 2015 IL App (4th) 140941.

Post Authored by Julie Tappendorf

Freedom of Information

Monday, December 21, 2015

Failure to Respond to FOIA is a Violation

Monday, December 21, 2015 Julie Tappendorf

No surprise that right after I publish a "summary" of the PAC's 11 binding opinions of 2015 that the PAC would issue another opinion. Also not surprising that the 12th opinion of 2015 offers little guidance to public bodies on any unique or unusual interpretation or application of FOIA or OMA that might actually help them comply with these laws.

In PAC Op. 15-012, a union organization filed a FOIA request with Chicago State University asking for all records relating to all employment positions. When CSU did not respond to the FOIA request, the union filed a request for review with the Public Access Counselor. The PAC found CSU in violation of FOIA for failing to respond to the FOIA request.

Yes, that is the extent of the entire opinion.

Post Authored by Julie Tappendorf, Ancel Glink

Freedom of Information

Friday, December 18, 2015

Indiana's Cold Beer Sale Restrictions Upheld

Friday, December 18, 2015 Julie Tappendorf

It's Friday and I'm in Las Vegas. It seems appropriate that I leave you with a case about booze. I think it pairs nicely with yesterday's video gaming case.

An association of Indiana convenience stores filed a lawsuit seeking to invalidate the state law, claiming that the law violates the Equal Protection Clause because it discriminates against certain types of stores, including grocery and convenience stores. Indiana state law allows package liquor stores to sell cold beer, but grocery and convenience stores cannot.

Indiana defended its state law by arguing that the plaintiffs’ equal-protection challenge is “doomed” because state authority to regulate how alcoholic beverages are sold is “nearly absolute” under the Twenty-first Amendment. The Seventh Circuit Court of Appeals did not go that far, finding Indiana's argument a "considerable overstatement." Nevertheless, the Court of Appeals upheld Indiana’s cold-beer statute, finding it satisfied rational-basis review. Indiana argued that the goal of its regulatory scheme is to curb underage beer consumption by limiting the sale of immediately consumable cold beer. Restricting the sale of cold beer to stores that are more rigorously regulated is rationally related to that legitimate goal. That was good enough for the 7th Circuit, which upheld Indiana's prohibition on the sale of cold beer by grocery and convenience stores. Indiana Petroleum Marketers and Convenience Stores v. Cook (7th Cir. December 14, 2015)

Cheers! (unless you are in Indiana)

Post Authored by Julie Tappendorf

Thursday, December 17, 2015

Appellate Court Upholds $1000 Video Gaming Fee

Thursday, December 17, 2015 Julie Tappendorf

Last December, we reported on a trial court decision upholding Elmwood Park's $1,000/terminal fee for video gaming licenses. Village's $1000 Video-Gaming License Fee Upheld. Last week, an appellate court decided Accell Entertainment Gaming LLC's appeal of that decision, ruling in favor of the Village and upholding the license fee.

The Village had adopted an ordinance imposing a $1,000 license fee per video gaming terminal, relying 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, claiming the fee was unconstitutional and the Village was preempted from requiring a license or license fee.

The appellate court upheld the ordinance based on Elmwood Park's home rule authority. Specifically, the court found the ordinance pertained to the Village's local government or affairs and was not preempted by state law. The court noted that the challenged ordinance "applies only to video gaming operations within the Village boundaries and it does not attempt to regulate video gaming operations outside of the Village’s boundaries." The court also determined that the license fee was not preempted by section 21 of the Riverboat Gambling Act, and also was not an impermissible occupation tax. At most, the court stated, the license fee was a tax that the Village was authorized to impose. As a result, the court upheld the trial court's dismissal of the challenge to the Village's video gaming licensing fee and ordinance. Accel Entertainment Gaming, LLC v. Village of Elmwood Park

On the same day it ruled in the Elmwood Park case, the appellate court issued a similar opinion upholding Cook County's video gaming tax of $1000 in Illinois Coin Machine Operators, et al. v. County of Cook. The analysis in both cases is nearly identical, although the first involved a home-rule municipality and the second a home-rule county.

Post Authored by Julie Tappendorf

Constitutional Issues / Finances

Wednesday, December 16, 2015

Appelate Court Reverses 2 PAC Binding Opinions

Wednesday, December 16, 2015 Julie Tappendorf

We have previously reported on two binding PAC opinions that found a Springfield School District in violation of the Open Meetings Act in its actions in terminating its superintendent in 2013. See posts here, here, and here. In a bit of good news for public bodies, the appellate court reversed the PAC yesterday in Board of Education of Springfield Sch. Dist. No. 186 v. Attorney General of Illinois, 2015 IL App (4th) 140941.

In its first binding opinion on this matter, issued in 2013, the PAC concluded that the District violated the OMA when the Board members signed the separation agreement in closed session. Specifically, the PAC ruled that the signing constituted "final action" in violation of Section 2(e) of the OMA.

In the second binding opinion, issued in 2014, the PAC concluded that the District violated the OMA when the Board did not sufficiently describe the separation agreement before it voted to approve the agreement.

The District appealed both of these binding opinions to the circuit court. In November of 2013, the circuit court found that the Board erred in concluding that signing the agreement constituted final action, finding that the final action actually occurred on March 5, 2013, when the Board voted to approve the agreement in open session. In September of 2014, the circuit court reversed the second binding opinion, finding that the PAC's opinion "significantly expands the requirements" of the OMA by requiring the public body to explain he significance of the final action to be taken.

Subsequently, the PAC appealed both circuit court rulings to the appellate court, which issued an opinion yesterday upholding the circuit court rulings. In short, the appellate court ruled against the PAC, and held that the District did not violate the OMA.

First, the appellate court agreed with the circuit court that the signing of an agreement in closed session did not constitute final action. The court held that the District's final action on the separation agreement was taken a month later, in open session, and in accordance with the OMA. Second, the appellate court held that the public was adequately informed of the action that was taken by the Board in voting to approve the separation agreement. The agreement itself was made available on the District's website in advance of the meeting and the Board President introduced the agreement at the meeting. The court found no requirement under the OMA that the Board explain the significance or impact of the proposed final action, as argued by the PAC.

This is certainly good news for public bodies that may have been concerned how these binding opinions might affect their use of consent agendas or require some form of detailed explanation of the significance or impact before voting on each agenda item. In this case, the appellate court acknowledged that the OMA requires no such explanation.

Post Authored by Julie Tappendorf

Tuesday, December 15, 2015

FAQ for the New Tow Rotation List Law

Tuesday, December 15, 2015 Julie Tappendorf

On January 1, 2016, P.A. 99-438 becomes effective. This new law establishes certain qualification requirements for towing companies used by police departments and agencies with jurisdiction over highways in the state. The law also requires a police department with jurisdiction over state highways to establish a tow rotation list.

The law has raised a couple of questions about what a local police department must do to comply with the new requirements. Below are a few FAQ's about the new law:

FAQ - New Tow Law

Does the new law require a police department to create a tow rotation list?

Yes, the law states as follows:

Each law enforcement agency whose duties include the patrol of highways in this State shall maintain a tow rotation list which shall be used by law enforcement officers authorizing the tow of a vehicle within the jurisdiction of the law enforcement agency.

Does the new law specify a minimum number of tow companies that make up a tow rotation list?

No. In fact, the law specifically states that a law enforcement agency may choose to have only one towing service on its tow rotation list.

Who makes the determination as to which tow companies make up this list?

The police chief has the authority to make the final determination as to which qualified towing services will be included on the list.

If a towing company applies to be on the list, must the police chief add the company to the list?

The chief has the discretion to make the determination as to whether a tow company is qualified and should be added to the list.

How is the list supposed to work?

Towing services are to be contacted in the order listed on the tow rotation list, at which point the towing service is placed at the end of that tow rotation list.

What if the tow company is not available?

The next listed towing service on that tow rotation list should be contacted.

Are there any exceptions to following the tow list?

Yes, the agency can deviate from the tow rotation list order in cases of emergency or where the agency determines that a particular company is not equipped to handle a specific task.

Does this law apply to all police departments and law enforcement agencies?

No, the law exempts the City of Chicago. Also, if a police department has no highways (as defined in the statute) within its jurisdiction, the law does not apply.

What if we already maintain a tow rotation list?

The police chief should review the statutory qualifications to ensure that each of the tow companies on that list are "qualified." These include compliance with insurance, licensing, and various other requirements set out in the new law.

Post Authored by Julie Tappendorf

Monday, December 14, 2015

Village Immune From Liability for Flooding to Home

Monday, December 14, 2015 Julie Tappendorf

Tort immunity laws protect municipalities and other governments from a variety of claims and liability. Section 2-201 of the Tort Immunity Act specifically provides immunity to a local government for the discretionary acts of its officials or employees in determining policy. That section was the subject of a lawsuit filed by homeowners against a village for damages relating to flooding in their home.

In 2009, homeowners filed a lawsuit against the Village of LaMoille alleging they suffered damages caused by the Village's negligent maintenance of its storm sewer and drain. The homeowners claimed their property had flooded nine times between 2007 and 2009. They alleged that the Village was on notice of the condition of its sewer and drain, but failed to investigate and repair the drain.

The Village defended against the action on various grounds. First, the Village argued it was immune from liability under the TIA because it engaged in discretionary policy decisions regarding maintenance and repair of the drain. Second, the Village argued that the homeowners could not establish that the flooding was caused by the storm sewer and drain versus extreme weather events.

On appeal, the appellate court ruled in favor of the Village and denied the homeowners claims for damages. The court first found that the Village was immune for liability for the flooding. Although the Village did have a duty to maintain its sewer and drains, state law does not maintain any particular schedule for maintenance, nor does it require a public entity to adopt a written policy. As a result, the Village had discretion to determine the need for maintenance or repair, and was not liable for the homeowners flooding damage. Clark v. Village of LaMoille, 2015 IL App (3d) 140669-U.

Post Authored by Julie Tappendorf

Friday, December 11, 2015

Ordinances Found to be a Valid Exercise of County’s Home Rule Powers

Friday, December 11, 2015 Julie Tappendorf

In Blanchard v. Berrios, the independent inspector general of Cook County filed a complaint to enforce a subpoena that the Office of the Independent Inspector General (OIIG) sent to the Cook County Assessor. The circuit court ordered the Assessor to respond to the subpoena. The Assessor then appealed to the Illinois Appellate Court, arguing that it was unconstitutional for the Cook County Board of Commissioners to enact ordinances granting the OIIG subpoena power.

In finding the ordinances to be constitutional, the Illinois Appellate Court noted that the Board’s ordinances were a valid exercise of its home rule powers and that it was valid for the county to delegate it’s subpoena power to the OIIG. The Illinois Appellate Court looked to City of Chicago v. Stubhub, 2011 IL 111127, in which the Illinois Supreme Court evaluated how to determine whether an ordinance exceeds home rule powers. In Stubhub, the Illinois Supreme Court found that a county, as a home rule unit, has all powers of a sovereign unless the General Assembly has expressly limited those powers. The court noted that the Assessor failed to identify any statutes in which the General Assembly had limited the subpoena power of home rule entities. Further, just as the state is allowed to delegate subpoena powers, so may a county.

Post Authored by Erin Baker, Ancel Glink

Constitutional Issues

Thursday, December 10, 2015

Schedule for Release of Illinois Municipal Funds

Thursday, December 10, 2015 Julie Tappendorf

In a bit of good news for Illinois municipalities and some other government bodies, Senate Bill 2039, which was enacted Monday of this week as P.A. 99-0491, provides appropriation authority for motor fuel tax (MFT) revenue, use tax revenue, casino and video gaming revenues, as well as 9-1-1 funding.

According to the Illinois Municipal League, these funds will be released to government entities within 1-2 business days of receipt of a clean payment voucher from the appropriate state agency. It is anticipated funds will be released to the following time schedule:

Payment vouchers for use tax, video gaming fees and casino fees have or will be submitted by the Department of Revenue to the Comptroller by December 11.
Payment vouchers for 9-1-1 fees are handled through the Illinois Commerce Commission (ICC) and the Governor's Office of Management and Budget. These payment vouchers will be submitted to the Comptroller by no later than December 18.
Payment vouchers for MFT funds are handled through the Department of Transportation (IDOT). July-collection vouchers have been submitted to the Comptroller as of December 8, and August-collection vouchers will be submitted by December 14. Subsequent months' payment vouchers are being processed for submission as quickly as possible, with the likelihood of a few days in between each collection month for the necessary paperwork.

Post Authored by Steve Mahrt, Ancel Glink

Buffer Zone Around Adult Entertainment Business Found Permissible

Thursday, December 10, 2015 Julie Tappendorf

The Seventh Circuit recently addressed the validity of an ordinance placing a 750-foot buffer zone around a proposed adult entertainment business and requiring a permit. In BBL Inc. v. City of Angola, plaintiffs purchased a restaurant in the City of Angola, Indiana, with the intention of converting the restaurant into an adult-entertainment venue with nude dancing. A few days after plaintiffs made the purchase, the City amended its zoning ordinances to prohibit this use of the property, imposing a 750-foot residence buffer zone requirement. Plaintiffs sued the City alleging violations of their First Amendment rights. Specifically, plaintiffs argued that the licensing and zoning amendments violated their right to expressive conduct and that a permit requirement was an impermissible prior restraint on speech.

The federal district court denied plaintiff’s motion for a preliminary injunction in an omnibus order. The district court also granted the City’s motion for judgment on the pleadings for certain parts. While the judge granted this, he failed to fully analyze the First Amendment. Plaintiffs appealed to the Seventh Circuit.

The Seventh Circuit affirmed the denial of the preliminary injunction, noting that its jurisdiction was limited to that issue. With regard to the plaintiff’s claim that the licensing and zoning amendments violated their right to expressive conduct, the Seventh Circuit noted that nude dancing is subject to intermediate scrutiny as a content-neutral regulation. The Seventh Circuit looked to whether the challenged regulations were justified without reference to the content of the regulated speech and whether the adverse secondary effects relied on by the municipality have a basis in reality. The court concluded that the plaintiffs First Amendment rights were not violated as the ordinances were designed to reduce the negative secondary effects of adult entertainment establishments. Further, several other land parcels were available where the adult entertainment business could operate. The Seventh Circuit also found the permit requirement to be moot as the requirement had been later removed in the zoning amendments.

Post Authored by Erin Baker, Ancel Glink

Constitutional Issues / Land Use and Environmental

Wednesday, December 9, 2015

PAC Review, 2015 Edition

Wednesday, December 09, 2015 Julie Tappendorf

It’s time for our annual round-up of the PAC office’s activities, at least with respect to binding opinions on FOIA and OMA complaints. Here they are…all 11 of them. That’s right – the PAC issued only 11 binding opinions in all of 2015 (as of today - we will update if there are any opinions released in the next 2 weeks)

PAC Opinion 15-001 (cooperation with PAC request for review)

In PAC Opinion 14-001, the PAC found the Illinois Department of Financial and Professional Regulation in violation of FOIA for refusing to provide records to a requester relating to a complaint against licensed engineers. The PAC first determined that the IDFPR's refusal to provide copies of the responsive records to the PAC for confidential review violated section 9.5(c) of FOIA which requires a public body to "provide copies of records requested and...otherwise fully cooperate with the Public Access Counselor." Also, the PAC rejected the IDFPR's stated exemptions for denial relating to the investigation of a licensee.

PAC Opinion 15-002 (rebate agreements)

PAC Opinion 15-002 involved Rosemont's denial of a request for records pertaining to Garth Brooks' record-breaking concert at Allstate Arena. The village provided the records but redacted the amount of the rebate based on the “trade secret” exemption and a local ordinance that allowed the village to withhold documents if the village believed the release would put village-owned entertainment venues at a competitive disadvantage. The PAC determined that the village was preempted from adopting an ordinance that would avoid disclosing records to the public and rejected the village's argument that the records amounted to "trade secrets.”

PAC Opinion 15-003 (compensation of employees in closed session)

In PAC Op. 15-003, a reporter filed a complaint with the PAC alleging that the Waubonsee Community College board of trustees violated the OMA by discussing improper topics in closed session. The PAC determined that although the board did discuss issues relating to the compensation of employees, it also discussed general budgetary matters that were not proper topics for closed session in violation of the OMA.

PAC Opinion 15-004 (employee settlement agreement)

In PAC Op. 15-004, the PAC found a public body in violation of FOIA for denying a request for a copy of an agreement that settled a lawsuit between the City and an employee. The public body denied the request, citing the personal privacy exemption and that the non-disclosure provisions in the settlement agreement prohibited release. The PAC rejected these arguments, finding that settlement agreements are public records and the non-disclosure provision in the agreement only prohibited disclosure by the former employee, not the City.

PAC Opinion 15-005 (personnel exemption closed session)

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. 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.

PAC Opinion 15-006 (doctors salary information not exempt)

In PAC Op. 15-006, a requester filed a FOIA request with Franklin Hospital for copies of the employment agreements between the hospital and five doctors. The hospital redacted doctors' salaries, incentives, and bonuses under the personal privacy and private information exemptions. The PAC held that hospital doctors are public employees, whose salary information is releasable under FOIA, and not protected by exemptions.

PAC Opinion 15-007 (personnel exemption for closed session)

In PAC Op. 15-007, the PAC found a finance committee of a county board in violation of the OMA relating to a closed session. A reporter filed a complaint arguing that the committee did not state the reason why it was going into closed session. Second, the reporter claimed that the topics discussed in closed session were not appropriate subjects. The committee responded that it discussed two matters in closed session: (1) a county employee hiring freeze and (2) the termination of an employee position. The PAC held that "a mere reference to 'personnel' does not adequately identify any exception that authorizes a public body to close part of a meeting."

PAC Opinion 15-008 (Governor’s calendar not exempt)

The PAC found the Governor's office in violation of FOIA for redacting certain information from his calendar in PAC Op. 15-008. The reporter filed a request for review with the PAC, arguing that the Governor’s office improperly redacted names of individuals identified in the calendar. The found that the calendar was prepared by the Governor's office and pertains to public business. The PAC rejected the Governor's argument that disclosing details of the Governor's calendar constitutes a security concern and that the entries constituted "predecisional deliberative material" that would be exempt under 7(1)(f).

PAC Opinion 15-009 (surveillance video of fatal accident not exempt)

In PAC Op. 15-009, the PAC found IDOT in violation of FOIA for not turning over surveillance videos of a fatal accident. The requester (an attorney for the defendant in a case involving the accident) had filed a FOIA request for the videos. IDOT denied the request, citing that it would be an invasion of personal privacy of the victim's family to release the videos, and the victim could not consent to its release. The PAC found that the victim’s family's right to privacy was outweighed by the attorney's interest in obtaining the video recording.

PAC Opinion 15-010 (attorney-client communications)

PAC Op. 15-010 deals with a reporter's request for information listing all outside counsel used by the state of Illinois for 2014 and 2015. The request was denied based on the "attorney-client communication" exemption in 7(1)(m) of FOIA. The PAC rejected the Governor's cited exemption, finding that the responsive records (which listed the law firm or attorney, hourly rate or flat rate, the agency represented, and the general subject matter of the work) did not contain any privileged communications (i.e., details regarding the nature of services provided by the attorneys, the substance of the work performed, or matters discussed between attorneys and clients) that would fall under 7(1)(m). The PAC also rejected the Governor's argument that the records were exempt as "attorney work product," holding that work product is limited to records that reveal the theories, mental impressions, or litigation plans.

PAC Opinion 15-011 (unduly burdensome)

PAC Op. 15-011 involved a June 22, 2015 request by a labor union representative for all certified payrolls for projects awarded in Christian County from June 2014 to present. The PAC first determined that IDOT failed to respond to the FOIA request within the statutory time frame so was precluded from treating the request as unduly burdensome. It also rejected the unduly burdensome argument, finding that although the review and redaction of these records was a "burden" on IDOT, it did not find that burden to be undue, in light of the public interest in a union having access to these records.

Post Authored by Julie Tappendorf

Freedom of Information / Open Meetings

Tuesday, December 8, 2015

City Assault Weapons Ban Stands, Supreme Court Declines Review

Tuesday, December 08, 2015 Julie Tappendorf

In April, the Seventh Circuit Court of Appeals upheld the Northern District of Illinois’ decision upholding the City of Highland Park’s ban on assault weapons and large capacity magazines against a Second Amendment challenge. The City resident challenging the ban, along with the Illinois State Rifle Association, appealed the Seventh Circuit’s decision. Yesterday, the U.S. Supreme Court declined to hear the appeal. That means the City's assault weapon ban stands.

Justice Thomas, joined by Justice Scalia, dissented from the decision and argued that the “categorical bans on firearms that millions of Americans commonly own for lawful purposes” deserved review under the court’s Second Amendment precedents. Justice Thomas criticized the test employed by the Seventh Circuit for evaluating the constitutionality of the bans, which asked “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,. . . . and whether law-abiding citizens retain adequate means of self-defense.” Instead, Thomas concluded that the scope of the Second Amendment guarantee only excludes “those weapons not typically possessed by law-abiding citizens for lawful purposes.” Where the Second Amendment is an individual right, and not a militia right, Thomas argued that it was “wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.” Thomas was also critical of the speculative evidence used to support the ban, including reliance on the availability of alternatives and conjecture that the ordinance might make the public feel safer.

As it stands, the Supreme Court’s decision confirms that state and local firearms regulations can be consistent with the Second Amendment. The City of Highland Park’s ban was likely successful because it was supported by empirical studies, and allowed handguns and most long guns for use in self-defense. According to Steven Elrod, the attorney representing the City of Highland Park and the author of the ordinance, “we were well aware of the teachings of Heller and McDonald, and crafted the ordinance so that was not a complete and comprehensive ban, but rather concerned only those highly dangerous and unusual weapons that are more likely found in military combat than in self-defense in one’s home.” While Justice Thomas’ dissent indicates that a segment of the Supreme Court would impose more aggressive review for local firearms regulations, “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment” as the Court contemplated in McDonald v. City of Chicago.

Although this means that Highland Park’s assault weapon ban is enforceable, that does not mean other Illinois municipalities have the right to enact similar bans. In 2013, the Illinois legislature imposed a very narrow window for adopting an assault weapon ban. That window has since passed. As a result, any assault weapons ban or regulation adopted after July 19, 2013 that is inconsistent with state law is unenforceable and invalid. This preemption provision means the state will be responsible for future assault weapons regulations in Illinois. Bills to extend or reopen this "window" have not made it out of committee in either the Illinois house or senate.

Post Authored by Daniel J. Bolin and Julie Tappendorf, Ancel Glink

Constitutional Issues

Monday, December 7, 2015

New Police Policies for 2016: Part 5 (Use of Force Policies)

Monday, December 07, 2015 Julie Tappendorf

Municipalities throughout Illinois are taking action to promote the integrity of their police departments, as directed by a package of new laws adopted by the General Assembly last summer. Many of these new laws become effective on January 1, 2016. In this 5 part series, we take a look at how local police departments can be prepared with new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more.

Part 5 of 5 in the Series - Use of Force Policies

Many local police departments have policies governing the use of force by police officers in appropriate situations. Effective January 1, 2016, it will be a crime for a police officer to “use a chokehold in the performance of his or her duties, unless deadly force is justified” under the Illinois Criminal Code. (720 ILCS 5/7-5.5(a)). Additionally, a police officer cannot “use a chokehold, or any lesser contact with the throat or neck area of another in order to prevent the destruction of evidence by ingestion.” (720 ILCS 5/7-5.5(b)). Under the new law a “chokehold” means applying any direct pressure to the throat, windpipe, or airway of another with the intent to reduce or prevent the intake of air, but does not include any holding involving contact with the neck that is not intended to reduce the intake of air. Local police departments should review and update their use of force policies in response to the new law.

Post Authored by Daniel J. Bolin, Ancel Glink

Friday, December 4, 2015

New Police Policies for 2016: Part 4 (Special Rules for Police Camera Grants)

Friday, December 04, 2015 Julie Tappendorf

Municipalities throughout Illinois are taking action to promote the integrity of their police departments, as directed by a package of new laws adopted by the General Assembly last summer. Many of these new laws become effective on January 1, 2016. In this 5 part series, we take a look at how local police departments can be prepared with new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more.

Part 4 of 5 in the Series - Special Rules for Police Camera Grants

In 2016, the Law Enforcement Camera Grant Fund will provide grants to local police departments for purchasing in-car video cameras, officer-worn body cameras, and training in their use. The Illinois Law Enforcement Training Standards Board may set eligibility requirements for grants, which will include:

The Board will consider compliance with the Uniform Crime Reporting Act in awarding grant moneys. Additional rules applicable to car camera grants or body camera grants are listed below.

Car Camera Grants

1. Cameras must be installed in the law enforcement vehicles.

2. Videotaping must provide audio of the officer when the officer is outside of the vehicle.

3. Camera access must be restricted to the supervisors of the officer in the vehicle.

4. Cameras must be turned on continuously throughout the officer's shift.

5. A copy of the videotape must be made available upon request to personnel of the law enforcement agency, the local State's Attorney, and any persons depicted in the video. Procedures for distribution of the videotape must include safeguards to protect the identities of individuals who are not a party to the requested stop.

6. The recordings must be stored for at least 2 years.

7. Annual reporting requirements, including the number of cameras received and actually installed, a description of the review process used by supervisors, details about any case where a video recording was used, and any other information relevant to the administration of the program.

Body Camera Grants

1. Compliance with the Law Enforcement Officer-Worn Body Camera Act.

2. Annual reporting requirements, including a brief overview of the department including the number of body cameras and officers using body cameras, any technical issues with the cameras, a description of the review process used by supervisors, details about any case where a recording was used, and details about any internal affairs investigation where a recording was used, and any other information relevant to the administration of the program.

Local police departments should review their policies governing the use of in-car and body cameras to maximize the opportunity for grant eligibility, and keep an eye on the Illinois Law Enforcement Training & Standard’s Board’s website as more grant information becomes available, http://www.ptb.state.il.us.

Post Authored by Daniel J. Bolin, Ancel Glink

Thursday, December 3, 2015

New Police Policies for 2016: Part 3 (FOIA and Officer-Worn Body Cameras)

Thursday, December 03, 2015 Julie Tappendorf

Municipalities throughout Illinois are taking action to promote the integrity of their police departments, as directed by a package of new laws adopted by the General Assembly last summer. Many of these new laws become effective on January 1, 2016. In this 5 part series, we take a look at how local police departments can be prepared with new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more.

Part 3 of 5 in the Series - FOIA and Officer-Worn Body Cameras

Many municipalities have adopted policies to assist FOIA officers in responding to requests for documents, and audio and video recordings. If a local police department chooses to use officer-worn body cameras, the municipality’s FOIA policy may need to be updated to manage requests for officer-worn body camera recordings. Recordings made under the Law Enforcement Officer-Worn Body Camera Act are exempt from disclosure under FOIA, except that:

Disclosure of Certain Flagged Recordings Require the Subject’s Consent

If the subject of the encounter has a reasonable expectation of privacy at the time of the recording (no expectation of privacy if subject is arrested), any recording which is flagged, due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm, shall be disclosed in accordance with the Freedom of Information Act if:

the subject of the encounter captured on the recording is a victim or witness (persons arrested are not a “witness”); and
the law enforcement agency obtains written permission of the subject or the subject's legal representative.

Flagged Recordings not Requiring the Subject’s Consent must be Disclosed, unless another FOIA Exemption Applies

Any recording which is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm shall be disclosed in accordance with the Freedom of Information Act.

Recordings must be Disclosed to the Subject, unless another FOIA Exemption Applies

Upon request, the law enforcement agency shall disclose, in accordance with the Freedom of Information Act, the recording to the subject of the encounter captured on the recording or to the subject's attorney, or the officer or his or her legal representative.

Only recordings or portions of recordings responsive to a FOIA request can be made available for inspection or reproduction, and recordings must be redacted to remove identification of any person that appears on the recording and is not the officer, a subject of the encounter, or directly involved in the encounter.

Post Authored by Daniel J. Bolin, Ancel Glink

Freedom of Information / Personnel

Wednesday, December 2, 2015

New Police Policies for 2016: Part 2 (Officer-Worn Body Camera Policies)

Wednesday, December 02, 2015 Julie Tappendorf

Municipalities throughout Illinois are taking action to promote the integrity of their police departments, as directed by a package of new laws adopted by the General Assembly last summer. Many of these new laws become effective on January 1, 2016. In this 5 part series, we take a look at how local police departments can be prepared with new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more.

Part 2 of 5 in the Series - Officer-Worn Body Camera Policies

Under the Law Enforcement Officer-Worn Body Camera Act, the Illinois Law Enforcement Training Standards Board will develop basic guidelines for the use of officer-worn body cameras, and the Board’s guidelines will be the basis for a written policy which must be adopted by each law enforcement agency using the cameras. The Act has detailed minimum requirements for the written policy governing camera specifications, camera operation and maintenance, and recording storage, maintenance, and use. The policy must also indicate the potential criminal penalties, as well as any departmental discipline, which may result from unlawful confiscation or destruction recordings made by members of the public. Law enforcement agencies using officer-worn body camera must also file an annual report with the Illinois Law Enforcement Training Standards Board.

The Board has posted model policies and report forms on its website in the past, and while they are not available as of this writing, local police departments should keep checking the Board’s website as more information becomes available, http://www.ptb.state.il.us/. Meanwhile, various law enforcement organizations are busy crafting their own model policies to assist local police departments in complying with the new law.

Post Authored by Daniel J. Bolin, Ancel Glink

Tuesday, December 1, 2015

New Police Policies for 2016: Part 1 (Officer-Involved Deaths)

Tuesday, December 01, 2015 Julie Tappendorf

Municipalities throughout Illinois are taking action to promote the integrity of their police departments, as directed by a package of new laws adopted by the General Assembly last summer. Many of these new laws become effective on January 1, 2016. In this 5 part series, we take a look at how local police departments can be prepared with new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more.

Part 1 of 5 in the Series - Officer-Involved Deaths

Local police departments usually have an informal policy about who they call, or would call, in the event of a police-related death in their community. Calling in the Illinois State Police Task Force or one of the collective community or county task forces to investigate officer-involved shootings, jail hangings, and such other incidents can be important to the involved community taking a step back from the investigation to avoid any taint of self-investigation. However, based on new legislation effective January 1, 2016, local investigations and agreements to participate in these type of task forces must meet new requirements from Springfield.

Effective January 1, 2016, the Police and Community Relations Improvement Act requires law enforcement agencies to “have a written policy regarding the investigation of officer-involved deaths that involve a law enforcement officer employed by that law enforcement agency.” These investigations must be conducted by at least two investigators, with one lead investigator certified by the Illinois Law Enforcement Training Standards Board as a “Lead Homicide Investigator,” or have certain similar training. No investigator involved in the investigation may be employed by the local law enforcement agency that employs the officer involved in the officer-involved death.

If the officer-involved death being investigated involves a motor vehicle accident, at least one investigator must certified by the Board as a “Crash Reconstruction Specialist,” or have certain similar training, and in this case the law enforcement agency may use of an investigator who is employed by that law enforcement agency.

The investigators are required to expeditiously provide a complete report to the State's Attorney of the county in which the officer-involved death occurred. If the State's Attorney, or a designated special prosecutor, determines there is no basis to prosecute the law enforcement officer involved in the officer-involved death, or if the law enforcement officer is not otherwise charged or indicted, the investigators must publicly release a report.

Law enforcement agencies are still permitted to conduct internal investigations into officer-involved deaths, if the internal investigation does not interfere with the independent investigation required under the Act. Additionally, compensation for participation in an independent investigation the independent investigation can be determined by an intergovernmental or inter-agency agreement.

Post Authored by Daniel J. Bolin and Ellen K. Emery, Ancel Glink

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