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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, July 28, 2016

Important New Law Requires Adoption of Local Expense Reimbursement Policy

We previously reported on a bill introduced this session that would establish certain obligations on local governments regarding reimbursement of local officials' expenses. That bill previously passed the Illinois Senate and House, and has now been signed by the Governor as P.A. 99-604

The Local Government Travel Expense Control Act applies to school districts, community college districts, and all units of local government except home rule units. Illinois defines "units of local government" to include counties, municipalities, townships, special districts (i.e., park districts, library districts, fire protection districts, etc), and various other units of local government. 

The new law places two new obligations on units of local government: (1) to adopt by ordinance or resolution a local policy on expense reimbursements and (2) to approve by roll call vote of the corporate authorities any expenses that exceed the maximum allowable reimbursement established by the local policy. The new law also prohibits any unit of local government from reimbursing entertainment expenses. The law is summarized below.

1.   Adoption of Local Expense Reimbursement Policy

The first requirement (section 10 of the new law) takes effect on January 1, 2017, so covered local governments should make sure that they have adopted a local expense reimbursement policy by the end of the year. That policy must include, at a minimum, the following:

1. The types of official business for which travel, meal, and lodging expenses are allowed.
2.  The maximum allowable reimbursement for travel, meal, and lodging expenses.
3.  A standardized form for submission of travel, meal and lodging expenses that includes spaces for the following information:

  • an estimate of the cost of travel, meals or lodging if the expense has not yet been incurred or receipts for those expenses if they have already been incurred;
  • the name and job title or position of the individual requesting reimbursement;
  • the dates and nature of the official business in which the expenses were or will be expended.
2.  Approval of Expenses

In addition to adopting a formal policy, section 15 of the new law requires covered units of local government to formally approve any expense that exceeds the maximum allowed under the local policy.  That approval must be by the corporate authorities and by roll call vote at an open meeting.  

3.  Prohibition on Entertainment Expenses

Section 25 of the new law prohibits a covered unit of local government from reimbursing any government official or employee for "any entertainment expense." These are defined to include the following:
  • shows
  • amusements
  • theaters
  • circuses
  • sporting events
  • any other place of public or private entertainment or amusement unless ancillary to the purpose of the program or event
So, covered units of local government will have to put together and approve a local reimbursement policy, and ensure that any expenses reimbursed by the government comply with that policy as well as the statutory ban on entertainment expenses. The law contains different (and seemingly inconsistent) time triggers for compliance with the mandates in this statute (180 days for section 10 and 60 days for section 15). A conservative approach would be to have a policy in place before January 1st of next year.

Post Authored by Julie Tappendorf

Wednesday, July 27, 2016

5th Binding PAC Opinion - Another Reminder to Respond to FOIA Request

In PAC Op. 16-005, issued yesterday, the Public Access Counselor of the Illinois Attorney General found a public body in violation of FOIA for a complete failure to respond to a FOIA request. The request had asked for records pertaining to employee salaries, independent contractor compensation, attorneys' fees, elected officials compensation, and debt records. The Village did not respond to the request, nor did the Village extend the time for response. When the requester filed a complaint with the PAC office, the Village did not respond to that complaint either. Not surprisingly, the PAC found the Village in violation, and ordered the Village to provide the records. 

That's the 5th binding opinion for 2016.  Out of the 5 binding opinions this year, 4 of the opinions dealt with a public body's failure to respond to a FOIA request. Like these other opinions, PAC Op. 16-005 provides no new guidance to public bodies beyond reminding them of their statutory obligation to respond to FOIA requests.

Post Authored by Julie Tappendorf

Thursday, July 21, 2016

FOIA Fine Provision Removed from Molly's Law

In February, we reported on Molly's law (HB 6083). The bill, as initially introduced, would have addressed two very different issues: (1) it would expand the time-frame for filing a wrongful death lawsuit and (2) it would amend the Freedom of Information Act (FOIA) to significantly increase the penalties for violations. The bill has been modified significantly since it was introduced, and that modified version of the bill was signed by the Governor this week as PA 99-587.

What is of most interest to local government entities is that the final version of the legislation removed all of the language relating to an increase in FOIA penalties. So, as passed, Molly's Law only deals with the Wrongful Death Act.

Post Authored by Julie Tappendorf

Wednesday, July 20, 2016

Booze and Books?

On July 15th, Governor Rauner signed P.A. 99-599, amending the Illinois Liquor Control Act to allow library districts to serve alcohol during educational or cultural events. This new law permits the sale of alcoholic beverages within any building owned by a library district if the library board of trustees authorizes the sale and adopts a policy. That written policy must include provisions on how and when alcohol can be sold, and provide proof of insurance before approval of liquor sales at a specific event. The new law is as follows:
Alcoholic liquors may be delivered to and sold at retail in any building owned by a public library district, provided that the delivery and sale is approved by the board of trustees of that public library district and is limited to library fundraising events or programs of a cultural or educational nature. Before the board of trustees of a public library district may approve the delivery and sale of alcoholic liquors, the board of trustees of the public library district must have a written policy that has been approved by the board of trustees of the public library district governing when and under what circumstances alcoholic liquors may be delivered to and sold at retail on property owned by that public library district. The written policy must (i) provide that no alcoholic liquor may be sold, distributed, or consumed in any area of the library accessible to the general public during the event or program, (ii) prohibit the removal of alcoholic liquor from the venue during the event, and (iii) require that steps be taken to prevent the sale or distribution of alcoholic liquor to persons under the age of 21. Any public library district that has alcoholic liquor delivered to or sold at retail on property owned by the public library district shall provide dram shop liability insurance in maximum insurance coverage limits so as to save harmless the public library districts from all financial loss, damage, or harm.
Post Authored by Julie Tappendorf

Tuesday, July 19, 2016

Government Social Media Program Heads to the West Coast

For readers on the west coast or those who don't mind traveling to the beach in September, this government social media program is for you (and not just because blog author Julie Tappendorf is the keynote speaker!)  Here are the details:

Get social media ideas, tips & strategy advice from California agencies and more!

The nation's first Government Social Media Regional Training (GSMRT) will be held in Huntington Beach, California on September 13 & 14, 2016. The event is co-hosted by the Huntington Beach Police Department and features a mix of best practices lecture, demos and workshop style presentations. Some of the program includes:
  • Keynote - Social Media Gone Wild: Protecting Agencies from Legal Issues
    Julie Tappendorf, Chicago-based attorney with Ancel Glink
  • Time-Saving Social Media Tools & Tricks
    Nick Smith, City of Gaithersburg, MD
  • How to Leverage the Media in Your Social Strategy
    Katie Nelson, Mountain View Police Dept., CA
  • Facebook & Twitter Revisited: New Features & Strategy
    Chris Hsiung, Mountain View PD and Zach Perron, Palo Alto PD
  • Wildfire Communication on Social Media
    Thomas Christensen, San Diego County, CA
  • Panel: Managing Crisis on Social Media
    Kristy Dalton, GSM; Jennifer Alvarez, Town of Gilbert, AZ; and Chris Hsiung, Mountain View PD
  • Video for Community Outreach
    Erin Cochran & Maureen "Mo" De Nieva, Marin County Health & Human Services, CA
  • Getting a Social Media Team Up & Running
    Lt. Tim Martin, HBPD, CA
  • Canva: Creating Social Media Graphics
    Brittany (Ritzi) Foust, City of Corona, CA
  • Reacting to Online Hostility
    Tom Lorenz, City of Glendale, CA
If you manage social media for an agency in the western U.S., you won't want to miss this event! Learn more about this regional training and register online.

Monday, July 18, 2016

Transgender Rights and Your Employees

The hottest topic of the year is also the most confusing for local government employers – transgender rights and how these rights relate to their employees, patrons, residents or service recipients. Illinois is one of about one-third of the states that has passed legislation prohibiting discrimination based on gender identity. But few courts have interpreted how to enforce these laws, leaving employers and local governments to speculate about such topics as:
  • What does the law require;
  • How to deal with  use of restrooms and changing areas;
  • How to accommodate individuals whose stated gender is non-conforming to their identification for purposes of services and facility use and program participation;
  • How should your employees handle sensitive patron and participant issues relating to transgender rights;
  • What policies are appropriate to adopt?
The EEOC, the Department of Justice and special interest groups are paying close attention to how employers, public agencies and private businesses are accommodating the rights of transgender individuals.  Demystifying the issues involved in transgender rights with your staff is the key to avoiding costly litigation. 

It is important that local government employers and their staff understand these cutting edge issues so that they can avoid gender identity discrimination. Ancel Glink attorneys can provide training sessions to answer questions about how to apply the law, even in the most sensitive or complicated situations, so that the rights of all individuals are respected, as well as questions about who has superior rights and what to do if a patron is uncomfortable in the restroom or changing area, to how to accommodate the rights of a transgender employee, and many more. Please contact us if you would like more information about our training sessions. 

Post Authored by Margaret Kostopulos, Ancel Glink

Friday, July 15, 2016

DOL Issues Rules on Employee Overtime Pay

From Ancel Glink's labor and employment blog, The Workplace Report: The Department of Labor Issues New Rules on Employee Overtime Pay
The wait is over! The Department of Labor issued its highly anticipated new rules on employee overtime pay. The rules state that employees who make under $47,476 annually, which comes out to $913 a week, must be paid 1.5 times their regular hourly wage for working more than 40 hours in a week.
The DOL made no change to the rules governing the duties an employee must perform to be exempt from receiving overtime pay. An employee must still meet the Department's definition of being a professional, executive, or administrative employee to be exempt from receiving overtime pay.
The new rules take effect on December 1, 2016. To read about the five things employers should do to get ready for the new overtime rules, click HERE.

Wednesday, July 13, 2016

Citizen Complaints Against Officers Not Exempt From FOIA

A few years ago, the Illinois appellate court held in two separate cases that the City of Chicago's Complaint Registers or CRs (records generated by police oversight agencies' investigations of citizen complaints of alleged police misconduct) were not exempt from the Illinois Freedom of Information Act. We reported on one of these cases, Watkins v. McCarthy here. In sum, the appellate decisions rejected the City's argument that CRs are exempt from release under FOIA as personnel evaluation records, disciplinary records, or as an unwarranted invasion of the police officers' policies.

Recently, the appellate court encountered similar arguments in FOP et al. v. City of Chicago et al., 2016 IL App (1st) 143884. In this case, however, it was the police unions who were arguing that the records were not subject to FOIA, not the City. The unions argued that the CRs were not subject to release because they were protected by the Collective Bargaining Agreement and the Illinois Personnel Records Review Act. When the City received requests for these records from the Chicago Tribune, the unions filed a grievance against the City and sought an injunction from the circuit court barring the City from releasing the records. The arbitrators initially ruled in the unions' favor, as did the circuit court in granting a preliminary injunction barring the City from releasing the records. 

The City and Tribune appealed, and the case made its way to the appellate court, who rejected the unions' arguments. The appellate court held that that these CRs (citizen complaint records) were not exempt from release under FOIA, and to the extent that the IPRRA or the CBA was inconsistent with FOIA, FOIA would control. 

In short, the court found no valid FOIA exemption to justify withholding citizen complaint records from the public.

Post Authored by Julie Tappendorf

Tuesday, July 12, 2016

Illinois Supreme Court Addresses Takings Clause in Temporary Flooding Case

In Hampton v. Metropolitan Water Reclamation District of Greater Chicago, property owners sued the Metropolitan Water Reclamation District (MWRD), alleging that the MWRD had caused flooding on their properties and in their homes during a storm by diverting stormwater to nearby creeks. The owners claimed that the flooding constituted an unconstitutional "taking" for which they are owed just compensation under the Illinois takings clause.  In defending against the takings claim, the MWRD cited the Illinois Supreme Court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948). That case had held that a temporary flooding is never a taking under the Illinois Constitution. The owners, on the other hand, argued that the case was controlled by the U.S. Supreme Court's ruling in Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012), which held that temporary flooding can constitute a taking under the federal constitution. 

The circuit court denied the MWRD's motion to dismiss and certified the following question: 
Does Arkansas Game and Fish Commission v. U.S., 133 S. Ct. 511 (2012), overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948), that temporary flooding is not a taking?
The Illinois Appellate Court held that the Illinois takings clause is broader than the federal takings clause, and that Arkansas Game and Fish Commission overruled Pratt

On appeal, the Illinois Supreme Court disagreed, holding that the U.S. Supreme Court has no authority to overrule a state court's interpretation of state law, in this case the Illinois constitution.  
Hampton v.Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861(July 8, 2016). However, since the takings clauses are synonymous in the Illinois and U.S. Constitutions, the Court determined that U.S. Supreme Court cases regarding takings are relevant even in cases alleging a taking under the Illinois constitution. However, the Court determined that neither Arkansas Game and Fish Commission nor Pratt imposes a bright line rule regarding whether temporary flooding constitutes a taking.  Instead, both cases direct courts to analyze the facts on a case by case basis to determine whether the owner’s use and enjoyment of the property was diminished or destroyed. 

Applying that analysis to the case against the MWRD, the Court evaluated whether the owners had sufficiently alleged a violation of the Illinois takings clause. The Court noted that the owners only alleged one instance of flooding, and that the flooding was not recurrent or prolonged.  Further, the complaint failed to address whether the MWRD knew that the diversion would cause the flooding. Finally, the Court noted that there was no evidence that the owners were deprived of the use of their property to support a takings' claim. As  a result, the Court determined that the complaint failed to sufficiently allege that the flooding constituted a taking under the Illinois constitution.  

However, the Court did remand the case for the lower court to review and determine whether the owners have a sufficient claim under the Illinois constitution for compensation for damages to their properties. The Court noted that the Illinois constitution provides broader rights to property owners than the U.S. constitution because an owner may be entitled to payment of just compensation for "damages" - the Illinois constitution provides that "Private property shall not be taken or damaged for public use without just compensation as provided by law..."  (emphasis added).

Post Authored by Erin Baker, Ancel Glink

Monday, July 11, 2016

Can a City Enforce its Human Rights Ordinance Against a Park District?

In a case of interest to both our municipal and park district clients, the Illinois Court of Appeals Fourth District recently ruled that the City of Decatur may enforce its Human Rights ordinance against the Decatur Park District.  Decatur Park District v. City of Decatur, 2016 IL App (4th)150699

The Park District had argued that the City had no authority over employment decisions of the Park District.  Allowing the City to proceed against the Park District “would interfere with its authority pursuant to the Park District Code to manage its own affairs.” However, the court rejected this argument relying on a First District case finding that Cook County had authority to enforce its Human Rights Act against a school district (Bremen Community High School District No 228 v. Cook County Commission on Human Rights, 2012 IL App (1st) 112177).

The court said the legislature did not provide park districts with authority to discriminate or retaliate against their employees for filing a complaint alleging discrimination.  Therefore the city does not interfere with park district authority or frustrate its core functions.  The court further stated that local governments were given authority under the Illinois Human Rights Act to police discrimination (775 ILCS 5/7-108A “A political subdivision, ….may create a local department or commission ….to promote the purposes of this Act…and secure for all individuals within the jurisdiction of the political subdivision…freedom from unlawful discrimination…”)

In the Decatur case, the Park District sought the arrest of an employee for surreptitiously recording a conversation with her supervisor.  The employee alleged the District only sought her arrest because she had recently filed a discrimination complaint against the district.  The Decatur Human Rights officer found probable cause to believe the District had retaliated against the employee for filing a discrimination complaint.

The Decatur case helps resolve the legal relationship between municipal and park district authority in relation to Human Rights matters.  The case also illustrates the need to consult with counsel when faced with employment discrimination matters.  

Post Authored by Steve Mahrt, Ancel Glink

Thursday, July 7, 2016

PAC Issues 4th Binding Opinion for 2016

It's been a few months since we've seen any binding opinion issued from the Illinois Public Access Counselor (PAC) - the last opinion was issued more than 3 months ago. Recently, the PAC issued its fourth binding opinion for 2016. Unfortunately, this opinion offers no helpful guidance to public bodies on any novel issues in complying with OMA and FOIA. In PAC Op. 16-004, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request within the statutory time-frame.

On April 5, 2016, a newspaper reporter filed a FOIA request with the Chicago Police Department for various information relating to the department's staffing levels, as well as copies of all personnel orders issued by the department. The CPD extended the time period for response and requested an additional time frame for response from the requester. On May 12, 2016, the reporter had not yet received the requested records and filed a request for review with the PAC office. 

The PAC found the CPD in violation of FOIA for failing to notify the requester of the extension within 5 business days, and for failing to provide the records to the requester, and directed the CPD to comply with FOIA and provide responsive records to the requester, subject to redactions.

Nothing surprising in this opinion. 

Tuesday, July 5, 2016

OMA Amendment Addresses Access to Closed Session Minutes and Recordings

Sliding under the radar this term was Illinois HB 4630, which passed both houses, and was approved by the Governor last week. This bill amends the Open Meetings Act (OMA) to address access by elected officials to verbatim recordings of closed session meetings. 

Section 2.06 of the OMA requires all public bodies to record their closed session meetings by "verbatim recordings." That statute provides that the verbatim recordings are not open for public inspection unless the public body has made a determination that the recording no longer requires confidentiality.  The OMA did not expressly address access to these recordings by public officials until now (although many public bodies probably took the position that elected officials are not the "public.")

HB 4630 adds language that expressly provides access to verbatim recordings (and closed session meeting minutes) to elected officials of the public body (and those appointed to fill a vacancy in an elected position), subject to the following restrictions:
  1. Access to the closed session minutes or verbatim recordings is limited to the main office or official storage location.
  2. Access must be in the presence of a records secretary, administrative official of the public body, or any elected official of the public body.
  3. No verbatim recording shall be recorded or removed from the main office or official storage location except by vote of the public body or by court  order.
  4. The Public Access Counselor's access is not restricted by the new law.

As noted above, the restrictions on verbatim recordings also apply to closed session meeting minutes of the public body. 

The purpose of the law is a good one - ensuring that closed session minutes and recordings are kept confidential and allowing members of the public body to access these records in a secure manner. However, there are a few practical problems with the legislation that the General Assembly may not have thought of. 

First, the law appears to prohibit the prior distribution of closed session meeting minutes to members of the public body in meeting packets, even where those packets are marked confidential and kept separate from publicly distributed meeting materials. Even more concerning, the law may prevent the public body from conducting the required semi-annual review of closed session minutes, which must be done in a closed session since the law restricts access to these records by elected officials to the main office and official storage location - the law doesn't mention the public body's meeting space (unless it happened to be located in the "main office space.")

Second, the law could be interpreted to prevent a public body from distributing closed session recordings and minutes to the public body's attorney or administrative official (i.e., City Manager) to review and use in connection with a response to a PAC investigation or court action to enforce the OMA. Although the public body could vote to allow access to the minutes or recording; timing could be a problem since the PAC only gives a public body 7 days to respond to a complaint, and a public body may not have a meeting scheduled in that time-frame. 

Perhaps a more reasonable interpretation of this legislation is that the law only addresses access to closed session records by elected officials and that it does not impact access to these records by authorized administrative and legal officers of the public body that is necessary for these officers to perform their duties on behalf of the public body. 

Public bodies may need to modify current practice for allowing access to these records by elected officials in order to comply with this new legislation, which takes effect January 1, 2017.

Post Authored by Julie Tappendorf

Friday, July 1, 2016

North Carolina's Cyberbullying Law is Unconstitutional

North Carolina has a cyberbullying statute that makes it illegal "for any person to use a computer or computer network to...[p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor...[w]ith the intent to torment a minor."  N.C.G.S. 14-458.1(a)(1)(d). In 2011, a number of high school students were charged with violating this statute after they posted a variety of Facebook posts, pictures, and comments against a fellow student. Bishop, one of the students who was charged, was convicted by a jury. 

In his appeal of his conviction, Bishop argued that the cyperbullying statute was unconstitutional under the First Amendment because it criminalizes protected speech based on its content.  The North Carolina Supreme Court agreed, finding the statute unconstitutional and overturning his conviction. State of North Carolina v. Bishop, No. 223PA15 (June 10 2016). 

First, the Court held that the statute restricts speech, and not non-expressive conduct. The Court noted that posting information on the Internet is no different than stapling flyers to bulletin boards or distributing pamphlets - activities that are clearly protected by the First Amendment, based on its content. The Court emphasized that online communications are no less protected than other communications. 

Second, the Court found the cyberbullying statute to be content-based, based on the U.S. Supreme Court's recent decision in Reed v. Gilbert (sign case). The Court determined that the statute regulates speech based on its "particular subject matter" - in this case, the law prohibits postings of "private, personal, or sexual information pertaining to a minor."

Third, because the law was content-based, it had to survive a "strict scrutiny" analysis. Although the Court found that protecting children from online bullying is a compelling governmental interest, the problem with this particular law was that it went too far. The Court noted that the word "torment" could include conduct that is simply annoying, and according to the Court, it wasn't "clear that teenagers require protection via the criminal law from online annoyance."

In short, the Court determined that North Carolina's cyberbullying law went too far, and was far broader than the First Amendment allows. As a result, the Court reversed Bishop's conviction for cyberbullying.

Post Authored by Julie Tappendorf