Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


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

Tuesday, January 31, 2017

U.S. Supreme Court Will Decide Whether Mug Shots Are Subject to Federal FOIA

It's pretty rare that the U.S. Supreme Court hears a case about the Freedom of Information Act (FOIA). Yet, the Court accepted an appeal of a 6th Circuit Court of Appeals decision that held that a criminal defendant's "booking" photo is not subject to the federal FOIA statute. In Detroit Free Press v. U.S. Department of Justice, the 6th Circuit Court of Appeals determined that a criminal defendant has a "non-trivial" privacy interest in not having his or her booking photos released to the public, or in this specific case, the press.  Although this case involved interpretation of the federal FOIA (and not the Illinois FOIA), the specific exemption that was cited is very similar to that contained in the Illinois FOIA. 

Section 7(c) of the federal FOIA provides that a record compiled for law enforcement purposes is exempt from release if public release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The 6th Circuit Court of Appeals applied this exemption to find that booking photos fall squarely within the type of personal information that would result in an invasion of personal privacy if released, because "mug shots" depict individuals in an embarrassing and humiliating light. The Court noted that the Internet has made it even more important to protect these photos because once they are posted, they are permanently accessible. Balancing the privacy interests of the arrestee against the public interests of the press, the Court concluded that mug shots are exempt from FOIA.  

Interestingly, the Court acknowledges that a number of states mandate the release of mug shots. Although the Court does not mention Illinois, there is an Illinois statute mandating release of certain arrest information, including the name of the arrestee, the charges brought against him or her, and a photograph, where available. 50 ILCS 205/3b.  

It will be interesting to see how the U.S. Supreme Court decides this case and we will certainly keep you posted on this one.

Post Authored by Julie Tappendorf

Monday, January 30, 2017

School Board Candidate Files Libel Suit for Facebook Post

A candidate for school board member has filed a libel lawsuit against individuals who commented on and shared his Facebook post. His post (which he included as part of his complaint) stated as follows:
Went to kids ball game tonight. We got two sodas, two popcorn and a candy. It took a good minute for the kids to come up with the $7 total. I gave her a $20 and two $1's. The special child (that's politically correct for window licker) looked at me and argued it was only $7. I said I know. She was clueless. Then here comes special child #2 who hands me the two $1's back. I told her I don't want them back and figure it out. I finally gave up after all four special children were lost. I had to tell them to give me $15 back and that I did it because I didn't want any $1 bills. Lord help us with the window lickers, I mean special children. [emoticons removed]
According to news sources, the candidate claims that the actions of the defendants (a special education teacher and two other individuals) in commenting on and sharing his post have damaged his business (he's an attorney) and his reputation.  He argues that contrary to the statements of the defendants, he was not disparaging special-needs children in his Facebook post. He asks for punitive damages, and an injunction to require the individuals to remove the posts. On January 24th, his request for a temporary restraining order (TRO) to have the posts removed was denied, but the remainder of his case continues and the next hearing is scheduled for February 2nd.

Friday, January 27, 2017

Labor Law Seminar on February 16th

Coming to a Municipality Near You:  The Labor and Employment Attorneys of Ancel Glink Are Here To Prepare You For New Employment Law Changes

When:  February 16, 2017 - 8:30 a.m to 11:15 a.m.

Where:  Heartland Community College, 1500 West Raab Road, Normal, IL 61761

Who:  All local governmental officials, managers, administrators or directors

What: As we get settled into the New Year, employers need to be aware of new employment laws that have recently become effective, or soon will be. Employers also should be aware of the important cases to keep tabs on and what to expect under the new administration. 

In this no-cost "breakfast briefing," the labor and employment attorneys from Ancel Glink will explain the new laws and how to apply them to your employees so that you stay in compliance with state and federal laws. We will discuss topics such as:
  • The myriad of new local and state leave benefit laws; Who gets what?
  • Is your "use it or lose it" policy still valid?
  • Are employees entitled to privacy in the workplace? If so, how much? What are the employer's responsibilities?
  • Travel reimbursement policies:  what are these and who needs one?
  • What changes can you expect with the new presidential administration on overtime, transgender rights, the ACA and other employment initiatives?

Seating is limited. Reserve your spot at the breakfast briefing now by calling Kathy Cook at 312-604-9174 or by making a reservation by email at kcook@ancelglink.com.

Chicago area local government officials: Stay tuned as Ancel Glink will be presenting this program in your area soon.

Disclaimer: The information in this blog post may be considered attorney advertising material under the applicable rules of certain states. 

Thursday, January 26, 2017

Another Bill Would Amend Local Government Wage Increase Transparency Act

Over the past week,  we have been reporting on bills that could affect local governments.  Today, we have yet another bill regarding wage and fee transparency. 

House Bill 728 proposes to amend the Local Government Wage Increase Transparency Act to require attorneys with two or more local government clients to perform an annual audit of the following: 
  1. Fees and charges billed to, and paid by, each unit of local government represented by the attorney;
  2. Referral fees paid by the attorney to a person or business for the referral of a local government client to the attorney; and
  3. Referral fees paid to the attorney for referring a unit of local government to another attorney.

The bill also requires the attorney to file copies of the completed audits with the State Treasurer and the unit of local government. The bill does not specify with which local government the report must be filed or whether reports must be filed with all of the attorney's local government clients. The bill also provides that the reports are releasable under FOIA and must be retained under the Local Records Act. 

We will continue to monitor the bill’s progress and report on its status.

Post Authored by Erin Baker, Ancel Glink

Wednesday, January 25, 2017

Bill Would Establish Local Government Inspector General and Ethics Commission

Yesterday, we reported on a bill that would provide expanded powers to non-home rule municipalities (apologies to our email readers - the link in yesterday's post was incorrect but has been fixed in the online version of the blog).  Today, we report on another bill that will affect local governments - Illinois Senate Bill 85 regarding local government ethics.

If passed, SB 85 would establish the office of the Local Government Inspector General, a state office with the powers to investigate and report on allegations of incompetence, neglect of duty, malfeasance in office, corruption, or official misconduct of local government officials and employees. If the Inspector General finds sufficient evidence to proceed, the office can file a complaint with the Local Government Ethics Commission (also created by this legislation), which commission is authorized to conduct a hearing and hear evidence from the Inspector General and the local official or employee concerning the allegations. 

At the conclusion of the hearing, the Commission has the following options:

1.  Dismiss the complaint; 
2.  Issue a recommendation of discipline to the local official or employee's jurisdictional authority; 
3.  Impose an administrative fine on the local official or employee; 
4.  Issue injunctive relief; or
5.  Impose a combination of relief of 2-4 above.

Since this bill would have significant impact on all units of local government (except those that have a local inspector general), we will follow this bill closely and report back with any updates.

Post Authored by Julie Tappendorf

Tuesday, January 24, 2017

Bill Would Expand Non-Home Rule Powers

The beginning of a legislation session brings a lot of new bills, some of which affect local governments.  We will summarize some of these bills as they are introduced, although if history repeats itself, many of these bills will probably not make it out of rules committees.  

Just yesterday, a bill was introduced to expand the powers of non-home rule municipalities in Illinois. If passed, Illinois House Bill 511 would provide non-home rule municipalities with the same powers as home rule municipalities except for the powers to tax, impose fees, and to incur debt.  You can read the bill here

Post Authored by Julie Tappendorf

Monday, January 23, 2017

Illinois Supreme Court Rules Against PAC in OMA Case

Last week, the Illinois Supreme Court determined that the Public Access Counselor's office of the Illinois Attorney General was wrong when it found a public body in violation of the Open Meetings Act in connection with the approval of a separation agreement.  Board of Ed. of Springfield Sch. Dist. 186 v. Attorney General of Illinois, 2017 IL 120343

In its decision, the Court interpreted language in the OMA's requiring that final action be "preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted." In sum, the Illinois Supreme Court rejected the PAC's interpretation of that provision to require a public body to explain the significance of its action prior to taking a vote. The Court also rejected the PAC's interpretation that the public body must summarize the "key terms" of the item being voted on, finding no such language in the statute. Instead, the Court held that section 2(e) of the OMA simply requires a public body to announce the matter under consideration and identify the particular transaction or issue prior to taking a vote on that matter. 

We reported on the PAC opinions finding the District in violation herehere, and here. We also reported on the appellate court ruling overturning the Attorney General's opinion here.  The fact of this case are below:

The Board of Education met in several closed sessions to discuss a separation agreement with the superintendent of schools. At one of these closed sessions, several board members signed the agreement. At that same meeting, the board attorney explained that the agreement would have to be publicly approved at an open meeting. That approval took place on March 5, 2013. The agenda for that meeting described the agenda item as "Approval of a Resolution regarding the Separation Agreement and Release between Superintendent Dr. Walter Milton, Jr., and the Board of Education." The District's website included a copy of the resolution, and the separation agreement, both of which were available for public inspection on March 1st - 4 days before the meeting. At the March 5th meeting, the Board president introduced the item. Two board members discussed the item, and then it was approved by a 6 to 1 vote. 

A reporter filed a request for review with the PAC office alleging multiple violations of the OMA, including that the board members signed the agreements in closed session, that the agenda item was not descriptive enough, that the board failed to adequately inform the public of the action being taken when it approved the separation agreement, and that it failed to summarize discussions about the agreement.  The PAC found the Board in violation of the OMA in several opinions, and the Board appealed to the courts.

The circuit court first reversed the PAC finding that the Board took final action in closed session when it signed the separation agreement in closed session, holding that the final action was actually taken on March 5th, when the Board approved the agreement in open session.

Second, the circuit court reversed the PAC finding that the website posting was inadequate and the Board's "explanation" of the item was inadequate, holding that the agenda was posted 4 days prior to the meeting, the Board provided links on its website to the resolution and agreement, and that there is no requirement under the OMA to explain the significance of an action.  The PAC then appealed, first to the appellate court (which upheld the circuit court's rulings) and then to the Illinois Supreme Court.

As noted above, the Illinois Supreme Court upheld the Board of Education's approval of the separation agreement. First, the Court determined that the Board properly voted on the agreement at the open meeting on March 5, 2013, and that the signing of the agreement in closed session was not "final action." Second, the Court determined that the Board President's announcement of the item prior to taking a vote satisfied section 2(e)'s requirement of a "public recital." The Court rejected the PAC's argument that this section requires a public body to summarize the "key terms" of a matter prior to voting on it. 

Two interesting notes from this decision. First, the Court did not base its ruling on the fact that the public could access the agreement and resolution prior to the meeting on the Board's website - instead, the Court determined that the "public recital" requirement was satisfied by the Board President's announcement of the agenda item and reading of the name of the resolution.  Second, the Court noted that the OMA does not prohibit a board from taking a preliminary vote at a closed session, so long as the final action is taken in open session. 

Post Authored by Julie Tappendorf

Monday, January 16, 2017

Police Department's Social Media Policy Unconstitutional

In 2013, a Virginia police department adopted and implemented a social media policy for its police officers. The policy, among other things, prohibited police officers from posting negative comments about (1) the internal operations of the department and (2) specific conduct of supervisors or co-workers that would impact the public perception of the department, stating that such comments were not protected by the First Amendment. The policy also stated that while officers could comment on matters of general or public concern, the comments could not disrupt the workforce, interfere with working relationships or workflow, or undermine public confidence in the officer. 

Relying on the social media policy, the department disciplined two officers for Facebook posts they made about co-workers, supervisors, and the department while off-duty. The posts included comments about their disagreement with recent promotions, and coworker conduct and the promotion of certain officers that the two officers believed should not have been promoted. The posts also included discussions about their their supervisors and lack of leadership in the department. 

Both officers were given an oral reprimand and six months' probation. The officers sued under § 1983 alleging the department's social media policy violated their First Amendment free speech rights. The case made its way to the Fourth Circuit Court of Appeals. That Court found the department's social media policy unconstitutional and held that the disciplinary measures taken against the officers pursuant to that policy were impermissible.

The Court's specific issue with the social media policy was that it was overbroad because it bans employees from speaking on matters of public concern - in this case, speech that is critical of the government employer. The Court had specific concerns with policy provisions that ban social media posts that fall within the following categories:
  1. posts that "would tend to discredit or reflect unfavorably" on the department.
  2. "negative comments on the internal operations" of the department.
  3. discussions about the "specific conduct of supervisors or peers."

In the Court's view, these prohibitions impose a significant burden on the right of government employees to speak out on matters of public concern.

The Court then held that the department could not rely on the policy as a basis to discipline the officers for their social media activities, particularly where the posts fell within the provisions cited above that were found unconstitutional.   Liverman v. City of Petersburg (4th Cir. 2016).

Post Authored by Julie Tappendorf

Thursday, January 12, 2017

AFSCME Sues Illinois Labor Relations Board For Allegedly Violating Open Meetings Act

In an uncanny twist to the ongoing collective bargaining negotiations between AFSCME and the State of Illinois, on December 6, 2016 AFSCME filed a lawsuit alleging the Illinois Labor Relations Board violated the Open Meetings Act when it issued its written decision and order finding that the parties were at impasse in the negotiations. The complaint also included a request that the court issue a temporary restraining order to prohibit the state from implementing the terms of its "Last, Best, and Final Offer."

These unusual circumstances and allegations of Open Meetings Act violations are the result of more than two years of contentious collective bargaining negotiations. By way of background, in early 2015, the State and AFSCME began negotiating for a successor collective bargaining agreement. In those negotiations, the parties negotiated and agreed to a series of Tolling Agreements whereby they agreed to continue meeting and negotiating in good faith for a successor bargaining agreement and to not to engage in strikes, work stoppages, work slowdowns, or lockouts unless they mutually agreed that an impasse had been reached in the collective bargaining or until the Illinois Labor Relations Board resolved the issue concerning the existence of an impasse. To that end, on January 8, 2016, the State determined that an impasse existed and presented AFSCME with a Last, Best, and Final Offer and pursuant to the Tolling Agreement. After AFSCME disagreed that the parties were at impasse, the State submitted the issue to the Illinois Labor Relations Board as an unfair labor practice charge. 

On November 15, 2016, the Illinois Labor Relations Board orally declared there was an impasse in the collective bargaining negotiations. Thereafter, the State began implementing the terms of its Last, Best, and Final Offer, which included the following contract terms: $1,000 merit pay for employees who missed less than 5% of assigned work days during the fiscal year; overtime after 40 hours; bereavement leave; the use of volunteers; the beginning of a merit raise system; drug testing of employees suspected of working impaired; and the formation of a task force to look into workplace safety. The Illinois Labor Relations Board issued its written decision on December 5, 2016, but subsequently reissued the decision at its December 13, 2016 Board Meeting.

Since the ILRB oral decision, AFSCME has launched a full litigation assault to sidestep the Illinois Labor Relations declaration of impasse by first filing for a TRO in St. Claire County on December 1, 2016 to prohibit the State from implementing the terms of its Last, Best, and Final Offer and then filing on December 6, 2016 the action challenging to the Illinois Labor Relations Board’s impasse order as a violation of the Open Meetings Act. In its lawsuit, AFSCME purports that the Illinois Labor Relations Board circumvented the Open Meetings Act by making substantive determinations in private and outside the November 15, 2016 Board meeting. AFSCME’s claims are based on alleged differences between the Illinois Labor Relations Board’s written decision issued on December 5, 2016 and its oral decision issued at the November 15, 2016 Board meeting.

Even though it is unlikely any inconsistencies AFSCME alleges between the Illinois Labor Relation Board’s oral decision and its written order would not have changed the result, the circuit court granted AFSCME’s request for the TRO against the Illinois Labor Relations Board and suspended the enforcement of its written decision permitting the implementation of the State’s Last, Best, and Final Offer. Indeed, the Illinois Labor Relations Board likely cured any error if there was one by reissuing the written order on December 13, 2016. But, the net effect of the granting of the TRO is that the negotiations are back where they started – at a standstill.

We will provide updates or developments as this case proceeds.

Post Authored by Jeff Brown, Ancel Glink

Tuesday, January 10, 2017

Municipality Failed to Properly Fund Police and Firefighter Pensions

In a recent case, a court held that a Village failed to properly fund its police and firefighter pension funds in violation of the Illinois Pension Code. Village of North Riverside v. Boron. 

The Pension Code requires that municipalities contribute a certain amount to their police and firefighter pension funds every year.  Under the Pension Code and the corresponding regulations in the Illinois Administrative Code, a municipality must show “good and sufficient cause” for failing to properly fund its pensions with evidence of some unforeseeable delay or occurrence, an uncontrollable circumstance, or an Act of God.

The Illinois Department of Insurance found that the Village had failed to make the required annual contributions to its police pension fund from 2008-2012, and failed to make the required annual contributions to its firefighter pension fund from 2009-2012.  The Village admitted it failed to make the required contributions, but claimed the failure was caused by mitigating circumstances outside of the Village’s control.  The Illinois Department of Insurance subsequently called a hearing to allow the Village to show “good and sufficient cause” for its failure to properly fund its pensions. 

At the hearing, the Village claimed it was unable to meet its statutorily required funding obligations mainly due to the recession that began in 2008. The Village offered evidence that the Village’s property tax receipts decreased due to the economic downturn and successful property tax appeals. The Village also provided evidence that it lost its largest sales tax producer in 2012. The Village claimed that, as a non-home rule municipality subject to the Property Tax Extension Limitation Law (PTELL), the Village could not increase its property tax levy to cover its losses.  The Village issued bonds and debt certificates in an attempt to make up for the lost revenue, which apparently led to Village’s credit rating being downgraded.

However, evidence was also produced showing that the Village had made the full required contributions to the IMRF for other Village employees (non-public safety).  The evidence also showed the Village’s sales tax receipts had actually increased as a result of tax hikes in 2008 and 2012.  Additionally, the Village admitted it subsidized garbage collection and water services for its residents, unlike many other municipalities.  

At the conclusion of the hearing, the hearing officer determined the Village had not shown “good and sufficient cause” for its noncompliance, and ordered the Village to comply within 30 days. On appeal, the Village argued that (1) “good and sufficient cause” as used in the Illinois Pension Code and the Illinois Administrative Code is unconstitutionally vague because it provides the hearing officer with too much discretion; and (2) that the decision was otherwise arbitrary and erroneous. 

The appellate court rejected the Village's arguments and upheld the decision of the hearing officer.  The court noted that the regulations allowed the Village to present almost any reason for failing to comply, and yet the Village still failed to establish any good and sufficient cause for its noncompliance.  The court also found that the decision of the hearing officer was not erroneous or arbitrary, as the evidence showed that the Village made conscious decisions to prioritize its spending and allocate funds elsewhere in violation of the Pension Code.  The court specifically noted that the Village had used increased sales tax revenue to fill gaps in the Village’s normal revenue stream and that the Village continued to subsidize garbage and water services instead of funding its pensions.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, January 9, 2017

Neighboring Village Lacks Standing to Challenge Rezoning & Development Application

A developer filed an application with the Village of Lemont requesting approval of a rezoning and its development plans for property at Grand Road. The application sought to rezone the property from residential to a manufacturing district so they could use the property as a heavy industrial development.  The property was located close to the Village of Willow Springs, which filed a lawsuit asking the court to enjoin Lemont from approving the rezoning and development. The court dismissed Willow Springs’ complaint based, in part, on a lack of standing, and Willow Springs appealed.

A municipality’s standing to challenge another municipality’s zoning decision requires the first municipality to demonstrate that it would be "substantially, directly and adversely affected in its corporate capacity" by the zoning decision. Willow Springs argued that Lemont’s approval of the zoning application would constitute a public nuisance and that it had a real interest in the proposed development because approval of the application would negatively affect the quality of life of its residents, property values and its village’s growth and development.  However, the appellate court disagreed, finding that Willow Springs failed to demonstrate that as a neighboring municipality it was “substantially, directly and adversely affected in its corporate capacity” by the rezoning. As a result, Willow Springs lacked standing to assert a constitutional challenge.   Village of Willow Springs v. Village of Lemont

The court also found no reason to enjoin future action that would prevent Lemont from approving the proposed development, noting that “Illinois courts have long refused to preemptively enjoin legislative action, holding that challenges are more properly made to a law’s enforcement once it has been enacted,” 

Finally, Willow Springs argued that it would suffer irreparable harm because the proposed development is inconsistent with the character of the adjoining area of Willow Springs, resulting in diminished property values, lost property tax, congested roads which are safety hazards and result in degraded air quality. The Court found these to be “exceedingly generic” allegations for proposed new facilities since the development was not yet constructed or operating. The court also acknowledged that the property had been previously zoned for industrial use prior to being annexed to Lemont and that Lemont had planned for industrial use on this property in its comprehensive plan, evidence that tended to support the rezoning application.

Post Authored by Megan Mack, Ancel Glink

Friday, January 6, 2017

New Requirements for Law Enforcement Agencies Re: Sexual Assault Crimes

A new state law (Public Act 099-0801) contains new requirements for law enforcement agencies regarding the handling of sexual assaults and sexual abuse crimes. Among the changes are:
  • Mandatory Report Writing
  • Additional Responsibilities for Responding Officer 
  • Collecting, Storing, and Testing of Sexual Assault Evidence
  • Release of Information to the Victim Relating to Evidence Testing
The Illinois Chiefs' association has worked with the Illinois Attorney General's office to help prepare report templates and guidelines for implementing the new law. Forms and additional information are available on the Attorney General's website here. The Attorney General's office has also prepared this detailed Bulletin for Law Enforcement regarding the new law.

If you have questions regarding this document, you can contact Jessica O’Leary, Assistant Attorney General, Office of Illinois Attorney General Lisa Madigan, Policy Division, at joleary@atg.state.il.us or 312-814-1003, or your legal counsel.

Post Authored by Ellen Emery, Ancel Glink

Thursday, January 5, 2017

Final 2 Binding PAC Opinions of 2016 (Open Meetings)

In the last two binding opinions of 2016 issued by the Public Access Counselor's office of the Attorney General (PAC), the PAC found two public bodies in violation of the OMA.  With these 2 opinions, the PAC issued 15 binding opinions in 2016 (5 of which were issued in December).

PAC Op. 16-014: Public Body's Advance Notice Rule for Recording Meetings Unreasonable

In PAC Op. 16-014, the Norwood Park Watchdog group filed a complaint with the PAC alleging that the local school district board violated the Open Meetings Act when it prohibited him from recording the board's open session. The board had rejected his request made 10 minutes before the meeting based on a local board policy that required a person to notify the board president or superintendent in advance. Although the board's recording policy was silent on what advance notice was required, the board had applied the policy to require 24 hours advance notice. The board explained that the advance notice was required to ensure that the recording equipment was properly placed to avoid recording the images of students in attendance at a school board meeting.

The PAC rejected the board's arguments and ruled that the school board's "advance notice" requirement for recording board meetings was not reasonable under the OMA. The PAC noted that the board had not cited any compelling reason for requiring advance notice (the PAC did not accept the board's argument that children may be present, instead stating that the board could simply move its meetings if it were concerned about student privacy. In sum, the PAC ordered the board to revise its policy consistent with its opinion. 

PAC Op. 16-015: Public Body's Final Action on Item Not Listed on Agenda Violated OMA

In PAC Op. 16-015, a Village Trustee filed a complaint with the PAC alleging that his Board violated the OMA by voting on an item that was not on the agenda. At a board meeting, one of the board members made a motion to approve a settlement agreement under the agenda item identified as "Old Business." The minutes showed that the Board attorney had cautioned the board that it could not take action on the agreement because it was not on the minutes. Nevertheless, the board took a vote and the motion passed. Not surprisingly, the PAC found the board in violation of the OMA for taking final action on a matter that was not identified on the agenda. 

Post Authored by Julie Tappendorf

Wednesday, January 4, 2017

2 Recent PAC Opinions Deal with Employee Salaries

The Public Access Counselor (PAC) was a little busy in December cranking out the last of the binding opinions for 2016. This post summarizes 2 of these opinions, both of which deal with public employee salary information:

In PAC Op. 16-012, the PAC found a City Housing Authority in violation of FOIA for improperly denying a FOIA request for the names and titles of staff members receiving raises and bonuses. The Authority denied the request, claiming the information was protected as private information, would constitute an invasion of privacy if released, and that the Personnel Records Review Act prohibited disclosure of this information. The requester appealed to the PAC, and the Authority further defended its refusal to provide the information by arguing that the requester would use it to harass employees.

Not surprisingly, the PAC found the Authority in violation of FOIA. Consistent with past opinions, the PAC noted that records pertaining to a public employee's compensation (i.e., salary and bonuses) is a public record subject to release. The PAC also rejected the Authority's argument that the information could be used to harass public employees, noting that the requester's motives for requesting public records is irrelevant. In short, the Authority was ordered to release the requested information.

In PAC Op. 16-013, a reporter filed a request for review with the PAC alleging that a City Council violated the Open Meetings Act when it went into closed session to discuss pay raises for City employees. The City Council argued that it was authorized to go into closed session under section 2(c)(1) of OMA, which allows a public body to go into closed session to discuss the "compensation" of employees. The PAC rejected the City's argument, however, finding that this particular exemption only applies to discussion of compensation of specific employees, and the City Council discussed an "across the board" pay raise rather than raises for named employees.  The City also argued that the closed session was authorized under section 2(c)(2) of OMA, which allows a public body to discuss "deliberations concerning salary schedules for one or more classes of employees" in closed session. The PAC rejected that argument, however, because the City Council did not cite that exception when it went into closed session. The PAC concluded that the City Council violated OMA.

The reporter had made an argument that even if the City Council had cited 2(c)(2), it would not have applied because the City Council discussed salaries for non-union employees, and the reporter argued this section only applies to employees subject to a collective bargaining agreement. Because the City Council had not cited 2(c)(2) to go into closed session, the PAC did not issue an opinion on whether a discussion of salary schedules in closed session applies only to employees subject to a collective bargaining agreement or to all public employees. 

Post Authored by Julie Tappendorf