FOIA Information Can Form the Basis for False Claims Act Lawsuit

FOIA Information Can Form the Basis for False Claims Act Lawsuit

  Monday, July 31, 2017    Julie Tappendorf

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A recent decision from an Illinois appellate court clarified when individuals can bring claims under the Illinois False Claims Act. In Lyons Township ex rel. John H. Kielczynskiv. Village of Indian Head Park, a citizen submitted a number of FOIA requests to a municipality regarding a contract for police services that the municipality had entered into with an adjacent township.  

After reviewing the information produced by the municipality in response to his FOIA request, the citizen filed a lawsuit under the Illinois False Claims Act. The False Claims Act allows private parties to bring lawsuits on behalf of public bodies that have allegedly been defrauded.  These private parties are then entitled to a percentage of the settlement or judgment if the lawsuit is successful.  The complaint alleged that the municipality had defrauded the township by submitting bills for services that were never performed and for retaining the revenue from tickets written within the unincorporated areas of the township.

The municipality filed a motion seeking to dismiss the lawsuit because the source of the information that formed the basis of the citizen’s claims was the municipality’s FOIA responses.  Under the False Claims Act, there are a number of exceptions that prohibit a lawsuit from moving forward based on how the citizen discovered the evidence of the alleged fraud.  For example, if the citizen learns of the alleged fraud from a news story or other public report, the citizen cannot proceed with a suit under the False Claims Act.  

Although the trial court had previously ruled in favor of the municipality, the appellate court reversed, finding that the citizen’s claims were not barred simply because the FOIA responses came from the municipality, and not the township.  The court held that only information provided by the public entity that was allegedly defrauded (in this case, the township) could be considered a public report that would bar an action under the False Claims Act. Since the information that formed the basis of the citizen’s claims came from the municipality’s FOIA responses, as opposed to the township, the municipality could not stop the citizen’s claims from moving forward. 

The court also found that the allegedly fraudulent actions of the municipality were not immunized under the Tort Immunity Act. The court noted that the citizen’s claims were based on the contract between the municipality and the township, and that causes of action under a contract theory are not protected by the Tort Immunity Act. The court also held that the Tort Immunity Act only bars claims based on the oral misrepresentations of a municipal employee, but does not bar claims where the alleged fraud is still based on a written contract.  

Post Authored by Kurt Asprooth, Ancel Glink

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Upcoming Webcast on the USSCT's Takings Case

Upcoming Webcast on the USSCT's Takings Case

  Friday, July 28, 2017    Julie Tappendorf

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The Planning and Law Division of the American Planning Association will be hosting a webcast on the recent "takings" case by the U.S. Supreme Court. Information about the webcast is below:

Webcast— Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings

August 14, 2017

1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings on Monday, August 14 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

In Murr v. Wisconsin, the Court ruled 5-3 that a Wisconsin "lot merger" regulation was not an unconstitutional taking as applied to two contiguous parcels, one of which the owners wanted to sell while retaining the other. Rejecting the competing "bright-line rule" positions offered by the owners and the State of Wisconsin, Justice Kennedy announced a new multi-factor test to determine the extent of the appropriate "denominator" in takings claims involving merger provisions applied to contiguous parcels. This webinar will review the facts and ruling in Murr, discuss the dissenting Justices' criticisms of Kennedy's test, and the implications of the Murr ruling both on how state and local governments regulate contiguous parcels and ways that owners of contiguous parcels may react to the ruling.   

Speakers include Alan Weinstein of Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs; Nancy Stroud of the firm Lewis, Stroud & Deutsch, PL; and John Echeverria of Vermont Law School.

Register here

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Contractor Employee Names on Certified Payrolls Releasable Under FOIA

Contractor Employee Names on Certified Payrolls Releasable Under FOIA

  Thursday, July 27, 2017    Julie Tappendorf

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In the 10th binding opinion of 2017, the PAC office of the Attorney General found a municipality in violation of FOIA for redacting employee names from a certified payroll record provided in response to a FOIA request. PAC Op. 17-010. 

A union representative had filed a FOIA asking for copies of payroll records for a particular construction project. The City provided the records, but redacted the contractor employees' names, addresses, social security numbers, and drivers' license numbers. The union filed a request for review with the PAC contesting the redaction of the employee names. The PAC ruled in favor of the union requester, finding that the municipality should not have redacted the names. The PAC acknowledged that section 2.10 of FOIA authorizes a public body to redact from certified payroll records the contractor employees' addresses, telephone numbers, and social security numbers, but noted that this statute does not allow redaction of the employees' names. The PAC also stated that the contractor employees' names were not likely to qualify as "highly personal information" that would fall under the "personal privacy" exemption of 7(c) of FOIA. 

The PAC also noted that the municipality failed to explain the reasons for redacting the other information when it provided the redacted records to the union.  It is important to remember that redacting a record is considered a partial denial, meaning that a public body is obligated to cite the exemption that authorizes the redaction, provide a detailed factual basis for why the exemption was used, and notify the requester of its right to appeal the partial denial.  

Post Authored by Julie Tappendorf

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Justice Department’s Fair Housing Suit Against Village Moves Forward

Justice Department’s Fair Housing Suit Against Village Moves Forward

  Wednesday, July 26, 2017    Julie Tappendorf

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In 2015, a developer submitted plans to the village of Tinley Park proposing to build 47 apartments in a three-story building.  The project was known as the Reserve. The apartment complex would be marketed to people making less than 60 percent of the area median income, and the developer planned to finance the project through the federal Low Income Housing Tax Credit program.    

Originally, the village's planning department determined that the Reserve project met the legal requirements under a special community development plan ordinance alleviating the need for approval by the village board to secure permits. However, shortly after the plans for the Reserve became public, opposition grew from the village residents and the village board sent the project’s plans back to the planning department for review.  The developer eventually sued the village, and the case was resolved when the village agreed to a $2.75 million settlement without any admission of wrongful conduct on the village's part. 

The Justice Department subsequently filed a lawsuit against the village, alleging that the village engaged in a pattern or practice of unlawful discrimination and denied rights to a group of persons on the basis of race and color in violation of the Fair Housing Act in connection with the Reserve project.  Specifically, the federal lawsuit stated that “Community opposition to the Reserve was based on discriminatory attitudes towards African Americans and other groups based on race.”  

The village filed a motion to dismiss, arguing that the Justice Department didn’t have authority to file suit under the Fair Housing Act. The village argued that because the office of the FHA was vacant at the time the suit was filed, the Principal Deputy Attorney General Civil Rights Division had no authority to bring the action. The federal judge rejected the village’s argument and sided with the Justice Department, noting that the suit was brought by the highest ranking official in the Civil Rights Division at the time.  According to the ruling, Congress had never suggested its intent to limit the delegation of authority to subordinates and therefore the functions governed by the statute can be delegated.

We will certainly keep an eye on this case as it moves forward.

Post Authored by Megan Mack, Ancel Glink

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General Subject Matter of an Agenda Item

General Subject Matter of an Agenda Item

  Tuesday, July 25, 2017    Julie Tappendorf

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Section 2.02(c) of the Open Meetings Act provides that any agenda shall set forth the “general subject matter” of an item that will be the subject of final action at the meeting. The PAC has previously determined that “general subject matter” means that an agenda must set forth only the main elements rather than the specific details of  an item on which the public body intends to take final action.   

In a recent advisory opinion, the PAC offered guidance on “general subject matter.”  A public body took final action on an item listed as “Recommendation for Appointments” on the agenda. The agenda failed to list names, offices, or terms for the appointments. The PAC found that the public body did not violate the Open Meetings Act by failing to list the names, offices, or terms, as only the “general subject matter” needs to be listed on the agenda. The PAC specified that these additional details are not required. The PAC looked to the Senate debate on Public Act 97-827, which added 2.02(c) to the Open Meetings Act, noting that the General Assembly stated that the agenda need only set out general notice so that people who follow their units of government know what will be acted on.  The PAC also found it was proper for the Board to take final action, even though the agenda listed it as a “recommendation.” The PAC stated that the requirement that the general subject matter of an item on which final action may be taken be posted on the agenda 48 hours in advance presumes that the item may be the subject of final action, despite language to the contrary. 

This is a good decision for public bodies as it makes clear that an agenda only need set out the general subject matter of an item, without listing specifics such as names, offices, or terms. The important issue is making sure the public has a general idea of the nature of an action a public body intends to take at a meeting.

Post Authored by Erin Pell, Ancel Glink

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Court Upholds Ordinance Prohibiting Storage of Unregistered Vehicles

Court Upholds Ordinance Prohibiting Storage of Unregistered Vehicles

  Friday, July 21, 2017    Julie Tappendorf

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A recent Illinois Appellate Court decision considered the validity of a municipal ordinance that prohibits the storage of unregistered vehicles on private property. 

In Youngberg v. Village of Round Lake Beach, a municipality passed an ordinance making it unlawful to store any vehicle on private land unless the vehicle was duly registered for operation on the public highways of the State of Illinois. The plaintiff was issued citations by the municipality for parking two unregistered vehicles in his driveway. After an administrative adjudication hearing, the plaintiff was found to have violated the ordinance, and was issued fines. The plaintiff filed a complaint for administrative review, and the municipality’s decision was upheld by the circuit court.

On appeal, the plaintiff argued the municipality lacked the statutory authority to prohibit him for keeping an unregistered vehicle on his property. The plaintiff claimed that the Illinois Vehicle Code prohibited the operation of unregistered vehicles on public highways, but did not prohibit the storing of such vehicles on private property.  Further, the plaintiff argued that storing an unregistered vehicle on private property does not create a nuisance, and therefore the municipality lacked the statutory authority to declare otherwise by ordinance.

The court began its analysis by noting that, as a home rule unit, the municipality was not constrained by statute. Rather, the municipality was authorized to exercise any power and perform any function pertaining to its government and affairs, so long as the General Assembly has not preempted the use of home rule powers in that area. The plaintiff challenged whether the municipality’s ordinance pertained it to its government and affairs, arguing that it was the State of Illinois that had the more vital interest in making certain that state vehicle registration fees are paid. The municipality argued that when unregistered vehicles are kept on private property, they attract vermin, allow stagnant water to pool, and become eyesores.  The municipality maintained that preventing these conditions protected the health and welfare of the community.

The court found that the municipality’s ordinance served the distinctly local function of helping to guard against unhealthy and unsightly conditions within the municipality’s boundaries. As such, the court held that the ordinance pertained to the municipality’s government and affairs, and therefore was a valid exercise of the municipality’s home rule powers.

The plaintiff also argued that the ordinance exceeded the municipality’s police power as a home rule unit. The court acknowledged that ordinance was somewhat overinclusive, as not all unregistered vehicles will become eyesores. The court also noted that the ordinance was somewhat underinclusive, as some properly registered vehicles might become health hazards or eyesores.  Nonetheless, the court found that it was reasonable to “attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicles that cannot be driven legally.” Consequently, the court found that the ordinance was also a proper exercise of the municipality’s police power.

Many municipalities have enacted similar ordinances prohibiting the unenclosed storage of unregistered vehicles.  This case confirms that, at least for home rule units, these ordinances are valid as an exercise of the municipality’s home rule and police powers.

Disclaimer: Ancel Glink represented the Village of Round Lake Beach in this case. 

Post Authored by Kurt Asprooth, Ancel Glink

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Updated Law Enforcement Guide to FOIA Released

Updated Law Enforcement Guide to FOIA Released

  Thursday, July 20, 2017    Julie Tappendorf

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The Public Access Counselor (PAC) for the Illinois Attorney General recently updated its guidelines for law enforcement agencies in complying with FOIA requests. The updated "FOIA Guide For Law Enforcement" replaces the previous guidelines and includes references and citations to recent cases and PAC opinions involving requests for law enforcement records.

You can access the guide on the Attorney General's website here. That page also includes links to copies of numerous PAC opinions involving requests for law enforcement records, which have been organized by FOIA exemption.

The Guide discusses the following topics, among others:

General Guidelines

• Presumption of Openness
• Section 2.15 (Arrest Reports)
• 9-1-1 Calls
• Dashboard Camera Video Recordings
• Section 3(g) (Unduly Burdensome Requests)
• Costs and Fees under FOIA
• What is Creation of a New Record?
• Emails and other Communications on Private Accounts** (see note below)

Section 7 Exemptions

• 7(1)(a) (prohibited from disclosure by federal or state law, rules or regulations)
• 7(1)(b) (private information)
• 7(1)(c) (personal information)
• 7(1)(d) (law enforcement or administrative enforcement proceedings)
• 7(1)(e) (security of correctional institutions or detention facilities)
• 7(1)(f) (predecisional, deliberative communications)
• 7(1)(n) (adjudication of grievances and disciplinary cases)
• 7(1)(v) (security plans)

Section 7.5 Exemptions

• 7.5(k) (Illinois Vehicle Code)
• 7.5(v) (FOID Act and Concealed Carry Act)
• 7.5 (bb) (Juvenile Court Act of 1987)
• 7.5 (cc) (Law Enforcement Officer-Worn Body Camera Act)

This Guide will be helpful for law enforcement agencies (including municipal police departments) in responding to FOIA requests. It could also serve as a resource for general use by public bodies, as many of the topics discussed in the Guide have general applicability beyond law enforcement records. To the extent a public body and/or FOIA Officer has questions about how these guidelines apply to a specific request or situation, they should consult with the public body's attorney for guidance, as is noted on page 1 of the Guide.

**Interestingly, with respect to the topic of electronic communications on private accounts, the PAC concludes that emails/texts pertaining to the transaction of public business are public records even when sent on private accounts. The Guide cites a number of PAC opinions to support that conclusion but does not, however, mention the Champaign v. Madigan case. That case, as you may recall, addressed the appeal of a PAC opinion finding a violation of FOIA when city council texts weren't turned over. Although the court agreed with the PAC that the city violated FOIA, it did so on more limited grounds than relied upon by the PAC. In determining whether electronic communications sent/received by members of a public body on their private devices or accounts are subject to FOIA, the court set out 3 circumstances where those emails/texts on private devices are subject to FOIA, as follows: (1) when forwarded to an official account of the public body; (2) when sent to a majority of the public body; or (3) when sent during a meeting of the public body. 

Shout out to a Deputy Public Access Counselor at the Attorney General's Office for letting us know about the publication of this updated information!

Post Authored by Julie Tappendorf

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Governor's Aide Fired on First Day for Tweets

Governor's Aide Fired on First Day for Tweets

  Wednesday, July 19, 2017    Julie Tappendorf

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In another installment of "be careful what you tweet," an aide for the Illinois governor was fired on his first day on the job, reportedly for inappropriate tweets.  News reports identify some of the former aide's tweets as being racist and homophobic, including the following:

"To the Indian people in the library: SHUT THE F--- UP!"

"I bet you liked that #fag"

"Maybe body slamming reporters is the winning formula for republicans in IL?"

It's important to point out that many of these tweets were posted years ago, so employees should take notice that what's in the past doesn't always stay in the past.  The Internet doesn't forget.

Post Authored by Julie Tappendorf

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PAC Finds Body in Violation of FOIA For Failure to Respond to FOIA Request

PAC Finds Body in Violation of FOIA For Failure to Respond to FOIA Request

  Tuesday, July 18, 2017    Julie Tappendorf

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I hesitated even posting this today, but we have been consistent in reporting on all binding opinions issued by the Public Access Counselor's office on FOIA and OMA complaints so we didn't want to miss this one.  Last week, the PAC issued an opinion finding a public body in violation of FOIA for its complete failure to respond to a FOIA request.  PAC Op. 17-009.  That's it, folks - there is nothing more to it than that. 4 of the 9 binding opinions issued this year have dealt with the same issue. 

Post Authored by Julie Tappendorf

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Judge's Twitter Activities Did Not Constitute Bias

Judge's Twitter Activities Did Not Constitute Bias

  Monday, July 17, 2017    Julie Tappendorf

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Recently, the Ninth Circuit Court of Appeals addressed an argument that the sitting judge in a case should have been recused because of his social media activities.  U.S. v. Sierra Pacific Indus. (9th Cir. July 13, 2017). After being found liable for damages relating to forest fires in California, the defendants (2 forestry operators) appealed the decision, requesting that the case be reversed on several grounds, including bias on the part of the judge for the following activities:

1. Following a public Twitter account maintained by the U.S. Attorney constituted improper ex parte communications; and
2. Tweeting a link to an allegedly erroneous news article required reversal of the district court's decision.

The Court first held that the judge's alleged "following" of the U.S. Attorneys' office on Twitter did not prove bias, stating as follows:

[T]he fact that an account holder "follows" another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.

The Court next addressed the claim that following the U.S. Attorneys' Twitter account constituted improper ex parte communications between the judge and the U.S. Attorneys' office, in the context of an opinion from the Code of Conduct applicable to judges that states:

[C]oncerns of improper communication arise in the context of the exchange of frequent messages, 'wall posts', or 'tweets' between a judge or judicial employee and a 'friend' on a social network who is also counsel in a case pending before the court.

In the Court's opinion, the mere "following" of the States Attorneys' Twitter account did not rise to the level of social media communications that would fall within the Code of Conduct.

Finally, in the Court's opinion, the judge's tweet that linked to a news article about the case did not mandate recusal since the tweet did not contain only the title and link, and no commentary from the judge. The Court based its opinion in part because the Twitter account in question did not publicly identify the judge as the account holder. It's not clear if the outcome would have been different if that had not been the case - in other words, if the account was clearly identified as the judge's Twitter account.  

The Court concluded its opinion with some advice to judges on social media activities:

Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.

Post Authored by Julie Tappendorf

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President Sued For Blocking Twitter Users

President Sued For Blocking Twitter Users

  Thursday, July 13, 2017    Julie Tappendorf

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We have previously mentioned on the blog that the law treats a personal social media site different from a government site. For example, a government social media site may be subject to open records laws (FOIA), record retention laws, and most importantly, the First Amendment. 

Because the First Amendment protects free speech rights against government interference, government must be careful in moderating activities on its social media sites. So, while individuals might delete comments or posts that they don't like from their personal social media page, a government does not have the same freedom because comments and posts made on a government social media page could be protected First Amendment speech. Similarly, while individuals can block people from their own personal pages, governments have to be cautious not to censor an individual's protected speech.

This issue recently came up in connection with the President's Twitter account. According to news reports, people have been blocked from the President's @realDonaldTrump Twitter site after tweeting criticism. Earlier this week, seven individuals and the Knight First Amendment Institute at Columbia University filed a lawsuit against Trump, press secretary Sean Spicer and Dan Scavino (the White House director of social media) claiming that their First Amendment right to free speech had been violated by the Twitter block. The lawsuit claims that @realDonaldTrump is an official government social media site because of the way the President uses his Twitter account to communicate about government business. You can read some of these arguments on the Knight First Amendment Institute's website here and you can read the complaint here.

It will be interesting to see how this case proceeds, particularly in light of the recent U.S. Supreme Court opinion recognizing social media as an important platform for exchanging views and engaging with elected officials. Specifically, the Court stated as follows:

Twitter, [where] users can petition their elected representatives and otherwise engage with them in a direct manner. 

The threshold question is whether the President's @realDonaldTrump account is a government account that would implicate First Amendment protections. The answer to that question will likely turn on how the account is used by the President and the White House, and how that site is used as compared to the @POTUS account. The fact that White House aides assist him in administering the @realDonaldTrump page, including posting tweets on behalf of the President, will also likely be relevant.

This is an important issue for elected officials at all levels who use Twitter, Facebook, and other social media sites to communicate and connect with their constituents. 

Post Authored by Julie Tappendorf

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Septic License Holder's Due Process Case Against County Can Continue

Septic License Holder's Due Process Case Against County Can Continue

  Wednesday, July 12, 2017    Julie Tappendorf

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Last week, the Seventh Circuit allowed a Brown County, Indiana man to continue his federal lawsuit against the County for his claims that the County violated his due process rights.

John Simpson owned a septic installation company in Brown County, and held a County license to install and repair septic systems. On May 31, 2013, Simpson received a letter from a County Health Officer, Paul Page, demanding that he immediately repair a septic system, and if Simpson failed to do so, his license could be revoked. A second letter was sent to Simpson on June 14, 2013 informing him that his name was being removed from the list of approved septic contractors and, therefore, would have his license rescinded. Simpson was not told of the law or regulation that he violated in order to have his license revoked, and was not given any opportunity for a hearing or an appeal of the revocation.

Simpson sued, and his case made its way to the Seventh Circuit Court of Appeals. That Court overturned the district court’s dismissal of Simpson’s case against the County, allowing his case to move forward.  The Seventh Circuit focused primarily on the power and discretion the County’s septic ordinance gave their health officers. Under the established procedures of the County’s septic ordinance, a County Health Officer has broad discretion to remove any worker who demonstrates an “inability or unwillingness to comply” with the ordinance. This allowed these officers to act without giving people like Simpson any right to be heard before their license was taken from them. The Court noted that there was no reason to believe that the cost of basic procedures (such as notice and a hearing) would be so unduly burdensome to deny a pre-deprivation process to Simpson.

In sum, the Seventh Circuit held that Simpson has stated a claim for a violation of procedural due process, allowing his case to continue.

Post Authored by Katherine Takiguchi, Ancel Glink

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PAC Finds Another City in Violation of FOIA

PAC Finds Another City in Violation of FOIA

  Tuesday, July 11, 2017    Julie Tappendorf

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The PAC recently issued another binding opinion, Public Access Opinion 17-007,  finding the City of Benton in violation of FOIA.  The City received a FOIA request seeking agendas and minutes for the Benton Airport for 2013, 2014, and 2015, and forwarded the request to the Airport Board.  A member of the Airport Board responded asking for a 5 day extension as it had not yet appointed a FOIA officer.  When the requester still did not receive the requested information, she filed a Request for Review with the PAC claiming that the City violated FOIA.  In response to the Request for Review, the City argued that since the FOIA request pertained to the Airport, it should be directed to the Airport, which the City claimed is a separate entity, and not to the City. PAC Op. 17-007.

The PAC first evaluated the extension, finding it inappropriate under Section 3(e) of FOIA, which does not allow a public body to unilaterally extend the time for response because of a lack of a designated FOIA officer.  Further, the requester did not agree to any extension of time. 

Next, the PAC disagreed with the  City’s contention that the Airport is a separate entity.  Although the Airport has its own board and adopts it own laws, the PAC found that the Airport was a City-owned property, and the Board was created by City ordinance. The Airport Board members are also appointed and may be removed by the City’s mayor and Airport funds are maintained in the City treasury.  Further, the PAC noted that the Airport Board submits reports to the City, and is listed as a City Board on the City’s website.  The PAC found that these facts showed that the City is responsible for responding to the FOIA request, just as it would be for other municipal departments.  In sum, the PAC found that the City violated Section 3(d) of FOIA by failing to respond and ordered the City to comply with the request.  

Post Authored by Erin Pell, Ancel Glink

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Employee Challenges Employer's Social Media Policy

Employee Challenges Employer's Social Media Policy

  Monday, July 10, 2017    Julie Tappendorf

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We've reported frequently on employees "behaving badly" on social media and being disciplined and even terminated for postings, even when those posts are made on their private social media sites and on their own time.  As a general rule, an employer can discipline employees for personal social media activities, so long as those activities do not constitute protected activity (i.e., First Amendment protected speech, matters of public concern, protected concerted activities, etc).  Individual gripes about your job or your boss are typically not protected and can subject an employee to discipline.

An employee at a retirement facility was recently terminated for her social media posts that included the following:

Today was the worst!!!!!!!!!

And, in a post that appeared to be directed at her co-workers:

Thanks for helping out...Oh wait I am a team of 1 because others have meetings or they to [sic] lazy to get up to help someone.

Reportedly, the employee says she was forced to resign for violating the employer's social media policy. She claims her employer's social media policy prohibits employees from making online comments that might embarrass the company, and that policy violates her right to discuss workplace conditions.

We'll certainly keep an eye on this case as it moves forward. Based on the information available on this case, it appears that her posts fall more in the "individual griping" category (not protected) rather than activities protected by labor laws such as discussion of salary and working conditions (protected). That being said, even if this particular employee's posts were not protected and if her termination is upheld, the employer's social media policy could still be found invalid if it is so broad in scope that it could be interpreted to cover protected activities.

You can read more about the case and the employee's claims in the Roanoke Times here.

Post Authored by Julie Tappendorf

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PAC Finds Governor's Office in Violation of FOIA

PAC Finds Governor's Office in Violation of FOIA

  Friday, July 07, 2017    Julie Tappendorf

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In its 8th binding opinion of 2017, the PAC issued a ruling finding the Governor's office in violation of FOIA for not responding to a request for copies of the Deputy Governor's emails and daily schedule. PAC Op. 17-008.  There really isn't much more than that to report - the Governor's office failed to respond to the request, so the PAC found the office in violation of FOIA. 

Frankly, there doesn't seem to be a good reason why the PAC made this a binding opinion. It doesn't provide any new guidance to public bodies that we haven't seen in so many other binding opinions - i.e., if someone files a FOIA request, you have to respond to it. As I've noted before on the blog, it would be helpful to public bodies if the PAC were more transparent with its advisory opinions  and posted them on its website. These advisory opinions (which make up more than 90% of the opinions issued by the PAC) often provide interpretations of unique issues that public bodies face in complying with FOIA and OMA.  

Post Authored by Julie Tappendorf

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July 1st Deadline for Basset Training in Certain Counties

July 1st Deadline for Basset Training in Certain Counties

  Thursday, July 06, 2017    Julie Tappendorf

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As you may recall P.A. 99-46 (approved in 2015) required alcohol servers and ID checkers in liquor establishments to be Basset-trained. The Act phased in the training requirement by county population. Servers in counties with a population over 200,000 were required to comply with the Act by July 1, 2016. Servers in counties between the population of 30,000 and 200,000 must be in compliance with the Basset training requirement by July 1, 2017. The balance of the state has a July 1, 2018 deadline to implement Basset training.

  

The State Liquor Commission website has a list of locations where training is provided on a monthly basis.  Other locations may be scheduled for training events from time to time. You can find more information here:

It is incumbent on licensees to make sure their servers and ID-checkers are Basset certified. Failure to do so may result in enforcement action taken against the licensee. New servers have 120 days to complete their Basset training. Servers must renew their training every three years. Licensees will want to obtain a copy of the Basset training card for all of their servers in the event the state or the local commissioners audits the licensee.

Local Liquor Commissioners will want to inform liquor licensees of this training requirement. Municipalities may consider adding the Basset training to their local liquor ordinance.

Post Authored by Steve Mahrt, Ancel Glink

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Supreme Court Decision Affects Local Governments on Social Media

Supreme Court Decision Affects Local Governments on Social Media

  Wednesday, July 05, 2017    Julie Tappendorf

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Excerpt from the ELGL (Engaging Local Government Leaders) Blog: Supreme Court Decision Affects Local Governments on Social Media

Last week's Supreme Court decision in Packingham v. North Carolina recognizes the application of the First Amendment to social media. Today, Dan Bolin and Julie Tappendorf take a closer look at what that means for local governments in a blog post for ELGL (Engaging Local Government Leaders):

The Government Can’t Just Delete Comments it Doesn’t Like

If you see a post you don’t like on your personal Facebook 'wall,' you can just delete or hide it, or just block someone from posting at all. Moderating comments on local government social media sites is very different, however, because of the First Amendment.

The First Amendment provides individuals with the right to engage in protected speech without government interference. If a local government establishes a social media site to communicate with the public about agency business, the First Amendment will apply to the comments and posts made by others on that site. So, the moderator of the agency page cannot simply delete, hide or block posts or people based solely on the content of the message that was posted.

That does not mean that 'anything goes' on government social media sites. Governments can adopt rules on public comments so long as the rules do not implicate protected speech. For example, local governments might ban commercial advertising on its site, prohibit discriminatory comments, and ban all links to third party sites.

However, removing posts that are simply critical of the agency or its activities could be subject to challenge as a violation of the First Amendment. Many governments find it helpful to look at social media moderation along the same lines as moderation of comments at a public meeting – while it is acceptable for the public to criticize and disagree with agency actions, if the speech becomes disruptive, agencies will enforce 'rules of decorum.'

Local governments should put their comment policies in writing and post them on their social media sites (or provide links to the policies on their website) to put the public on notice of the type of comments that will be subject to removal.

Local Government Employees have First Amendment Rights on Social Media

Public employees also have the right to exercise their First Amendment speech rights, to comment on working conditions, and to speak on matters of public concern. As a general rule, however, social media posts that fall more into the category of an “individual gripe” about the employee’s job or supervisor will not be considered protected and could result in discipline and even termination.

Adopt and Review a Social Media Policy

By adopting a social media policy, including a comment policy and employee use policy, local governments can manage social media in accordance with the First Amendment, open records laws, open meetings laws, and copyright laws."

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Post Authored by Dan Bolin, Ancel Glink

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