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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, November 30, 2017

Update on PAC Opinions Regarding Public Comment at Meetings

A little more than three years ago, we published a blog post summarizing some of the Public Access Counselor (PAC) opinions interpreting the public comment provision of the Open Meetings Act (section 2(g)). The post referenced an article published in the Illinois Municipal Review magazine (authored by Julie Tappendorf, Ancel Glink), and was based on all of the opinions (binding and advisory) that had been issued to-date at that time. You can re-read the 2014 post here.  

The 2014 blog post provided a "top 10" list of the PAC opinions by category/topic, as follows:

1. Public comment must be provided at all meetings.
2. The public comment requirement applies to subsidiary bodies.
3. Each public body must adopt rules for public comment.
4. A public body can establish time limits for public comment.
5. A public body can limit comments to topics germane to the agenda of a special meeting.
6. A public body can establish and enforce rules on decorum.
7. Public comment can be provided at any point in the meeting.
8. Public officials are not obligated to respond to questions.
9. The public comment rule does not address conduct of members of the public body.
10. There is no violation of the OMA if there is no request to speak.

Recently, we filed a FOIA request with the PAC to obtain copies of all opinions issued since the IML article and blog post were published. We have read through these opinions, and offer a few additional guidelines/tips for complying with the public comment requirement.

In addition to the 10 compliance tips listed above, here are a few additional guidelines public bodies can take from more recent PAC opinions on public comment:

1. The PAC has no authority to weigh in on compliance with Roberts Rules of Order, public hearing procedures, or the conduct of public officials.
2. Allowing residents to speak first or restricting public comments to residents only is not allowed.
3. A public body cannot require a person to disclose his or her address in order to speak.
4. A public body cannot require a person to register 5 days in advance in order to speak.
5. Public comment does not have to be listed on the agenda.
6. A public body is not required to solicit public comments.
7. The public body must have a written rule in place to enforce any time limit on public comment.
8. Public body cannot satisfy public comment requirement through a practice of allowing individuals to meet with officials outside of a meeting.
9. Restricting the content of public comments to agenda items is no longer permitted (PAC changed course on an earlier opinion).
10. Limiting a person's ability to speak during public comment to once every 45 days is not allowed.

Post Authored by Julie Tappendorf

Wednesday, November 29, 2017

Ohio Justice Criticized for Facebook Posts

An Ohio Supreme Court Justice has been criticized for recent Facebook posts defending "heterosexual males."  According to the ABA Journal, Justice Bill O'Neill posted the following on Facebook:
Now that the dogs of war are calling for the head of Senator Al Franken, I believe it is time to speak up on behalf of all heterosexual males. As a candidate for Governor, let me save my opponents some research time. In the last fifty years, I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous blonde who was my first true love and we made passionate love in the hayloft of her parents barn and ended with a drop dead gorgeous red head from Cleveland. 
Now can we get back to discussing legalizing marijuana and opening the state hospital network to combat the opioid crisis. I am sooooo disappointed by this national frenzy about sexual indiscretions decades ago.
After receiving hundreds of comments, Justice O'Neill deleted the post and replaced it with a post that included the following: "Lighten up folks. This is how Democrats remain in the minority."  That post was then followed by two different apology posts.

This isn't the first time Justice O'Neill's Facebook activities have been reported on in the press. In August, he posted on Facebook that he "will  NEVER attend a sporting event where the draft dodging millionaire athletes disrespect the veterans who earned them the right to be on the field. Shame on you all." That post was also removed shortly thereafter.

Post Authored by Julie Tappendorf

Tuesday, November 28, 2017

Board Violated OMA By Discussing Member's Conduct in Closed Session

The PAC issued its 13th opinion in 2017 last week, finding a public body in violation of the Open Meetings Act. In PAC Op. 17-013, the local chapter of the NAACP filed a complaint with the PAC alleging that a Village Board improperly went into closed session to discuss a Board member's racists  comments made at a previous Board meeting. 

In reviewing the minutes of the meeting in question, the PAC noted that the Village Board had cited 2(c)(4) of the OMA as the basis for going into closed session. That exception allows a public body to go into closed session to discuss "[e]vidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law" by quasi-adjudicative bodies. The PAC also reviewed the verbatim recording of the closed session, which consisted of discussions by the Board of a resolution relating to comments by one of its members.

The PAC concluded that the closed session did not fall under 2(c)(4) for several reasons. First, the Board did not consider evidence or testimony in closed session. Second, the Village Board's discussion of one of its members conduct was as a legislative body, not a quasi-adjudicative body. Third, the Village Board was not authorized by law to conduct a hearing on the allegations against one of its members, which were not a matter subject to any adjudicatory or quasi-adjudicatory process. In short, the PAC determined that 2(c)(4) did not authorize the Village Board to go into closed session to discuss the conduct of one of its members.

The PAC also discussed whether 2(c)(1) or 2(c)(3) would apply, although neither of these exemptions were cited by the Village Board in going into closed session. The PAC noted that Board members are not employees of the Village, so 2(c)(1) was not applicable. Further, the PAC stated that 2(c)(3) would not provide a basis for the closed session because a Village Board does not have the power to remove one of its members from office, in the PAC's opinion.

As a remedy, the PAC ordered the public body to release the verbatim recording of the closed session.

Post Authored by Julie Tappendorf

Monday, November 27, 2017

Pension Board's Denial of Pension Application Vacated Due to Bias

After a fire lieutenant with a fire protection district (District) was denied a disability pension by the Pension Board, she sued the Board claiming that she did not receive a fair hearing due to alleged bias by some members on the Board. The trial court upheld the Board’s decision to deny the pension application, but on appeal, that decision was reversed and the case was sent back with directions to hold a new hearing.  Naden v. The Firefighters’ Pension Fund of the Sugar Grove Fire Protection District, 2017 IL App. (2d) 160698 (November 17, 2017).

Naden had been employed by the District since 1996.  In 2014, she requested a medical leave of absence.  In her request, she noted several instances of sexual harassment.  The District initiated an investigation into the sexual harassment claims, but it never concluded. Naden did not return to work following her approved leave, and applied for pension benefits.  The Board denied her application, and determined she was not eligible to receive either a line-of-duty or a non-duty pension. 

On appeal, Naden argued she did not receive a fair hearing before the Pension Board because three of the five members of the Board were also the firefighters she accused of sexually harassing her during her employment. In addressing Naden’s allegations of bias on the part of the Board, the appellate court noted that “a personal interest or bias can be pecuniary or any other interest that may have an effect on the impartiality of the decisionmaker.” Because the District never concluded its investigation, the appellate court found  there was “something of a running controversy between the Plaintiff and the three members” and that where there is an actual incentive for bias, recusal is required. The appellate court concluded that because each of the three board members named by Naden had a material, direct, personal interest in denying her disability claim, their bias rendered the Board’s decision unsustainable. It vacated the Board’s decision and remanded the case with instructions to the Board to hold a new hearing on Naden’s application for disability benefits. 

Post Authored by Jessi DeWalt, Ancel Glink

Monday, November 20, 2017

Local Governments Must Formally Adopt Sexual Harassment Policies

Last week, the Governor signed into law P.A. 100-0554. The new law requires local governments to take formal action to adopt sexual harassment policies. Within 60 days of the effective date of the new law, each unit of local government must adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. 

The policy must include, at a minimum, the following provisions:

1. A prohibition on sexual harassment.
2. The procedure for reporting an allegation of sexual harassment.
3. A prohibition on retaliation for reporting an allegation of sexual harassment.
4. The consequences for violating the sexual harassment policy and for knowingly making a false report.

While most units of local government probably already have a sexual harassment policy in place, it is important that government entities review existing policies for compliance with the new statutory requirements and take formal action to adopt or ratify the sexual harassment policy by resolution or ordinance. According to the General Assembly's website, the law's effective date is November 16, 2017, meaning that local governments have until January 16, 2018 to adopt an ordinance or resolution approving a policy that complies with the new law.

The new law also contains a number of other regulations relating to sexual harassment, including training requirements for state officials and lobbyists, as well as other regulations. The language pertaining to the new policy requirements for local governments language is set out below:
No later than 60 days after the effective date of this amendatory Act of the 100th General Assembly, each governmental unit shall adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. The policy shall include, at a minimum: (i) a prohibition on sexual harassment; (ii) details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights; (iii) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under this Act, the Whistleblower Act, and the Illinois Human Rights Act; and (iv) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

Post Authored by Julie Tappendorf

Monday, November 13, 2017

Reminder to Adopt Annual Schedule of Meetings

A quick reminder to public bodies in Illinois - every public body that is subject to the Illinois Open Meetings Act must give public notice of its annual schedule of regular meetings at the beginning of each calendar or fiscal year. Most public bodies tend to adopt the annual schedule of regular meetings for the following year in December, which is just one month away (can you believe it?!). The annual schedule must include the times and places of all regular meetings. 5 ILCS 120/2.03.

Section 2.03 applies to "each body subject to this Act." That means that subsidiary bodies, including committees of the board or council and other advisory boards and commissions, are subject to this requirement. The PAC office of the Illinois Attorney General has taken the position that if a public body does not adopt an annual schedule of regular meetings, then every meeting of that particular public body is considered a "special meeting," so the public body must follow the requirements for special meetings under the OMA.  

Post Authored by Julie Tappendorf 

Friday, November 10, 2017

Court Upholds Chicago's Public Nudity Ordinance

The Seventh Circuit Court of Appeals recently ruled against a woman who sued the City of Chicago after she was cited for public nudity when she participated in GoTopless Day 2014. Tagami v. City of Chicago, (7th Cir. Nov. 8, 2017). 

Ms. Tagami participated in the 2014 event by walking around the streets of Chicago topless. She was cited for violating a Chicago ordinance that prohibits public nudity. She subsequently filed a lawsuit against Chicago, claiming that the ordinance was unconstitutional because it violated her free speech rights under the First Amendment and unlawfully discriminates against her on the basis of her gender. The district court had dismissed her lawsuit, and she appealed to the Seventh Circuit.

First, the Seventh Circuit found that Chicago's ordinance prohibits conduct, not speech. The court acknowledged that some conduct may be protected as "expressive" speech if the conduct conveys its own message without additional speech. Being in a state of nudity, the court held, is not an inherently expressive condition. Even if the conduct was expressive speech, the court determined that the Chicago public nudity ordinance would survive strict scrutiny because its purpose (to promote moral norms and public order) were both self-evident and important.

Second, although the court found that the ordinance does treat men and women differently, the different classifications and treatment under the ordinance did not rise to the level of discrimination, given the inherent physical differences between men and women. 

Post Authored by Julie Tappendorf

Thursday, November 9, 2017

Audio Recordings of Open Meetings Not Exempt Under FOIA

It's been awhile, but the PAC office of the Illinois Attorney General just released its 12th binding opinion for 2017.  In PAC Op. 17-012, the PAC found a public body in violation of FOIA when it denied a request to release audio recordings of meetings of the public body.

A reporter requested, among other records, copies of audio recordings of all board meetings in 2017. The public body denied the request, claiming that the recordings fell under the preliminary records exemption of section 7(1)(f) of FOIA. The reporter appealed the denial of his request for the audio recordings to the PAC. 

The PAC first reviewed section 7(1)(f), finding that it applied only to records "that reflect the give and take of the deliberative process" and not to information that is "already public knowledge." The PAC rejected the public body's argument that the audio recordings were preliminary because they are used in the preparation of the official minutes of the meeting. In support of its opinion, the PAC cited a West Virginia case finding that recordings of meetings were not exempt under a West Virginia FOIA exemption that protects "[i]nternal memoranda or letters received or prepared by any public body." The PAC also noted that FOIA permits a public body to withhold audio recordings of closed sessions, but that the statute does not contain similar language for recordings of open sessions.

In short, the PAC's binding opinion finds that audio recordings of open meetings are not exempt under 7(1)(f) of FOIA. 

Post Authored by Julie Tappendorf

Wednesday, November 8, 2017

Bill Would Impact Municipal Accounting Methods

On November 7, 2017, the Illinois House Government Transparency Committee will hear testimony on HB 4104.  That bill was introduced to address confusion about acceptable bases for municipal accounting that resulted from letters the Office of the Illinois Comptroller sent to many municipalities in the spring. The Comptroller letters notified municipalities that they would be required to file audits on an accrual basis of accounting. Although cash basis of accounting is currently permitted under Illinois statute, the Comptroller took the position that the cash basis practice of many municipalities was prohibited, and municipalities that using cash basis for their audits would be fined. 

This bill would clarify that both methods of accounting, cash and accrual, are acceptable methods of filing audits that meet generally accepted accounting principles. The bill is on second reading and may be amended prior to being read on the House floor.  We will keep you posted on this bill.

Post Authored by Jessi DeWalt, Ancel Glink

Tuesday, November 7, 2017

Bill Would Expand Campaign Disclosure Laws to Cover Social Media

Political campaigns have increasingly used social media as a platform to deliver communications and messages about candidates for elected office to constituents. Perhaps recognizing the impact of these platforms, the Illinois General Assembly recently introduced a bill to amend campaign disclosure laws to expressly reference social media platforms. SB 2251

Section 9-9.5 of the Election Code currently requires political committees to disclose any expenditures the committees make on pamphlets, circular, handbill, Internet or telephone communication, radio, television and print advertisements directed at voters that mention a specific candidate running for office in an upcoming election. That section also requires that the political committee that pays for the ad identify itself in the communication. SB 2251 would amend that disclosure law to expand the disclosure requirements for expenditures on campaign advertisements on "any social media platform." 

The bill was just introduced in the Illinois senate last month. We will keep you posted on the bill as it moves forward.

Post Authored by Julie Tappendorf