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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, May 31, 2018

New Law Allows Website Posting for Prevailing Wage Rates

Last year we reported on a new law that authorizes public bodies to "publish" their prevailing wage rates by posting notice on their websites rather than in the newspaper. Public bodies that adopt the Department of Labor's wage schedule for the county (or counties) in which the public body is located are eligible to take advantage of this alternative method of publishing their prevailing wage rates. P.A. 100-0154.

If a public body qualifies for the alternative method of publication, it must post a notice of the determination of prevailing wages on the public body's website with a hyperlink to the prevailing wage schedule for the locality that is published on the Department of Labor's website.  The following link will direct you to the list of counties where you can find the proper link to post on your website:   

You can read our previous blog post here.

Post Authored by Julie Tappendorf

Wednesday, May 30, 2018

Court Dismissed Challenge to Chicago's Tax on Internet Streaming Services Such as Netflix

Last week, a Cook County Circuit Court Judge issued a ruling in favor of the City of Chicago in a challenge that its 9% amusement tax violated federal law and the constitution. Labell v. City of Chicago. Plaintiffs had filed a lawsuit against the City of Chicago alleging that the City's imposition of the amusement tax on Internet-based streaming services such as Netflix, violated the federal Internet Tax Freedom Act, the U.S. Commerce Clause, the Illinois constitution, and exceeded the City's home rule taxing powers. Plaintiffs were customers of Internet services who had been charged the amusement tax. 

The court addressed each allegation, finding no merit to plaintiffs' challenge to the City's tax. The court determined that the City had adequate authority under its home rule powers. The court also found no validity to plaintiffs' argument that the City's imposition of a different tax on live amusements than it does on Internet-based amusements discriminates against them. The court also rejected plaintiffs' argument that the tax violates the uniformity clause because it treats residents differently than non-residents. 

Post Authored by Julie Tappendorf

Tuesday, May 29, 2018

Law Making Licensee Complaints Confidential Not Retroactive

In a recent case decided by the Illinois Supreme Court, the Court determined that a new law that provided that complaints filed with the Department of Financial and Professional Regulations (Department) against licensees are confidential and protected from disclosure should not be retroactively applied to a FOIA request. Perry v. Department of Financial and Professional Regulations, 2018 IL 122349

Plaintiffs filed requests with the Department for copies of complaints filed with the Department against licensees. The Department denied the FOIA requests, citing various exceptions including P.A. 98-911 which protects from release complaints filed against certain licensees. Plaintiffs sued, claiming that their requests were filed before the new law became effective, and the law should not be applied retroactively. The circuit court agreed with plaintiffs, but the appellate court reversed. On appeal to the Illinois Supreme Court, the Court reversed the appellate court, finding that the new law that would protect the requested records from release should not be retroactively applied. The Court then remanded the case back to the circuit court to make a determination on an award of attorneys fees and to hold a hearing on civil penalties.

Post Authored by Julie Tappendorf

Thursday, May 24, 2018

President's Blocking of Twitter Users Found Unconstitutional

Last summer, we reported on the federal lawsuit filed against President Trump by individuals who had been blocked from the President's @realDonaldTrump Twitter account. You can read our post here. Yesterday, the federal district court issued a ruling in this case declaring that the blocking of users from the President's Twitter account violated the users' First Amendment free speech rights. Knight First Amendment Institute et al. v. Trump.

The court's analysis is interesting because there are very few cases that discuss the interaction of the First Amendment with social media. It's also lengthy (75 pages), so I've condensed what I believe are the important points of the court's analysis in the following summary. 

Twitter Users Engaged in Protected Speech

First, the court considered whether the plaintiffs (the blocked users) had engaged in speech protected by the First Amendment. The court concluded that they had because the users sought to engage in political speech critical of the President, and speech on "matters of public concern" is protected by the First Amendment.

@realDonaldTrump Account is Controlled by the Government

Second, the court looked at whether the space where the users were preventing from engaging in protected speech was a public forum for purposes of the First Amendment. That issue turned on whether the space in question is "owned or controlled by the government." The court acknowledged that Twitter is a private company that is not government-owned, the control exercised by President Trump over the @realDonaldTrump account was governmental in nature, based on the following factors:
  • The account is presented as being "registered to Donald J. Trump, 45th President of the United States of America." 
  • The President's tweets are official records that must be preserved under the Presidential Records Act.
  • The account has been used in the course of a number of official acts, including the appointment of officers, the removal of officers, and the conduct of foreign policy.
  • The President presents the account as being a presidential account rather than a personal account.
  • The President has used the account to communicate and interact with the public about his administration.
  • White House aides, including co-defendant Daniel Scavino, White House Social Media Director and Assistant to the President, had access to the account and drafted, posted, and assisted the President with content for tweets on the account.

Public Official's Purely Personal Account Treated Differently

The court acknowledged the distinction between a personal Twitter account and governmental official account, noting that a public official's blocking of a user from a purely personal Twitter Account would not implicate a First Amendment forum analysis. But, in this case, the court determined that the nature of the control over the @realDonaldTrump account by the President and his staff was governmental in nature. 

Interactive Space of President's Twitter Account is a Designated Public Forum

Third, the court examined whether the public forum was a traditional, designated, or non-public forum under the First Amendment. The court rejected any argument that it was traditional, finding no basis for finding the interactive space of the President's Twitter account to be historically used for public speech and debate. However, the court did find the forum to be a designated public forum, meaning that "viewpoint discrimination" is presumed to be impermissible. Based on the facts (which were agreed to by all parties), the court determined that the plaintiffs (the blocked users) were "indisputably blocked as a result of viewpoint discrimination." Specifically, the court found that they were blocked because they criticized the President or his policies, an allegation that was not contested by the President. 

President's First Amendment Rights Not Implicated

Finally, the court rejected the President's argument that his First Amendment rights would be violated if he could not choose the people he associates with on Twitter. Although the court acknowledged that public officials do not lose their First Amendment rights when they take office, they do not have the right to exclude critical speakers from expressing their opinions - in this case, by blocking those users from his Twitter account. The court did seem to suggest that a public official could "mute" a Twitter user, comparing that to "ignoring" a speaker who the official does not want to engage with. However, the act by a public official of "blocking" users as a result of the political views they have expressed is not allowed under the First Amendment where the speech is protected and the area in which the speech takes place is a public forum protected by the First Amendment.

In short, the court found that the President's blocking of Twitter users violated their First Amendment rights. The court did not order the President to "unblock" the users, instead choosing to simply declare the conduct as unconstitutional and leaving it to the President to "remedy the blocking we have held to be unconstitutional."

So, what is the takeaway for public officials?  Your personal social media accounts should not be subject to First Amendment protections so long as they are used solely for personal, and not governmental, communications. However, to the extent that your social media account is used to communicate about your government position and activities and/or holds itself out as being an official account, it might be subject to the same analysis as President Trump's Twitter account. That means you should be cautious about engaging in viewpoint discrimination (i.e., blocking, deleting, or otherwise censoring or punishing other users based on the content of their message).

Post Authored by Julie Tappendorf

Wednesday, May 23, 2018

PAC Annual Report for 2017

Each year, the Public Access Counselor's office of the Illinois Attorney General (PAC) releases an annual report summarizing the PAC's activities over the past year. The Annual Report includes a summary of some of the binding and non-binding opinions issued by the PAC office, as well as information about the PAC's informal resolutions. The Report also reports on the number of requests for review filed with the PAC office. You can access the full Report for 2017 on the PAC website here.  

It is important to point out that the PAC's Annual Report for 2017 is heavily skewed towards reporting solely on opinions finding public bodies in violation of FOIA or OMA. In fact, the Annual Report completely fails to report on any of the opinions that find in favor of public bodies on FOIA and OMA complaints. The one-sided nature of the Annual Report is somewhat misleading to the public as it suggests that every complaint filed with the PAC has merit. To the contrary, we have read and reported on many PAC opinions that find in favor of public bodies, albeit in non-binding opinions. Frankly, it would not be that difficult for the Annual Report to summarize a few of these opinions or at least report on the percentage of opinions finding in favor of, or against, public bodies. In my opinion, a more balanced approach to reporting on the PAC activities would provide the public with a more accurate reporting on the PAC's activities and how public bodies are complying (or not complying) with FOIA and OMA. 

The Annual Report includes the following statistics for 2017:
  • 3,515 requests for review were filed with the PAC relating to FOIA complaints
  • 373 requests for review were filed with the PAC relating to OMA complaints
  • 15 binding opinions were issued in 2017 (you can find summaries of these opinions on this blog)
  • 43 training sessions were conducted by the PAC
  • 92% of the 35,000 requests for review filed with the PAC since 2010 have been closed
Post Authored by Julie Tappendorf

Tuesday, May 22, 2018

"Sham" Annexation Violated Public Policy and is Invalid

State law authorizes a municipality to annex unincorporated territory to the municipality in a number of different ways. A municipality may annex a property voluntarily, when a property owner files an annexation petition requesting that its property be annexed. A municipality may also annex property involuntarily or forcibly, if certain statutory conditions are met. For example, a municipality may forcibly annex a property that is "wholly bounded" by one or more municipalities without the owner's consent. In Chicago Title Land Trust v. County of Will, the court considered the legality of a forcible annexation that was contingent upon the validity of a previous voluntary annexation.

The municipality had entered into an annexation agreement with ComEd to annex a 5 acre parcel to the municipality. Pursuant to the annexation agreement, ComEd agreed to file an annexation petition to voluntarily annex its property, subject to certain conditions. Those conditions included the ability to disconnect the property upon ComEd's request. The annexation agreement was approved, and the property annexed pursuant to its terms.

Subsequent to the annexation of the ComEd property, the municipality adopted an ordinance forcibly annexing property that became "wholly bounded" as a result of the ComEd annexation. Shortly thereafter, the property owner filed suit, challenging the forcible annexation as a "sham" based on the terms of the annexation agreement and the municipality's actions.

Although the trial court upheld the annexation, the appellate court did not, finding that the municipality's actions amounted to a "sham" annexation of the ComEd property that was for the sole purpose of bringing into the municipality the adjacent property without consent of the owner. The court determined that because the ComEd annexation was a "sham" it was invalid, meaning that the property forcibly annexed was not "wholly bounded" for purposes of the forcible annexation statute. The court concluded that this sham transaction violated public policy.

Post Authored by Julie Tappendorf

Monday, May 21, 2018

No Due Process Violations Against School District

A dispute between a school board member and a student resulted in a lawsuit against the board member and a school district that made its way to the Seventh Circuit Court of Appeals in Manley v. Bruce Law, (7th Cir. May 10, 2018).

Manley was a member of a high school district when she got into a verbal altercation with a high school student who was passing out leaflets supporting Manley's political opponents outside a high school play. Manley claimed the activity violated school board policy. The student subsequently accused Manley of bullying, and a public outcry led to the school district initiating an investigation into Manley's behavior. Manley filed suit against the school district alleging that the investigation violated her due process rights. The district court dismissed the case, and Manley appealed to the Seventh Circuit.

The Seventh Circuit first noted that the Constitution "does not guarantee good feelings or regulate manners in political disputes" and that "American politics is not for the thin-skinned, even, or perhaps especially, at the local level." With that introductory backdrop, the Court found no violation of Manley's due process rights when the district investigated her actions at the school play. The Court held that Illinois does not create a constitutional right to "emotional well-being" or any right to be free from investigations such as the one the district conducted about Manley. In short, the Court found no constitutionally protected interest at play in this case, and upheld the dismissal of Manley's claims against the school district.

Post Authored by Julie Tappendorf

Friday, May 18, 2018

New Episode of Ancel Glink's Quorum Forum Podcast Now Available!

Ancel Glink’s Quorum Forum podcast has a new “Special Meeting” episode available titled “Consolidation!” In this episode of our podcast, we present an update on consolidation legislation affecting municipalities, and hear Keri-Lyn Krafthefer's takes on township consolidation.

Check it out here:

Quorum Forum website: http://quoromforum.ancelglink.com/

Questions? Show ideas? Email us at podcast@ancelglink.com!

Tuesday, May 15, 2018

Seventh Circuit Upholds City's Adult Use Ordinance

The Seventh Circuit recently considered a challenge to the adult use provisions of the City of Indianapolis’s zoning ordinance in HH-Indianapolis, LLC, v. Consolidated City of Indianapolis and County of Marion, Indiana, et al.

The plaintiff sought to operate a “Hustler Hollywood” store in the City’s C-3 District.  Under the City’s zoning ordinance, the plaintiff’s store was classified as either an adult bookstore or an adult service establishment. The City’s zoning ordinance prohibited adult uses in the C-3 District.  However, adult bookstores and adult service establishments were permitted by right in three other City commercial zoning districts, including the C-4 district located directly across the street from the proposed store.

After the City denied the plaintiff’s building and sign permit applications because the use was not permitted in the C-3 District, the plaintiff sued, claiming the City’s zoning ordinance violated its First Amendment rights. 

The Seventh Circuit ruled against the plaintiff, finding that the City's zoning regulations did not prohibit adult uses entirely, but merely regulated their location. The Court rejected plaintiff's argument that the City’s ordinance “silenced” their ability to exercise their First Amendment rights at the location of their choosing. The Court noted that the plaintiff had not been silenced, but merely told that it could not operate in one commercial zoning district and must move to another. The Court noted that the plaintiff could operate in three other commercial districts by right. Further, the Court found that the City had a substantial interest in reducing the secondary effects of adult uses by limiting their location. Ultimately, the Court held that “because the ordinance is content-neutral, serves a substantial interest, and allows HH to operate in numerous other commercial districts, HH’s likelihood of success on its First Amendment claim is not better than neglible.”

As the Seventh Circuit confirmed, municipalities have the power to enforce reasonable time, place, and manner restrictions on adult uses. 

Post Authored by Kurt Asprooth, Ancel Glink

Monday, May 14, 2018

School Board Did Not Violate OMA in Using "Self Evaluation" Exception

A recent PAC opinion addressed Section 2(c)(16) of the Open Meetings Act in an advisory opinion. 2018 PAC 51767. While a non-binding opinion, it offers guidance on interpreting the “self evaluation” exception of the OMA.

A school board member filed a complaint with the PAC alleging that the school board violated the Open Meetings Act by holding an improper closed session. The Board entered closed session at a special meeting to discuss self-evaluation of Board procedures under 2(c)(16) of the Act. While in the closed session, the Board also discussed ways in which it could prevent the complainant from posting on social media.    

Section 2(c)(16) allows a public body to discuss in closed session “self evaluation, practices and procedures or professional ethics, when meeting with a representative of a statewide association of which the public body is a member.”  The school board argued that the closed session was proper as two representatives from a statewide association, Illinois Association School Boards, were present to conduct the self-evaluation.  The board contended that the complainant’s allegations focused on a part of the closed session where the board discussed concerns about actions taken by individual board members.  It argued that the discussion was directly related to the self-evaluation.  The complainant argued that the discussion did not fall with the scope of the 2(c)(16) exception, claiming that the discussion centered on policy, not self-evaluation. 

Upon review of the verbatim recording of the meeting, the PAC found that the discussion was made in the context of discussing improvements to certain practices and procedures.  The PAC found that the discussion during the closed session was within the scope of 2(c)(16) and no violation of the Act occurred. 

Post Authored by Erin Pell, Ancel Glink

Monday, May 7, 2018

Ancel Glink's Podcast "Quorum Forum" is Live!

We are excited to report that we have just released our new podcast, Ancel Glink's very own Quorum Forum!

In our first "Regular Meeting" episode, Caitlyn Sharrow highlights pending local government legislation, and Julie Tappendorf discusses the use of personal cell phones to communicate about government business. 

You can listen to the podcast on the following podcast platforms:

iTunes: https://itunes.apple.com/us/podcast/quorum-forum/id1380233731

Don't forget to follow Ancel Glink's Quorum Forum channel on your favorite podcast platform so you know when new "meeting" episodes are released. We will also update Municipal Minute when a new episode goes live.

Questions or show ideas? Send them to podcast@ancelglink.com.”

Friday, May 4, 2018

Instagram Posts Support $10,000 Sanctions Against Lawyer

In a recent court ruling, a New Jersey judge imposed a $10,000 sanction on a lawyer after she claimed that she was out of town on a family emergency, but her Instagram account proved otherwise. Siu Ching Ha v. Baumgart Cafe of Livingston.

Ms. Franco represented a group of plaintiffs in a Fair Labor Standards Act case against four New Jersey cafes. After she missed a deadline to file a motion for class certification on behalf of the plaintiffs, she filed a motion for an extension of time. In her motion, she stated that she was forced to leave the country due to a family emergency in Mexico City, and attached her itinerary. 

The defendants' attorneys filed an objection to the motion for an extension, and pointed out that Ms. Franco's Instagram account showed that she was  not in Mexico City on the date the motion was due to be filed. Instead, her account showed she was in New York City, and then Miami. The attorneys also pointed out that the itinerary attached to Ms. Franco's motion referred to Thursday, November 21, 2016, which was not a real date. In response, Ms. Franco argued that emotional distress over her mother's health caused her to provide an "erroneous itinerary" and she requested that the court allow her to withdraw from the case. 

At a court hearing, Ms. Franco admitted that she was not honest with the court. However, she argued that sanctions should not be imposed because her conduct did not amount to "unreasonable and vexatious" conduct. The court disagreed, finding that sanctions were warranted in this case because Ms. Franco deliberately misled the court and the other attorneys in this case. The court expressly acknowledged that her social media account showed she was not in Mexico City as she claimed in her motion for an extension. In short, the court found Ms. Franco's actions in bad faith. Although defendants' counsel had requested $44,283 in attorneys' fees and costs against Ms. Franco, the court found the billings to be excessive, and reduced the sanctions award to the defendants' counsel at $10,000.

This was a pretty expensive lesson for the attorney, and a reminder to everyone that there is no privacy in your social media activities.

Post Authored by Julie Tappendorf

Thursday, May 3, 2018

Update on Municipal Consolidation Bill

A couple of weeks ago we reported on a bill that would amend the municipal consolidation statute in a number of ways. One of the most significant changes in that earlier version of the bill would be to require referendum approval by voters in just one of the consolidating municipalities, rather than voters from all of the consolidating municipalities. Recently, HB 5777 was amended to eliminate the language requiring only one municipality's voters to approve the consolidation, restoring the previous language. The amended bill also requires filing of the referendum petition only in the county where the largest municipality is located, and includes a 22 month "waiting period" on filing another referendum petition if the referendum fails, with certain exceptions.

The bill, as amended, passed the Illinois house and now moves to the Illinois senate.

Post Authored by Julie Tappendorf

Wednesday, May 2, 2018

Records Pertaining to Housing Task Force Subject to FOIA

An appellate court recently issued an opinion finding a "housing task force" of a municipality to be a public body subject to FOIA. City of Danville v. Madigan, 2018 IL App (4th) 170182.

A FOIA request was filed with the City in 2015 requesting copies of documents relating to the City's housing task force, including meeting notices, minutes, and all electronic communications between members of the task force and City employees or officials. The City denied the request on the basis that the records were not "public records" because the task force was not a public body subject to FOIA. The requester appealed to the Attorney General's PAC office, which found the City in violation of FOIA. Specifically, the PAC stated that the records were in the possession of the City, and related to business of the City, so the City was obligated to respond to the FOIA request. We reported on the PAC's binding opinion on the blog here. A circuit court agreed with the PAC, and the City appealed to the appellate court.

The appellate court first considered, and rejected, the City's argument that since the housing task force was not a public body, the records were not subject to FOIA. The court noted that the FOIA request was submitted to the City, not the task force, and the City is clearly a public body. 

So, in the court's view, the relevant issue was not whether the task force was a public body but whether the requested records were "public records" subject to FOIA. Based on the definition of "public records," documents are subject to FOIA if they pertain to the "transaction of public business." The court determined that they did pertain to public business because the task force's express mission was to make recommendations to the City on its housing strategy - a public interest rather than a private one. The court also determined that the City was "in possession of" the public records for purposes of FOIA. 

The court did not agree with the City's argument that its ruling would open up every piece of paper in City hall to inspection by the public, since there were exemptions that might apply to a particular record. 

Post Authored by Julie Tappendorf

Tuesday, May 1, 2018

Coming Soon: Ancel Glink’s New Podcast “Quorum Forum”

We are excited to report that Ancel Glink will soon be releasing our new podcast - “Quorum Forum.” Some of you may be wondering – what’s a podcast?  A podcast is like an “audio” blog but instead of reading about current legal topics of interest to local government officials and employees, you will listen in as Ancel Glink attorneys discuss these issues.

We just finished recording our first podcast episode last week and it will “go live” shortly. In our first episode, we highlight a few cases and pending bills, and engage in a discussion about the use of personal cell phones to communicate about government business.

You won’t want to miss episode one (or any of our future episodes), so stay tuned on this blog for more information about how you can subscribe so you can listen in.

Post Authored by Julie Tappendorf