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Thursday, August 30, 2018

PAC Orders Release of Unredacted Copy of Settlement Agreement

In PAC Op. 18-010, the PAC found a public body in violation for FOIA for not disclosing the details about claims that were the subject of a settlement agreement.

A union organization filed a FOIA request seeking records pertaining to a settlement agreement between a school district and its former principal. The district provided a redacted copy of the settlement agreement but did not cite an exemption for the redactions in the initial response. In a supplemental response, the district cited 7(1)(c) claiming that the redacted information was protected because release would constitute an unwarranted invasion of personal privacy.

The union appealed to the PAC, which reviewed the unredacted copy of the agreement. The PAC noted that the redacted information described the nature of the principal's allegations against the district in broad, general terms but did not detail any circumstances or events giving rise to the allegations. The PAC rejected the district's argument that the issues surrounding the allegations were sensitive and highly personal in nature, and determined that the public had the right to see the terms that led to the district paying a settlement to the former employee in exchange for his resignation. The PAC concluded that the redacted information was not exempt under 7(1)(c) of FOIA and ordered the district to release an unredacted copy of the settlement agreement. 

Wednesday, August 29, 2018

Amendments to Library District Trustee Qualifications

Illinois recently enacted P.A. 100-0746 which amends the Public Library District Act of 1991.

The new law provides that a person is not eligible to serve as a library trustee in a library district unless:
  • he or she is a qualified elector of the library district; and 
  • has resided in the library district at least one year at the time he or she files nomination papers or a declaration of intent to become a write-in candidate or is presented for appointment.

 In addition, a person is not eligible to serve as a library trustee for a library district if:
  1. at the time of his or her appointment or filing of nomination papers or a declaration of intent to become a write-in candidate, is in arrears in the payment of a tax or other indebtedness due to the library district; or
  2.  has been convicted of any infamous crime, bribery, perjury, or other felony.

This law applies to trustee candidates who file nomination papers by petition or write-in candidates in the Consolidated Election of 2019 and to all appointees to a vacant trustee position who are appointed after the effective date of this amendment.

The law took effect immediately upon becoming law on August 10, 2018.

Tuesday, August 28, 2018

7th Circuit Upholds Smart Meter Program Against Constitutional Challenge

A group of concerned citizens sued the City of Naperville claiming that the City's smart meter program constituted an illegal search under both the U.S. and Illinois constitutions. Specifically, the citizens argued that the City's collection of data and recording of energy consumption levels at individual homes through the smart meters reveals "intimate personal details of the City's electric customers." The district court had dismissed the complaint and denied the citizens request to amend their complaint. The citizens appealed to the Seventh Circuit Court of Appeals. In a recent decision, the Seventh Circuit found that (1) the smart meter program was a search under the constitution but that (2) the search was reasonable. Naperville Smart Meter Awareness v. City of Naperville, 7th Cir. Aug. 16, 2018.

In determining that the smart meter program was a search, the Seventh Circuit looked at the type of data the program collected. Specifically, the smart meter program collected data at 15 minute intervals, and that data could be used by law enforcement to conclude that an occupant was, for example, using halide lights to grow marijuana based on the amount of energy coming from the home. 

The court did not stop the analysis there, however, Although the program constituted a "search," if that search was "reasonable," then the City could collect the data without a warrant. In this case, although residents have a privacy interest in their energy consumption data, the data is not collected for "prosecutorial intent." Moreover, the City's interest in collecting the data through the smart meter program was in furtherance of the City's modernization of the electrical grid, an important government interest of both the City and the federal government. Monitoring energy consumption is important in reducing outages and strain on the energy grid, as well as reducing costs to consumers, among other important government interests. The court rejected the citizens' argument that the search was unreasonable in this case because the City requires installation of smart meters. 

In sum, although the City's smart meter program was considered a "search," the court found that it was a reasonable one and does not require a warrant.

Post Authored by Julie Tappendorf

Monday, August 27, 2018

New Publication Requirements for Severance Agreements

In January, we reported on HB 4242 that would amend FOIA to require units of local government  to publish notice within 72 hours of approving a severance agreement involving the payment of money to a government employee or contractor accused of sexual harassment or sexual discrimination. 

Last week, HB 4242 was enacted into law as P.A. 1040, with an effective date of August 23, 2018. The approved version of this legislation is changed from what was originally introduced and reported on by Municipal Minute.  We have included a summary of the law in the form enacted below.

As enacted, the law requires the local government to (1) post notice on the government's website and (2) make available to the news media for inspection and copying the following information about the severance agreement and payment within 72 hours of approving the severance agreement:
  1. the name and title of the person receiving the payment;
  2. the amount of the payment; and
  3. that the person receiving payment has been found to have engaged in sexual harassment or sexual discrimination (the original bill only required accusation of this conduct); and
  4. the date, time, and location of the meeting at which the separation or severance agreement was approved.
The new requirements are incorporated into the Local Records Act, the statute that governs records retention and preservation by local governments. (The earlier version of the bill would have amended Freedom of Information Act.) 

Also new in the enacted version are certain exceptions that allow the local government to withhold the information if disclosure would:

1. interfere with pending or actually and reasonably contemplated law enforcement proceedings;
2. interfere with pending or actually and reasonably contemplated legal or administrative proceedings initiated by the complainant;
3. result in disclosure of the complainant's identity (unless he or she consents); or
4. endanger the life or physical safety of the complainant.

The law states that the law does not supersede confidentiality provisions of the severance agreement but also does not limit disclosure of records required to be disclosed under FOIA. It's not clear how these two provisions work in the context of the remainder of this statute or even with each other.

Any local government approving a severance agreement that falls within this new law would be advised to consult with its attorney to ensure compliance with these new requirements, whether that means disclosure of the required information or determination that one of the exceptions apply.

Friday, August 24, 2018

Illinois Legislature Amends Governmental Account Audit Act

Recently, amendments to the Governmental Account Audit Act became law when they were approved by the Illinois Governor on August 13, 2018. P.A. 100-837.

Under the new law, a government may file an audit report based on a government's selection of the accrual, cash, or modified cash basis of accounting.  This new law is in response to the Office of the  Illinois Comptroller’s change of practice to require audited financial statements using accrual basis accounting. This law clarifies that local governments can continue submitting audited financial statements with the Comptroller’s Local Government Division using cash basis accounting. However, local governments who file audited financial statements using accrual basis accounting after June 30, 2019 will be required to continue filing audited financial statements using accrual basis accounting.

This Act took effect immediately upon becoming law on August 13, 2018.

Post Authored by John Reding and Julie Tappendorf

Thursday, August 23, 2018

Changes to Non-Resident Library Fees

On August 14, 2018, the Illinois General Assembly enacted P.A. 100-0875, which amends both the Illinois Local Library Act and the Public Library District Act of 1991.

Under the new law, a nonresident fee will not be applied to a nonresident who owns or leases property that is taxed for library service. Prior to the enactment of this law the nonresident fee was only waived for the actual owner of the taxable property instead of those who also lease property. The nonresident owner or leaseholder must present either the most recent tax bill for the property or a copy of the commercial lease.

The law also removes the limit of nonresident library privileges to only one nonresident for each parcel of taxable property. Now, multiple nonresident owners or lessors at a single property are able to use library services.

This Act took effect immediately upon becoming law on August 14, 2018.

Post Authored by John Reding and Julie Tappendorf, Ancel Glink

Wednesday, August 22, 2018

Illinois Supreme Court Issues Ruling in Sidewalk Case

Recently, the Illinois Supreme Court decided whether the Tort Immunity Act immunized the City of Danville from liability for failing to repair a sidewalk. Monson v. City of Danville.

In 2012, Barbara Monson was shopping in the City of Danville. As she was walking on the sidewalk she tripped and sustained multiple injuries. Plaintiff sued the City for negligence and willful and wanton conduct for failing to maintain the sidewalk in a reasonably safe condition.

Prior to her injuries, in 2011 two City employees, the superintendent of downtown service and the director of the public works department, began a project to repair sidewalks in the downtown area. The public works director made the final decisions about which sections of sidewalk would be repaired. The director testified that he used his discretion as the public works director not to replace the portion of sidewalk where Monson was injured.

The trial court ruled in favor of the City, finding the City immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act. Sections 2-109 and 2-201 of the Act immunize a public entity from liability for the discretionary acts or omissions of its employees. Plaintiff appealed the decision up to the Illinois Supreme Court which recently reversed the ruling in favor of the City.

The City had argued that the City’s alleged acts or omissions were discretionary under 2-201 of the Tort Immunity Act because the decision to repair certain portions of the sidewalk and leave other portions alone was a matter of policy within its employees’ discretion. But the Court held that while decisions involving repairs to public property can be a discretionary matter subject to immunity, in this case, the City had not met its burden of establishing that the alleged acts or omissions constituted an exercise of discretion within the meaning of section 2-201.

The City also asked the Court to uphold the lower court’s order on the basis that the allegedly defective sidewalk was de minimis. However, the Court concluded that genuine issues of material issues of fact exist with respect to whether the sidewalk defect was de minimis and as a result the City was not entitled to a judgment as a matter of law on this issue.

The case now goes back to the trial court to rule on the City's argument that the defect was "open and obvious."

Post Authored by John Reding and Julie Tappendorf, Ancel Glink

Tuesday, August 21, 2018

Law Restricts Posting of Mugshots on Police Social Media Sites

The Illinois General Assembly recently enacted P.A. 100-927 which prohibits police departments from posting mugshots on their department's social media site that were taken in connection with a civil, petty, or business offense or a Class B or C misdemeanor except where the posting of the mugshot is for the purpose of assisting in the search for a missing person or for an individual wanted in relation to a crime. 

Post Authored by Julie Tappendorf

Monday, August 20, 2018

Podcast Episode 8 Just Released: Unions Dues and Don'ts

Ancel Glink's Quorum Forum Podcast just released Episode 8 titled "Union Dues and Don’ts." You can listen to this episode on our Quorum Forum website here.  

Below is a summary of the episode:

In the past, public employees refusing to join the union were often required to pay “fair share” fees, sometimes amounting to 80% of a full union member’s dues. That recently changed with the Supreme Court’s decision in Janus v. AFSCME. In Episode 8, Ancel Glink attorneys talk about this important case, among other employment-related issues of importance to local government officials and employees.

Local government employers and employees can read more about this decision at workplacereport.ancelglink.com.

Don't forget to send questions and show ideas to podcast@ancelglink.com!

Friday, August 17, 2018

Elected Township Officials Prohibited From Being Employed by Township

Given the activity at the Illinois General Assembly, we will have a number of new laws to report on over the next few days/weeks. Today, we report on a new law affecting elected township officials.

Pursuant to P.A. 100-868, township officials who are elected to a township position (or appointed to fill a vacant elected position) are prohibited from also being employed by the township. The prohibition applies to township trustees, supervisors, highway commissioners, clerks, assessors, and collectors. The law becomes effective January 1, 2019.

Post Authored by Julie Tappendorf

Thursday, August 16, 2018

Facebook Post Threatening Witnesses Costs Poster $17,000 in Sanctions

In a recent lawsuit that alleged employment discrimination and retaliation against a government employer, the court ordered the plaintiff to pay just under $17,000 in sanctions for posting threats on Facebook targeted at potential witnesses in her lawsuit. Emerson v. Dart, (7th Cir. Aug. 14, 2018).

Emerson, a correctional officer in Cook County, Illinois, filed a lawsuit against the County alleging retaliation in violation of her civil rights suit. The case proceeded to discovery. Shortly after learning the County was questioning co-workers as potential witnesses, she posted to a Facebook group shared by more than 1,600 employees of the Cook County Department of Corrections the following:
To my fellow officers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES, (1) IS A SGT, (2) OFFICERS, (1) OPR INVESTIGATOR, on the job 18mths, this fight is from 2009 & I’ve been off since 2012, sooooo do the math. Yes, I will definitely put your name out there in due time [emoji]. This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL. SO GLAD THAT THE ARROGANCE OF THIS EMPLOYER HAS THEM BELIEVING THEIR OWN [emoji]
The County asked the judge for sanctions against Emerson for witness tampering. The circuit court  ruled in the County's favor and ordered Emerson to pay just short of $17,000 in sanctions to the County (the amount the County incurred in attorneys' fees relating to the misconduct). 

On appeal, the Seventh Circuit Court of Appeals upheld the sanctions award, finding Emerson's Facebook post to be a "bald effort to keep witnesses from testifying." The appellate court also upheld the amount of the sanction, finding the County's report of time spent litigating the sanctions issue to be acceptable.

Facebook may be "free," but that doesn't mean certain conduct on Facebook won't cost you.

Post Authored by Julie Tappendorf

Wednesday, August 15, 2018

Government Severance Pay Act Becomes Law in Illinois

Yesterday, the Government Severance Pay Act became law when it was approved by the Illinois Governor. P.A. 100-895. We reported on this legislation when the bill was introduced earlier this year.

Under the new law, any covered unit of government that enters into a contract or employment agreement, or renews or renegotiates an existing contract or agreement, with an officer, agent, employee, or contractor must include the following provisions in the contract:

(1) a requirement that severance pay may not exceed an amount greater than 20 weeks of compensation; and
(2) a prohibition on payment of severance pay if the individual has been fired for misconduct by the unit of government.

Misconduct is defined in the new law to include, among other things, the following:
  • conduct that is a deliberate violation or disregard of reasonable standards of behavior of an employee
  • intentional and substantial disregard of the employer's interests or the employee's duties
  • chronic absenteeism or tardiness in deliberate violation of known policy after a reprimand
  • willful and deliberate violation of a state standard or regulation
  • violation of the employer's rules
  • other conduct, including criminal assault or battery on an employee, customer, invitee or abuse or neglect of someone under the employee's professional care.
The Act applies to all state agencies, units of local government (i.e., counties, municipalities, townships, special districts), school districts, and other bodies created by state statute or state constitution.

The new law does not appear to apply to existing employment agreements between government bodies and employees, although a unit of government would have to comply with the new contractual requirements when renewing or renegotiating an existing employment agreement. That will certainly affect the negotiations between employers and employees in any renewal of an existing employment agreement that includes a severance pay provision in excess of 20 weeks.

The text of the new law (without definitions) is set out below:
Section 10. Severance pay.

(a) A unit of government that enters into a contract or employment agreement, or renewal or renegotiation of an existing contract or employment agreement, that contains a provision for severance pay with an officer, agent, employee, or contractor must include the following provisions in the contract:
     (1) a requirement that severance pay provided may not exceed an amount greater than 20 weeks of compensation; and
    (2) a prohibition of provision of severance pay when the officer, agent, employee, or contractor has been fired for misconduct by the unit of government.
(b) Nothing in this Section creates an entitlement to severance pay in the absence of its contractual authorization or as otherwise authorized by law.
The law takes effective January 1, 2019.

Post Authored by Julie Tappendorf

Monday, August 13, 2018

Top 10 Posts of 2018 To-Date

It's been awhile since we've done a "top 10" list of the most popular blog posts. Today, we highlight the 10 most read posts of 2018, to-date, with a few updates:

Bill Would Prohibit Use of Public Funds For Employee Professional Development and Training Expenses

Update: This was by far the most read post of 2018, and the one that generated quite a bit of feedback from Illinois government officials and employees. As of 8/6/18, this bill doesn't seem to be active since it was referred to committee on 1/16/18. 

President's Blocking of Twitter Users Found Unconstitutional

Update: The White House unblocked the Twitter users following this ruling, but also appealed the decision, so stay tuned for a follow up.

Bill Proposes Local Government Email Act

Update: This bill had sat in committee since April until a couple of weeks ago when a new co-sponsor was added so there may be some life to this bill.

New OMA and FOIA Bills Introduced

Update: Neither of these bills have seen any activity or movement since April/May.

Teacher Fired for Social Media Posts About Student

Police Officers' Emails on Private Devices Subject to FOIA

Alderman Texts and Emails on Private Devices Not Subject to FOIA

City Not Liable for Flooding on Residents' Property

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

New Law Allows Website Posting for Prevailing Wage Ordinances

Friday, August 10, 2018

From The Workplace Report: NLRB Offers New Guidance Regarding Employee Handbooks

From Ancel Glink’s sister employment law blog, The Workplace Report With Ancel Glink: NLRB Offers New Guidance Regarding Employee Handbooks.

NLRB General Counsel Peter Robb recently issued a memorandum outlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision (365 NLRB No. 154 (Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here.

The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules.

Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh any relatively insignificant restrictions on those rights. Some of the examples mentioned in the memo include:
  • Rules prohibiting uncivil behavior (like the use of disparaging or offensive language)
  • No-photography rules and no-recording rules
  • Rules against insubordination or other on-the-job conduct that negatively affects the workplace
  • Disruptive behavior rules (like creating a disturbance or causing problems with clients or co-workers)
  • Rules protecting confidential, proprietary, and customer information or documents
  • Rules against defamation or misrepresentation
  • Rules against using employer logos or intellectual property
  • Rules requiring authorization to speak for the company
  • Rules banning disloyalty, nepotism, or self-enrichment
Category 2 (Case-by-Case) Rules: These rules are not clearly lawful or unlawful. Rather, the employer’s and employees’ interests must be weighed on a case-by-case basis to determine whether the rule is justified. Examples of such rules include:
  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in or voting for a union
  • Confidentiality rules regarding employer business or employee information (as opposed to confidentiality rules regarding customer or proprietary information [which are generally lawful], or confidentiality rules directed at employee wages, terms of employment, or working conditions [which are generally unlawful])
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of fellow employees)
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark)
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations)
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)
Category 3 (Unlawful) Rules: These rules are generally unlawful because they restrict the employees’ rights severely enough to outweigh any potential employer justifications for them.  The memo provides only two examples of rules that fit this category:
  • Confidentiality rules specifically regarding wages, benefits, or working conditions
  • Rules against joining outside organizations or voting on matters concerning the employer
Although these guidelines do not apply to government employers, state labor boards often refer to NLRB guidelines and rulings in evaluating government rules. So, it might be worth taking a look at your employee handbook to see if you need to update or modify it.

Original Post Authored by Matt DiCianni, Ancel Glink

Thursday, August 9, 2018

School Security Agent Not Entitled to PSEBA or PEDA Benefits

In a recent case, an appellate court denied PSEBA and PEDA benefits to a school security agent/truant officer, finding that the school employee was not a "law enforcement officer" entitled to benefits under either state law. Stimeling v. Peoria Public Sch. Dist. 150.

The Peoria Public School District employed security agents as part of the school's "police department." After learning that it had no authority to operate a police department, the District inactivated the police department and stopped providing police training to its security agents. One of its security agents incurred an injury while on duty, and filed for benefits under the Public Safety Employee Benefits Act (PSEBA) and the Public Employee Disability Act (PEDA). The District denied the request, and the employee filed a lawsuit, arguing that he was a "law enforcement officer" under both statutes and was, therefore, entitled to benefits.

Both the trial court and the appellate court ruled against the employee, finding that he was not a police officer or law enforcement officer under either statute. The appellate court noted that the District was not statutorily authorized to establish a police department or to employ law enforcement officers. As a result, the employee was not an eligible employee entitled to benefits under either statute.

Wednesday, August 8, 2018

Did You Hear the One About the Priest Who Walked into a Bar?

For decades, the Illinois Liquor Control Act contained restrictions against locating a new licensed establishment in proximity to a church or school.  235 ILCS 5/6-11.  Despite this restriction, Section 6-11 of the Liquor Control Act also contained dozens of exceptions to this rule which were enacted by the General Assembly and approved by a sitting Governor.  That’s right – each time a business which planned to sell beer, wine or liquor wanted to operate near a church or school, it took an act of the legislature to grant permission.

Finally, by broad bipartisan votes, the State of Illinois has granted local liquor control commissioners the ability to relax this restriction.  Public Act 100-663, which became law last week, allows a local liquor control commissioner to grant an exemption to the prohibition if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.

So, if a community wants to exercise greater local control, it must adopt an ordinance that delegates authority to the Mayor or Village President (local liquor commissioner) to grant exceptions to the proximity rules described in Section 6-11. The law does not describe any limitations on the scope of local control, so the exceptions granted by the local liquor commissioner may be partial or complete and can be subject to conditions.

Post authored by Adam Simon, Ancel Glink

Tuesday, August 7, 2018

City and Park District Not Liable for Alleged Defective Design of 606 Trail

Guzman was running on the Bloomingdale Trail (also known as the “606 Trail”) when a bicyclist struck her from behind and she was injured. Guzman sued the Chicago Park District, the City of Chicago, the bicyclist that struck her as well as Collins Engineering, the project manager for the development of the 606 Trail.

The Park District argued the case should be dismissed Section 3-106 of the Illinois Tort Immunity Act. That statute says that a public entity or employee will not be liable for an injury if the claim is based on a condition of any public property intended or permitted to be used for recreational purposes except where the public entity is guilty of willful and wanton conduct. The circuit court agreed and dismissed the case, and Guzman appealed.

Although Guzman admitted that the 606 Trail is public property used for recreational purposes, she argued that the design of the trail was too narrow to provide sufficient space for users to pass one another, is not a “condition” within the meaning of the Tort Immunity Act. Guzman specifically argued that the term “condition” refers to things that are actually on the trail itself, such as snow, but her argument was that the 606 Trail design was defective.

On appeal, the appellate court examined a series of cases where the claims were not based on activities conducted on recreational property, but rather based on the recreational property’s design or construction, including claims that a sidewalk was built too high, a midblock crosswalk was negligently misplaced and that a golf box tee was placed in a dangerous location for spectators.  In all of these cases, courts have found that immunity applied to bar lawsuits related to the construction of recreational property. Based on these cases, the court that the Tort Immunity Act barred Guzman’s claims of defective design and both the Park District and City of Chicago were immune from liability.

Post Authored by Christy Michaelson, Ancel Glink

Monday, August 6, 2018

New Podcast: What's the Big Deal with Small Cells?

The increased demand for wireless services means that street lights, utility poles, buildings, and more are now home to small wireless facilities. Ancel Glink's telecommunications attorney Adam Simon stops by a regular meeting of our podcast, Quorum Forum, to discuss how municipalities can regulate these small cells. We also go "In the Zone" with Ancel Glink attorney Greg Jones for the latest in economic development from Ancel Glink's land use newsletter.

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

You can also subscribe to "In the Zone," Ancel Glink's land use newsletter at inthezone@ancelglink.com