November 2019 ~ Municipal Minute

Tuesday, November 26, 2019

PAC Finds No FOIA Violation Where Internet Logs Do Not Exist

Tuesday, November 26, 2019 Julie Tappendorf

In a recent advisory (non-binding) PAC opinion, the Public Access Counselor of the Attorney General's office found in favor of a public body in a FOIA dispute involving a request for "internet logs." 2019 PAC 58425

A requester had filed a FOIA request asking a township to provide copies of "internet activity logs" of the supervisor and board of trustees. After the township responded that it had no responsive records, the requester filed a request for review with the PAC. The township responded that it had contacted its IT consultant to search the township's computer system and found no responsive records for the requested time-frame. The township explained that the township's network deletes all internet history records on a daily basis, so no records existed. The requester claimed that the township was obligated to retain and maintain browsing history information.

The PAC first noted that the PAC's authority is limited to alleged violations of FOIA and OMA, and does not extend to allegations of violations of records retention laws such as the Local Records Act. Here, the township conducted a reasonable search for the requested records, and there was no evidence that the records existed at the time of the search. As a result, the PAC found no violation of FOIA.

Disclaimer: Ancel Glink represents the township in this case

Freedom of Information

Monday, November 25, 2019

Court Awards Cable Franchise Fees to Village over County

Monday, November 25, 2019 Julie Tappendorf

In Village of Campton Hills v. Comcast, the Illinois Appellate Court clarified the application of Section 5-1095 of the Counties Code and awarded five-year’s worth of franchise fees to the Village.

The facts in this case occurred over a long period of time. Originally, the County and Comcast approved a cable franchise in 1988 that had a 15 year term. The franchise agreement covered unincorporated territory which included an area that later came within the boundaries of the Village. Once the original term expired, the County adopted a series of one year resolutions designed to extend the term of the franchise. In 2007, the Village was incorporated by referendum. The Village and Comcast subsequently approved a new cable franchise agreement that became effective January 1, 2008. Despite the new Village franchise agreement, Comcast continued to pay franchise fees to the County. As a result, the Village sued Comcast demanding payment of the franchise fees. Comcast added the County to the case and asked the Court to declare the parties’ rights.

Section 5-1095(a) of the Counties Code provides in relevant part:

(a) The County Board may license, tax or franchise the business of operating a community antenna television system or systems within the County and outside of a municipality, as defined in Section 1-1-2 of the Illinois Municipal Code.

When an area is annexed to a municipality, the annexing municipality shall thereby become the franchising authority with respect to that portion of any community antenna television system that, immediately before annexation, had provided cable television services within the annexed area under a franchise granted by the county, and the owner of that community antenna television system shall thereby be authorized to provide cable television services within the annexed area under the terms and provisions of the existing franchise. In that instance, the franchise shall remain in effect until, by its terms, it expires, except that any franchise fees payable under the franchise shall be payable only to the county for a period of 5 years or until, by its terms, the franchise expires, whichever occurs first. After the 5 year period, any franchise fees payable under the franchise shall be paid to the annexing municipality.

The trial court ruled in favor of the Village and granted the franchise fees to the Village. The Appellate Court affirmed, explaining as follows:

the first sentence of section 5-1095(a) granted the County the authority to franchise and tax Comcast but limited that authority to areas 'within the County and outside of a municipality.' . . . In November 2007, the County’s franchise (extended by resolution) expired. The County’s attempt to pass an extension in December 2007 was after the prior extension’s expiration and was ineffective as to property within the Village. Therefore, when the Village passed its Comcast franchise ordinance, effective January 1, 2008, it was the only effective franchising authority and the only entity entitled to collect fees from that time forward.

The Appellate Court also stated that:

in April 2007, a part of the County’s [franchise] area was incorporated as the Village. Thus, pursuant to “law,” section 5-1095(a) of the Counties Code, that part of the area was no longer subject to the County’s franchise agreement. However, the incorporation of the Village did not impact the County’s franchise agreement with respect to the parts of the County that remained unincorporated. Thus, the trial court did not improperly modify the County’s franchise agreement with Comcast; rather, it ruled in conformity with the contract and the law.

As a result, the Court decided that the Village was entitled to all of the franchise fees related to cable subscribers within its jurisdiction from 2008 through 2012, the disputed five year period. In addition, the Court found that the County is required to reimburse Comcast for all of the wrongfully paid franchise fees during that time. The Court did not address the issue the Village raised as to whether incorporation and annexation are the same for interpretation purposes, finding it unnecessary to decide based on its ruling in favor of the Village.

Post Authored by Adam Simon, Ancel Glink

Disclaimer: Ancel Glink represented the Village in this case.

Friday, November 22, 2019

State of Illinois Commission to Study Ethics Laws

Friday, November 22, 2019 Julie Tappendorf

Yesterday we reported on a bill that would modify the state ethics statutes. The General Assembly also passed HRJ 93 to create a joint commission of the Illinois house and senate to review and make additional recommendations for changes to various state ethics statutes, including the State Officials and Employees Ethics Act, the Illinois Governmental Ethics Act, the Lobbyist Registration Act, and the Public Officers Prohibited Political Activities Act. Because many of these state statutes also apply to local government officials and employees, this commission and its findings will be of great interest to local governments.

It is interesting to note that although the commission includes a wide range of state officials (see below), the commission includes no local government representation even though most of these statutes also apply to local government officials and employees. It would be reasonable for the Governor to consider appointing local government representatives as his Governor-appointees to provide a local government perspective to such an important study.

Membership of the commission is as follows:

2 members of the GA appointed by the Speaker of the House
2 members of the GA appointed by the Senate President
2 members of the GA appointed by the House Minority Leader
2 members of the GA appointed by the Senate Minority Leader
2 members from the Attorney General's office appointed by the AG
2 members of the Secretary of State's office appointed by the SOS
4 members appointed by the Governor

Ethics / Personnel

Thursday, November 21, 2019

Bill Would Modify Local Government Ethics Reporting Deadline

Thursday, November 21, 2019 Julie Tappendorf

Illinois SB 730 was just passed by the General Assembly and is now at the Governor's office awaiting signature. The bill proposes a number of changes to the Illinois Governmental Ethics Act, including one that would impact units of local government. If signed, the bill would establish a set date each year (on or before February 1st) by which the chief administrative officer of a unit of local government must file with the county clerk the names of those officers and employees who must file statements of economic interest with the local government unit on an annual basis.

Wednesday, November 20, 2019

Local Governments Prepare Responses to Cannabis Trailer Bill

Wednesday, November 20, 2019 Julie Tappendorf

During last week’s veto session, the General Assembly approved a “trailer bill” making technical and other changes to the legislation passed earlier this year authorizing recreational cannabis in Illinois. While the trailer bill still awaits the Governor’s signature as of this writing, local governments should start thinking about how the bill may affect their responses to recreational cannabis.

Cannabis Businesses Regulations

On-Premises Consumption

The trailer bill clarifies that municipalities may authorize on-premises consumption at a cannabis dispensary or at a “retail tobacco store” as defined in the Smoke Free Illinois Act. Many cigar lounges and hookah lounges are considered “retail tobacco stores.” The amendment ends speculation about whether a municipality could authorize on-premises cannabis consumption at a typical bar or restaurant and confirms that only authorized dispensaries and retail tobacco stores can have on-premises consumption. Importantly, the amendment would not change the authority of municipalities to prohibit or strictly regulate on-premises cannabis consumption.

Cannabis Business Definitions

The trailer bill also adds “infusers” to the definition of “cannabis business establishments,” confirming that local governments can adopt ordinances governing time, place, manner, and number of cannabis infusers, in addition to other cannabis business establishments.

Cannabis Taxes

Dispensary Sales Tax

From the tax perspective, the trailer bill would allow municipalities and counties to file their certified cannabis sales tax ordinances with the Department of Revenue on or before:

April 1 for enforcement beginning July 1; or

October 1 for enforcement beginning January 1.

Under the original law, enforcement of local cannabis sales taxes would not have started until September 1, 2020 at the earliest. While the trailer bill advances the start of local cannabis sales taxes, tax enforcement still does not coincide with the start of authorized cannabis sales on January 1, 2020.

Home Rule and Non-Home Rule Sales Tax

While food for off-premises consumption is typically subject to a lower one percent sales tax, the trailer bill confirms that “food consisting of or infused with adult use cannabis” would be subject to the ordinary home rule or non-home rule sales tax rate.

Local Enforcement Ordinances

Local governments may want to review their ordinances to ensure consistency with the state’s new cannabis laws, and to enforce appropriate cannabis laws locally through adjudications or circuit court. The trailer bill addresses a few issues local governments should consider for their own ordinances.

Cannabis Paraphernalia

Under the trailer bill, adults will be able to possess and use cannabis paraphernalia, in addition to cannabis for personal use, beginning January 1, 2020. Some municipalities have locally adopted provisions of the “Drug Paraphernalia Act” prohibiting most drug paraphernalia possession, and the trailer bill amends the Act to exclude “cannabis paraphernalia” from the definition of “drug paraphernalia.” If this legislation is approved, local governments should make sure their drug paraphernalia ordinances are consistent with state law.

Cannabis Use Prohibited in Parks

Using cannabis in any public place is prohibited, except in a dispensary or retail tobacco store authorized by a local government. “Public place” means any place where a person could reasonably be expected to be observed by others, including all parts of local government buildings. The trailer bill includes amendments explicitly making all local government parks, recreation areas, wildlife areas, or playgrounds a “public place” where cannabis use is prohibited.

Advertising

State law restricts cannabis business advertising, including advertising near schools, playgrounds, and other listed sensitive places. However, the trailer bill confirms that “advertising” does not include the display of exterior signage displaying only the name of the licensed cannabis business.

Automatic Expungements

The trailer bill does not change the schedule for law enforcement agencies to automatically expunge records for certain minor cannabis possession offenses. The first deadline of January 1, 2021 requires expungement of records created on or after January 1, 2013 and prior to June 25, 2019.

The trailer bill does confirm that, in response to an inquiry for expunged records, the law enforcement agency should reply as it does in response to inquiries when no records ever existed; however, the agency must provide a certificate of disposition or confirmation that the record was expunged to the individual whose record was expunged if such a record exists.

Employment Policies

Public Safety Employees

The Cannabis Regulation and Tax Act does not authorize law enforcement officers, corrections officers, probation officers, or firefighters to use cannabis while on duty. The Right to Privacy in the Workplace Act prohibits discrimination against all employees for the use of “lawful products,” including cannabis, during non-working and non-call hours. Employees can be awarded actual damages, costs, and attorney’s fees for willful and knowing Right to Privacy Act violations.

The trailer bill would amend the Cannabis Act to state that “nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer's policies.” While nothing in the Cannabis Act prevents a public employer from disciplining the listed public safety employees for off-duty cannabis use, the trailer bill would not change the protections provided in the Right to Privacy Act.

Arguably, the General Assembly did not intend to adopt the trailer bill language only to have it rendered meaningless by the Right to Privacy Act. However, public employers should consult their attorneys before adopting policies that discipline the listed public safety employees for use of cannabis during non-call and non-working hours due to potential liability under the Right to Privacy Act.

In addition, the trailer bill would prohibit discipline for the listed public safety employees based solely on the lawful possession or consumption of cannabis by members of the employee’s household. The bill would also confirm that the Cannabis Act does not limit the right to collectively bargain the subject matters contained in the Cannabis Act.

Random Drug Testing

If passed, the trailer bill would provide that the Cannabis Act will not create or imply a cause of action against an employer based on its reasonable workplace drug policies, including:

subjecting employees or applicants to reasonable drug and alcohol testing;

reasonable and nondiscriminatory random drug testing; and

discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.

This most-recent proposed legislation will hardly be the last word on cannabis, so stay tuned to Ancel Glink’s Municipal Minute and Workplace Report blogs as courts and the General Assembly continue to develop the state’s new cannabis laws.

Authored by Daniel J. Bolin and the Ancel Glink Cannabis Response Team

Finances / Land Use and Environmental / Personnel

Tuesday, November 19, 2019

IDOR Issues Draft Rules on Parking Excise Tax

Tuesday, November 19, 2019 Julie Tappendorf

Last week, we reported on draft legislation to amend the new parking excise tax statute that would make it clear that municipalities and other units of government are exempt from the excise tax - an issue that many local governments had raised since the initial legislation was enacted. Unfortunately, the legislative "fix" has not yet been enacted and it's getting closer and closer to the January 1st effective date of the parking tax.

Last Friday, the Illinois Department of Revenue issued draft rules on implementation of the parking excise tax that may address some local government concerns.

The IDOR issued a Notice of Proposed Rules that included draft rules relating to implementation of the parking excise tax. You can read the rules here. The important language for local governments is contained on page 13243 of the draft rules, which states as follows:

Any person, except the federal government, the State, municipalities, counties, and special districts, who engages in the business of operating a parking area or garage for consideration, or who, directly or through an agreement or arrangement with another party, collects the consideration for parking or storage of motor vehicles, recreational vehicles, or other self-propelled vehicles, at that parking palace, must collect and remit the tax imposed on the purchaser of the parking space. If the federal government, the State, municipalities, counties or special districts enter into an agreement with a third-party to operate the parking area or garage, the third-party must collect and remit the tax. Persons that operate 3 or fewer parking spaces are exempt from collecting the tax.

As you can see, the language of the "exemption" in the IDOR's draft rules is different than the exemption contained in the draft legislative "fix." In the draft rules, municipalities are exempt from the parking tax regardless of the amount of the parking fee imposed, where the legislative fix would only exempt parking fees that were at or below the legislative threshold. And in the draft rules, the tax would apply to municipal parking areas or garages where the municipality has an agreement with a third-party to operate the parking area or garage. The draft rules include an example that might assist municipalities trying to understand the scope of the "third party" operator agreement "exemption from the exemption" - see below:

EXAMPLE 5: A municipality owns and operates a parking area. It retains a company to install machines on the lot that accept electronic payments. The company also provides a mobile application that permits a person to pay for parking electronically. All payments made by a customer either by using the machine on the lot or the mobile application are paid to the municipality. The municipality pays the company a fee for its services. The municipality is the operator of the lot and, pursuant to Section 195.115(b), is not required to collect and remit the tax.

It remains to be seen how the two different exemption schemes can be reconciled but as we've said before, we will keep you posted.

Monday, November 18, 2019

PAC Provides Guidance on "General Subject Matter" for Agenda Items

Monday, November 18, 2019 Julie Tappendorf

The PAC issued its 12th binding opinion last week finding a municipality in violation of OMA for not identifying the general subject matter of an ordinance that was voted on at a city council meeting agenda. PAC Op. 19-012.

A complaint was filed with the PAC after an August 20, 2019 city council meeting where the council voted on an ordinance that increased permit application fees. The complainant argued that the agenda was not sufficiently descriptive to provide the public with advance notice of the general subject matter of the ordinance to be voted on, as required by section 2.02(c), which requires as follows:

Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting. 5 ILCS 120/2.02(c).

The PAC reviewed the city council's meeting agenda for the August 20th meeting, including the questioned agenda item. The agenda stated as follows for the ordinance in question:

d. Consider and act on Ordinance 19-11 to Amend Section 33-4-4(F)

The PAC analyzed the OMA requirement of "general subject matter," acknowledging that the OMA does not define that phrase and that there is no commonly understood meaning for the phrase. Finding the phrase ambiguous, the PAC reviewed the statute's legislative history, finding that one senator stated that the provision was intended to allow people who follow their units of local government to "know what they're going to be acting upon."

The city argued that the item was descriptive enough because the public could consult the section that was proposed to be amended to determine the general nature of the matters. The PAC disagreed, finding that it wasn't clear that the section reference was to the city code, and in any event, the agenda itself needs to identify the general subject matter without the public having to decipher it themselves. As a result, the PAC determined that the agenda was not sufficiently descriptive under the OMA.

It is worth pointing out that the PAC reviewed other items on the agenda and acknowledged that these other items did identify the subject matter of the item to be voted on. These included:

a. Consider and act on Resolution 19-07 Closed Session Minutes

b. Consider and act on Resolution 19-08 Authorizing the Destruction of Closed Meetings Sessions audio recording.

c. Consider and act on Resolution 19-06 Council Resolution of Support for CBD Grant

Based on this opinion, the city council could have added "....of the City Code regarding permit application fees" to the end of agenda item (d) and that would appear to satisfy the PAC's interpretation of 2.02(c)'s requirement that the item set forth the general subject matter of the resolution or ordinance. The PAC specifically noted that the amount of the increase in fees did not need to be identified on the agenda.

This opinion could provide valuable guidance to public bodies on what "general subject matter" means when describing agenda items. Simply stating that an ordinance is amending a particular section is not enough without identifying what is being amended and a brief description of the subject matter of the amendment.

Friday, November 15, 2019

Bill Would Restrict Local Authority Over Fence Alarms

Friday, November 15, 2019 Julie Tappendorf

A number of new bills are being introduced in the Illinois General Assembly, including some intended to address major pieces of legislation passed earlier this year, including the recreational cannabis law and the leveling the playing field statute that imposed numerous new taxes on Illinois residents. We will report on those as they move forward. Other bills with less public profile are also being introduced, including one that would affect municipal authority.

If passed, SB 2308 would prohibit municipalities and counties from requiring a permit for the installation of a battery-charged fence alarm or from imposing any installation or operational requirements on these alarms. It also restricts municipal and county authority to prohibit the installation or use of a battery-charged fence. The bill preempts home rule authority.

This is a pretty specific bill, and it was probably introduced to address a particular situation in one community. However, once it is enacted, it would restrict the authority of all municipalities and counties.

Land Use and Environmental

Thursday, November 14, 2019

Bill Would Exempt Most Government Parking Lots From Parking Excise Tax

Thursday, November 14, 2019 Julie Tappendorf

You will recall that we reported previously (here and here) on the new state legislation that imposed a parking excise tax on parking garages and lots. That tax would range between 6% and 9%, depending on the parking fee. We raised a question as to whether the tax would apply to municipally-owned and operated commuter lots and garages. In our opinion, the language of the statute was not broad enough to apply to lots and garages operated by government entities. However, there appeared to be some confusion about that at the state level and municipalities were receiving mixed-messages about the application of the tax. The Illinois Municipal League had suggested to Illinois legislators that an statutory amendment was necessary to ensure that municipal lots and garages were not covered by the tax.

The Illinois House just introduced HB3968 that would add a provision to address government parking lots and garages. If passed, parking lots or garages that are owned or operated by the federal government, state, municipality, RTA, Chicago park district, or any other government entity would be exempt from the tax if the parking fee does not exceed $3 for a 24 hour period or less, $15 for a weekly period, or $60 for a monthly period. It also exempts parking when the fee is paid by a federal, state, or local government entity.

This legislation will add certainty to this issue as municipalities have been receiving mixed messages as to whether the parking tax must be imposed and collected on commuters and others who use municipal parking lots and garages.

Tuesday, November 12, 2019

Local Government Law Institute on December 4th

Tuesday, November 12, 2019 Julie Tappendorf

Calling all local government attorneys! In less than a month, IICLE® will be hosting the 7^th Annual Local Government Law Institute on Wednesday, December 4th at the One North Wacker Conference Center (UBS Tower) in Chicago. A Springfield Simulcast and Live Webcast will also be offered.

Learn about hot topics in local government law, including legalized cannabis, risk assessment, #me too, cyber-security, eminent domain, and housing. The program also includes a panel discussion featuring the Public Access Counselor's staff. The faculty will discuss legal issues relating to government use of social media. Ancel Glink's very own Julie Tappendorf and Kurt Asprooth will be speaking at the program.

This program will offer 7 hours of MCLE credit, including 2 hours of Professional Responsibility credit. Included with your tuition, you can earn an additional hour of credit by watching IICLE's bonus e-learn session about affirmative litigation.

View the program e-brochure here: or register here or by calling 1-800-252-8062.

I hope to see you on December 4th!

Monday, November 11, 2019

FAQ on Employment-Related Issues with Adult Use of Cannabis

Monday, November 11, 2019 Julie Tappendorf

We have been getting a number of questions from our local government clients about employment-related issues with the upcoming legalization of cannabis in Illinois. The Workplace Report with Ancel Glink (our sister blog on labor and employment issues) recently posted a very helpful "FAQ" on this very issue, answering a number of these questions. You can read the blog post on that blog here or below. Don't forget to visit The Workplace Report with Ancel Glink and subscribe!

FAQs on Workplace Issues and Adult Use of Cannabis

The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1, 2020:

Can we still have a zero-tolerance employee drug policy?

Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work.

Should we still test for cannabis during post-employment drug and alcohol screens?

Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their system of evidence of cannabis use. This is long after the effects of cannabis have dissipated. Unlike alcohol, which people generally metabolize quickly, positive tests for cannabis use are highly unreliable in determining whether an employee is under the influence of cannabis while at work. While nothing prohibits an employer from testing for cannabis use as part of a post-employment drug screen, disciplining an employee solely on the basis of a positive test result for cannabis likely violates the Right to Privacy in the Workplace Act which prohibits any adverse employment action against an employee for their off-duty legal activities. Just as an employer cannot discipline an employee for having an alcoholic beverage off duty or smoking cigarettes or any other behavior that the employer may prohibit on duty, an employee who uses cannabis recreationally and consistent with the statute while off duty cannot be disciplined for such use.

A positive test for cannabis can be used as additional evidence of being under the influence while at work only as secondary or confirmatory evidence when the employer has established reasonable suspicion of such use. If an employer has reason to suspect that an employee is impaired by cannabis while working, management should clearly document all of the observed objective factors that support this suspicion. The law provides some guidance with regard to reasonable suspicion of cannabis impairment. Symptoms of impairment may include speech issues, problems with physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in the operation of machinery or equipment, an apparent disregard for the employee’s own safety or that of other employees, involvement in an accident or damage to the employer’s property, disruption of the workplace or negligent conduct that results in an injury to another employee. Unfortunately, many of these statutory factors may indicate other issues, such as a stroke or other physical impairment. Well documented symptoms of impairment by trained supervisors and managers are currently the strongest “test” for being under the influence of cannabis, which can be strengthened by a positive test result for the same.

So, employers can never use a positive test result for cannabis as the basis for discipline against employees?

No. Employees who must possess a CDL, certain law enforcement and employees who operate under federal grants can still be disciplined for cannabis use because cannabis is still illegal under federal law. Additionally, in Illinois, even after January 1, 2020, recreational cannabis use is still illegal for individuals under the age of 21. Employees under that age may still be disciplined solely on the basis of a positive cannabis test result.

Can we still include cannabis among the drugs tested in random drug tests?

Employers should no longer test for cannabis use as part of random drug testing except for CDL required positions, certain law enforcement personnel and those under 21 years of age, with the caveat for lawful medical cannabis use. Additionally, pre-employment drug screens should no longer include tests for cannabis as it will be a “lawful product” after January 1st.

How does the legalization of recreational cannabis affect our ability or need to regulate the use of medical cannabis?

The use of cannabis for lawful medical purposes has been the exception from discipline for qualifying individuals while cannabis is still an illegal drug for recreational use. After January 1st, employers will no longer need a medical cannabis caveat in their policies except for employees who are still prohibited from its use under federal law.

Do employers need to update their drug and alcohol policies?

Possibly. Since policies vary, it is important to review and when necessary, revise workplace drug and alcohol policies. Equally as important, is the need to revise employment practices in the workplace. Training or retraining supervisors and managers on reasonable suspicion indicators and updating forms that document such is essential. The strength of an employer’s disciplinary decision rests on how knowledgeable and thorough the process of determining reasonable suspicion is. Eliminating cannabis testing in pre-employment and random testing, except for DOT, some law enforcement and federally controlled positions will prevent allegations of violation of the Right to Privacy in the Workplace Act for adverse actions resulting from use of a lawful product while off duty.

Original post authored by Margaret Kostopulos, Ancel Glink

Thursday, November 7, 2019

Quorum Forum Podcast: Closed Session for Litigation

Thursday, November 07, 2019 Julie Tappendorf

A new Quorum Forum Podcast Episode has just been released!

In Episode 31: Closed Session for Litigation, Ancel Glink attorneys meet at the dog park to preview the 2019 Illinois Association of Park Districts Legal Symposium and significant court decisions affecting your district’s day-to-day operations. Later, we adjourn to closed session to talk about what all units of local government should know about the Open Meetings Act exception for discussing litigation.

What questions do you have about discussing litigation in closed session? Email us at podcast@ancelglink.com!

Open Meetings / Social Media

Wednesday, November 6, 2019

U.S. Supreme Court Declines to Hear Food Truck Case

Wednesday, November 06, 2019 Julie Tappendorf

We previously reported on a case that made its way to the Illinois Supreme Court involving a challenge to the City of Chicago's food truck ordinance. As we reported in the past, the operator of a cupcake food truck had challenged the ordinance on various grounds, including that the ordinance treated food trucks less favorably than traditional restaurants by prohibiting food trucks from locating within 200 feet of a brick and mortar restaurant with limited exceptions. The trial and appellate courts had rejected the food truck's claims, and the Illinois Supreme Court also upheld the City's ordinance.

The food truck operator then filed a "writ of certiorari" with the U.S. Supreme Court asking that Court to take on the case. Just this week, the U.S. Supreme Court affirmatively declined to take the case, meaning that the Illinois Supreme Court's ruling in favor of the City of Chicago and upholding the City's ordinance will stand.

Constitutional Issues / Land Use and Environmental

Tuesday, November 5, 2019

Sharing Meme Creates Controversy at Work

Tuesday, November 05, 2019 Julie Tappendorf

In yet another installment in a never-ending saga of "be careful what you post on social media," a 23-year old employee of a stone company claims he was fired after posting the following meme on his Facebook page:

As you can see from one of the comments and then the employee's response, the employee seemed surprised that the posting might create an issue with his job as in his view, he simply "shared a funny meme" while off-duty. But, as we have seen through other examples of similar social media postings, not all personal social media activities are protected, and the consequences of one "funny meme" can be pretty significant.

The employer responded to the initial news story about this incident to contradict the employee's claim that he was fired for his social media activities. According to the employer, the employee was not fired for posting the meme, and in fact worked for two days after the posting before walking off the job. Now that the employee has retained an attorney, we may have to wait for a court decision to see which story carries more weight.

Personnel / Social Media

Monday, November 4, 2019

PAC Issues 2 Binding FOIA Opinions

Monday, November 04, 2019 Julie Tappendorf

Last week, the Public Access Counselor of the Attorney General's office issued two new binding FOIA opinions.

In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city had released other records relating to the incident, but withheld the body camera recordings, citing the Law Enforcement Officer-Worn Body Camera Act and the FOIA exemptions that protect records when there is an open criminal investigation. The county states attorney also supported the city's withholding of the recordings.

The PAC reviewed the city's denial and cited exemptions and rejected its argument that the recordings were exempt. Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act, and ordered release of the recording.

In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review.

Freedom of Information

Friday, November 1, 2019

Parking Excise Tax Update

Friday, November 01, 2019 Julie Tappendorf

You may recall that we reported on a new excise tax enacted by the Illinois General Assembly that would impose a state tax on the use of parking facilities. As we noted in our post, the Act applies to any "person" who operates a parking area or parking garage as defined by the Act. The definition of person does not reference municipalities or other units of local government, so it seemed that the tax would not apply to municipal parking garages and lots. As we noted in our previous report, we reached out to various state agencies and organizations to get more clarification on this interpretation. Unfortunately, we received inconsistent messaging on our interpretation.

We wanted to update you, however, because we recently learned that the Illinois Municipal League is urging the General Assembly to amend the Act prior to it taking effect in January to expressly exempt municipal-owned parking facilities. Although we have not yet seen draft legislation, we hope this does, in fact, move forward soon. We are also waiting to see the rules that the Illinois Department of Revenue have been working on to implement this new tax.

As noted before, we will keep you updated as we learn more about this tax and any changes.

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