2020 ~ Municipal Minute

Thursday, December 31, 2020

Court Finds Immunity for City's Paramedic Actions Under EMS Act

Thursday, December 31, 2020 Julie Tappendorf

An Illinois Appellate Court recently rejected a lawsuit filed against a City relating to EMS services. Gary v. City of Calumet City.

In 2014, a woman suffered an asthma attack and was treated by City paramedics after her mother called 911. The woman passed away 10 days later, and her mother sued the City claiming the paramedics acted willfully and wantonly in treating her. The Court disagreed, finding in favor of the City under the Emergency Medical Services Systems Act which provides immunity from civil liability when emergency medical services are provided in good faith, except in cases of willful and wanton misconduct. The Court did not find that the paramedics actions rose to the level of willful and wanton misconduct and, therefore, the City was immune from liability in this action.

Wednesday, December 30, 2020

Court Dismisses Land Use Claims

Wednesday, December 30, 2020 Julie Tappendorf

An Illinois Appellate Court recently upheld the dismissal of a complaint against a municipality, finding that the landowner had no lawfully vested right and that his regulatory takings claim was precluded by a claim that had already been litigated in federal court. Storey v. City of Alton.

In 1999, Michael Storey bought property in Alton in order to develop it into a mobile home development. The property was annexed into the City by a 1986 pre-annexation agreement. Storey claims the annexation agreement provided for rezoning of the land to allow for the placement of manufactured homes and that he would be entitled to subdivide the property.

Storey sought to subdivide the property and submitted a request to the City for approval in 2008, which the City denied, at least in part because the available water supply did not meet fire safety standards. Five years later, Storey submitted two proposed plats of subdivision , but the City notified him that they were defective due to various problems and omissions related to the application.

After the City’s denial of the proposed subdivision, Storey filed a lawsuit against the City in federal court claiming that the City had used its position to prevent him from subdividing his property under false pretenses, and that the City continuously cited him for ordinance violations while allowing his neighbors to violate the same City ordinances. The federal court ruled in favor of the City, finding that Storey's equal protection and state law claims were brought too late and were barred by the statute of limitations. The federal court also found that law enforcement officials are entitled to a great deal of discretion in how they choose to prosecute offenses, so it rejected Storey's equal protection claim that every ordinance violation or criminal act has to be prosecuted. Storey appealed to the Seventh Circuit, which upheld the federal court’s decision. On June 11, 2018, the United States Supreme Court refused to hear his appeal.

A year later, Storey filed a complaint in state court, based on the same factual allegations. The trial court dismissed that complaint and Storey appealed.

On appeal, the Appellate Court also ruled in the City’s favor. The Court reasoned that because there was currently no proposed plat pending with the City for the development of his property, his request for an order to approve a plat (mandamus relief) was not ripe for review and any opinion by the court would be advisory at best. The Court also found that the mandamus action was time barred.

In addition, the Court rejected Storey's argument that his regulatory takings claim was different from the equal protection claim he had brought in federal court, finding that the underlying transaction or events for each of the claims were identical—both claims sought to challenge the City’s denial of his proposed subdivision plat based on the lack of a water supply to the property. As a result, the Court held that Storey could not relitigate the same issue in state court that he had lost in the federal court.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

Constitutional Issues / Land Use and Environmental

Tuesday, December 29, 2020

PAC Issues Binding Opinion on FOIA and Police Report Involving Juvenile Victim

Tuesday, December 29, 2020 Julie Tappendorf

The PAC issued its eighth binding opinion for 2020 finding a public body in violation of FOIA for withholding a police report involving a juvenile victim in PAC Op. 2020-08.

In September, an attorney submitted a FOIA request to a Sheriff’s Office seeking a police report involving the alleged sexual assault of a minor. The attorney submitted the FOIA request on behalf of his client (the minor’s father) for a civil matter. The Sheriff’s Office denied the request citing FOIA section 7(1)(a), claiming the report was specifically prohibited from disclosure by the Juvenile Court Act of 1987 (JCA). After the attorney submitted an appeal with the PAC office of the Attorney General contesting the denial, the PAC issued a binding opinion finding that the Sheriff’s Office violated FOIA by improperly withholding the responsive report.

The PAC rejected the Sheriff’s Office conclusory assertion that reports involving minors are entirely exempt from disclosure. The PAC noted that the Sheriff's Office's denial lacked the detailed factual and legal basis necessary to withhold the report under FOIA section 7(1)(a). In addition, the report concerned an alleged crime committed by an adult against a minor so it did not qualify as a “juvenile law enforcement record” as defined in the JCA because the report did not relate to a juvenile committing or suspected of committing an offense. Since the JCA does not prohibit disclosing police reports regarding a minor who is an alleged victim (unless the suspect or perpetrator is also a juvenile), the PAC concluded that the report was improperly withheld from disclosure.

The Sheriff's Office did not raise a privacy exemption for the records pertaining to a juvenile victim, maybe because the attorney for the minor's father was the requester. However, public bodies might want to keep that exemption in mind (i.e., section 7(1)(c) of FOIA) when they receive a FOIA request asking for records pertaining to a juvenile victim.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Monday, December 28, 2020

Access to Candidate Nominating Petitions

Monday, December 28, 2020 Julie Tappendorf

This year is a local election cycle for many Illinois units of local government, and many candidates for local office filed their nominating petitions and other candidacy paperwork last week. A question was recently raised regarding access to candidate nominating petitions and filings, and whether the exemptions under FOIA apply to certain information within those filings.

Cerrtainly, nominating petitions and candidacy papers are public records under FOIA. As a result, there may be certain information within those documents that could be considered exempt from FOIA, such as signatures and home addresses. The problem with redacting petition signers signatures and home addresses before providing these records is that this type of redaction could conceal the very information a person might need to determine whether a candidate complied with the requirements of the Election Code for his or her candidacy. For example, if a potential objector could not view the petition signers signatures, how could the objector determine whether the signatures matched voter records? Similarly, how could an objector determine whether a candidate was a resident if the candidate's home address was redacted?

Section 10-7 of the Illinois Election Code includes a provision that requires local election officials to provide access to these candidacy filings for this reason (see below). Because of the very short time-frame for filing an objection to a candidacy's filing and to ensure that access meets the purpose of the objection process to confirm a candidate's eligibility to run for office, it is recommended that local election officials provide persons with prompt access to candidacy papers, without making any redactions to those papers.

All certificates of nomination and nomination papers when presented or filed shall be open, under proper regulation, to public inspection, and the State Board of Elections and the several election authorities and local election officials having charge of nomination papers shall preserve the same in their respective offices not less than 6 months.

Tuesday, December 22, 2020

County Dispatch Services Protected by Tort Immunity Act

Tuesday, December 22, 2020 Julie Tappendorf

An Illinois Appellate Court recently held that a county and its employees had immunity from liability in a case brought by the husband of a woman who died after driving under the influence of alcohol. Schultz v. St. Clair County.

Plaintiff sued the County, a 9-1-1 agency, the ETSB, and an unnamed dispatcher claiming they were responsible for his wife's death. According to the complaint, the plaintiff had called 9-1-1 to report that his wife was under the influence of alcohol and asking police to prevent her from driving her vehicle. He claims the dispatcher refused to call police to his wife's location which he claims led to her death that evening. Defendants filed a motion to dismiss the case, arguing that the Tort Immunity Act protected the defendants from liability. Specifically, Section 4-102 provides as follows:

Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.

The trial court dismissed the case and plaintiff appealed.

The Appellate Court first noted that Section 4-102 had been previously interpreted by the Illinois Supreme Court to provide immunity where dispatch services are called upon to dispatch police in response to a request for services and the police do not respond. Applying that case to the plaintiff's claims, the Appellate Court found the defendants to be immune from liability under Section 4-102. The Court also rejected plaintiff's argument that the Emergency Telephone Systems Act imposes liability or responsibility for dispatch services, finding the Tort Immunity Act to be clear on the applicable immunities.

Monday, December 21, 2020

Court Upholds City's Denial of PSEBA Benefits in Training Exercise

Monday, December 21, 2020 Julie Tappendorf

An Illinois Appellate Court recently ruled in favor of a municipality in a challenge to the City's decision denying PSEBA benefits to a firefighter. Heneghan v. City of Evanston

A City firefighter was injured during a live fire training exercise. He applied for and was approved for an on-duty disability pension for his injuries sustained during the training exercise. He also applied for benefits under the Public Safety Employee Benefits Act (PSEBA) which provides health insurance benefits for public safety officers who suffer catastrophic injuries incurred under specified statutory circumstances. The City denied PSEBA benefits finding that although the injury met the first part of the Act (i.e., it was a "catastrophic injury"), it did not satisfy the second part of the Act - in this particular case, the City found that the injury was not occurred "in response to what was reasonably believed to be an emergency."

The firefighter sued, and the trial court upheld the City's decision to deny PSEBA benefits. On appeal, the Appellate Court also ruled in the City's favor. The Court rejected the plaintiff's argument that the live fire exercise itself was the emergency and that any resulting injury satisfied the second part of the Act, finding that to be an overly broad reading of previous cases interpreting the Act. The fire itself was not the emergency, and instead the act leading to the injury must qualify as an emergency. In this case, plaintiff's fall was not due to any emergency as the emergency situation involved in this case (the failure of equipment) had been resolved before plaintiff was injured. As a result, the City's finding that plaintiff was not responding to an emergency when he was injured was not a mistake, and the City's denial of PSEBA benefits was not clearly erroneous.

Friday, December 18, 2020

Election Law Prohibiting "Ballot Selfies" Upheld as Constitutional

Friday, December 18, 2020 Julie Tappendorf

An Illinois Appellate Court recently upheld as constitutional Section 29-9 of the Illinois Election Code (prohibiting photographs of a completed ballot) against a challenge that it violated the First Amendment right to free speech. Oettle v. Guthrie, 2020 IL App (5th) 190306.

On November 6, 2018, Oettle went to her assigned polling place to cast her vote. She asked one of the election judges if she could take a "ballot selfie" with her completed ballot and was told no because this practice was against Illinois law. She did not take the photograph but did file a lawsuit against various election officials and the State Board of Elections challenging the constitutionality of the law as a violation of her First Amendment right to free speech. The trial court dismissed the case, and she appealed.

On appeal, the Appellate Court reviewed the statute that has been interpreted to prohibit the taking of photographs of completed ballots. Section 29-9 of the Election Code states as follows:

Section 29-9. Unlawful observation of voting. Except as permitted by this Code, any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting device, shall be guilty of a Class 4 felony.

The Court noted that this provision has been been interpreted to make it unlawful to take a photograph of a completed ballot. The Court determined that the restriction did not limit a voter's access to a ballot or limit the voter's choice in voting. Instead, the purpose of the statute was to protect ballot security and restrict an outsider's access to viewing a voter's completed ballot, important protections for voters to ensure that voters are able to voter their conscience free from coercion, influence, or bribery in furtherance of the system of democracy. The Court also acknowledged that allowing "ballot selfies" could lead to delays and disorganization at the polls. In short, the statute was a reasonable restriction and the trial court properly dismissed the plaintiff's First Amendment challenge.

Constitutional Issues / Elections

Tuesday, December 15, 2020

Governor Extends Tier 3 Mitigations Through January 9th

Tuesday, December 15, 2020 Julie Tappendorf

On Friday, Illinois Governor Pritzker issued another disaster declaration dated December 11, 2020, regarding the COVID-19 pandemic. The December declaration is pretty consistent with the November declaration, including the Governor's finding that in-person attendance of more than ten people at a regular meeting location of a meeting subject to the Open Meetings Act is not feasible.

The Governor also issued EO 2020-74 re-issuing many of the previous executive orders pertaining to the COVID-19 pandemic, including extending EO 2020-73 which imposed Tier 3 mitigation measures throughout the state until January 9, 2020. You can read the new EO here.

Thursday, December 10, 2020

Court Reverses Firefighter Pension Board’s Decision Terminating Disability Payments

Thursday, December 10, 2020 Julie Tappendorf

In Pagorek v. Board of Trustees of the City of Harvey's Firefighter Pension Fund, the Illinois Appellate Court overturned a pension fund board’s decision that had found a firefighter was no longer disabled and did not qualify for a disability pension.

Pagorek was hired as a firefighter in 1997. In January 2005, he slipped and fell and experienced severe lower back and leg pain. Pagorek filed an application for a disability pension in November 2005. After medical evaluation, doctors concluded Pagorek could not lift loads greater than 120 pounds or carry loads greater than 100 pounds, which was required by firefighters. The pension board granted Pagorek a non-duty disability pension after a finding that he was "permanently, medically disabled."

Under the Illinois Pension Code, firefighters who are under 50 years of age who receive disability benefits are required to undergo annual medical examinations to "verify continuance of disability." In a 2017 examination, a pension board-selected doctor found that, although Pagorek was experiencing mild pain, he was no longer disabled to the point of requiring disability payments. Pagorek sought his own medical opinion from two other doctors that contradicted the board's doctor.

During a board hearing to evaluate Pagorek's disability eligibility, Pagorek stated that he had not sought physical therapy for his condition because he was uninsured for most of the time between 2007 to 2017 although he had worked two jobs while receiving disability benefits. Pagorek's counsel argued that the board's medical expert was "extremely biased" after testimony found she represented insurers and employers 99% of the time during similar proceedings. Based on the pension board's medical expert's opinion, the board terminated Pagorek's disability benefits.

Pagorek then filed a lawsuit and the circuit court upheld the pension board's decision. However, on appeal, the appellate court found that the pension board's decision, based on one doctor's medical opinion concluding Pagorek could return to full duty, was against the manifest weight of the evidence. The board's doctor had opined that Pagorek's pain did not affect his daily life, allowing him to get physically demanding jobs. However, the court found these conclusions contradicted other medical evaluations and Pagorek's overall physical condition. Pagorek testified he could not perform daily activities like picking up his kids or bending and twisting his back without pain. Further, Pagorek's position as a satellite dish installer only required him to occasionally lift 30 lbs. satellite dishes and 50 lbs. ladders, which were far lighter than the required 120 lbs. of lifting needed as an active duty firefighter. As a result, the reviewing court reversed the board's decision that had terminated Pagorek's disability pension.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Wednesday, December 9, 2020

Appellate Court Upholds Village of Deerfield's Assault Weapon Ban

Wednesday, December 09, 2020 Julie Tappendorf

An Illinois Appellate Court recently issued a ruling in favor of the Village of Deerfield on a challenge to its assault weapon and large magazine ban. Easterday v. Village of Deerfield.

In 2013, the Village of Deerfield passed an ordinance regulating the storage and transportation of assault weapons in the Village. The ordinance did not ban these weapons, however. The ordinance was adopted pursuant to the Village's home rule powers and was intended to fall under a state law enacted in 2013 that provided a window for municipalities to ban assault weapons. According to the appellate court ruling, the Village was not ready to impose a total ban on assault weapons but wanted to preserve the right to do so in the future through an amendment to this 2013 ordinance.

In 2018, the Village adopted two ordinances amending the village code to prohibit the possession, manufacture, transfer, transport, storage, or keeping of any assault weapon or large capacity magazine. The Village provided a 60 day grace period for persons to come into compliance with the new ordinance.

Shortly after the ordinances were adopted, Easterday and Guns Save Life sued the Village to challenge the ordinances. These two cases were consolidated. The lawsuits brought a variety of legal challenges to the assault weapon ban, including that it was preempted by state law and was an unconstitutional "taking," among other claims.

In 2019, the trial court issued an injunction prohibiting the Village from enforcing the ordinances. We wrote about that ruling on the blog here. The court determined that the ordinances were preempted by the FOID Card Act and the Concealed Carry Act (both state laws).

The Village appealed, and the First District Appellate Court issued its ruling on December 4, 2020.

After addressing a number of jurisdictional and procedural issues, the Appellate Court addressed the preemption argument under the FOID Card Act. Deerfield argued that the FOID Act expressly authorized municipalities to regulate assault weapons under the following language in section 13.1(c):

(c) Notwithstanding subsection (a) of this Section, the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly. Any ordinance or regulation described in this subsection (c) enacted more than 10 days after the effective date of this amendatory Act of the 98th General Assembly is invalid. An ordinance enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly may be amended. The enactment or amendment of ordinances under this subsection (c) are subject to the submission requirements of Section 13.3. For the purposes of this subsection, ‘assault weapons’ means firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of ‘assault weapon’ under the ordinance.

According to Deerfield, any home rule unit that regulated assault weapons within the window specified in section 13.1(c) will retain their concurrent regulatory power. Deerfield argued that it had retained that authority when it adopted its initial ordinance regulating the storage of assault weapons in 2013. The Appellate Court agreed with the Village, finding that the legislature had reserved certain powers to home rule units as a "hybrid" regulatory scheme. As a result, the Appellate Court found the trial court had erred in ruling against the Village on this preemption issue because the Village had preserved its rights to regulate assault weapons when it adopted the 2013 initial ordinance.

On the issue of the Village's ban on large capacity magazines, however, the Appellate Court found that the Village was preempted by the FOID Card Act and the Concealed Carry Act to the extent that the ban regulates ammunition for handguns.

Constitutional Issues

Tuesday, December 8, 2020

Supreme Court Rules in Favor of Religious Uses in COVID Case

Tuesday, December 08, 2020 Julie Tappendorf

As many of you are all ready aware, the U.S. Supreme Court issued a ruling the day before Thanksgiving regarding a challenge to New York Governor Cuomo's executive order restricting attendance at places of worship to address the spread of the virus that has caused the COVID-19 pandemic. Roman Catholic Diocese of Brooklyn et al v. Governor Cuomo.

The challenge had been brought by two places of worship located in areas that, at the time of the lawsuit filing, were located in "orange" zones that limited places of worship to 10 persons. The Supreme Court's decision was 5 to 4 in favor of the religious institutions that had filed the lawsuit, although the opinion itself contained multiple concurrences and dissents. The main focus of the opinion was the majority's view that the Governor's order treated religious uses less favorably than non-religious uses. For example, the Court noted that big box stores and grocery stores in the orange zones could allow hundreds of people to shop but religious institutions were limited to 10 persons in those same zones.

The Supreme Court's opinion on COVID restrictions and their impact on religious exercise certainly seems to have shifted from where the Court was just a few months ago. As we reported previously on this blog, the Supreme Court denied Elim Romanian Church's appeal of a Seventh Circuit ruling involving a challenge to Illinois Governor Pritzker's restrictions on religious services, finding the challenge moot. Elim Romanian Church et al. v. Pritzker. The Supreme Court had also upheld California's restrictions on places of worship, finding that California had a compelling government interest in protecting the health and safety of residents and that the state had not treated places of worship less favorably than comparable assembly uses. South Bay Pentecostal Church v. Governor Newsom. In its more recent case, the Court seems to expand on what it considers "comparable" uses for purposes of determining whether religious uses are treated less favorably.

Constitutional Issues / Covid-19 / Land Use and Environmental

Monday, December 7, 2020

Court Dismisses Church's First Amendment Claims against Village

Monday, December 07, 2020 Julie Tappendorf

Our friends at the Law of the Land blog recently reported on a federal district case from Illinois that may be of interest to our readers.

In Word Seed Church v Village of Homewood, IL, 2020 WL 6719030 (ND IL. 11/16/2020), a church had sued the Village of Homewood challenging the Village's zoning ordinance because it allegedly impeded the church's ability to establish a place of worship in the Village because the zoning ordinance required a special use permit to operate in any zoning district within the Village. The Village responded that the church did not have "standing" to sue the Village because its claims were speculative and because the church did not own property within the Village that would be subject to the ordinance. As a result, the church had not suffered any injury or damages because of the zoning ordinance. The district court agreed with the Village and dismissed the case, finding that the church had not shown how the zoning ordinance violated their right to free religious exercise where the alleged harm was not caused by the Village's zoning ordinance. Any damages that may have been suffered by the church were caused by the seller backing out of the sale of the property to the church and not because of the zoning ordinance.

Constitutional Issues / Land Use and Environmental

Thursday, December 3, 2020

New Podcast Released - Social Media Workshop

Thursday, December 03, 2020 Julie Tappendorf

Ancel Glink's Quorum Forum podcast just released Episode 47: IAMMA Social Media Workshop! A description of this podcast is below and you can listen to the podcast on the Quorum Forum website here.

Quorum Forum Episode 47: IAMMA Social Media Workshop!

How do the First Amendment and other laws apply to local government employees on social media? Ancel Glink Attorneys Matt DiCianni and Dan Bolin talk about it at the Illinois Association of Municipal Management Assistants (IAMMA) Social Media Workshop, discussing what agencies can do about their employees’ personal social media use and the importance of implementing a social media policy.

How have the pandemic, civil unrest, and elections affected your employees on social media? Email us at podcast@ancelglink.com!

Seminars / Social Media

Wednesday, December 2, 2020

Court Analyzes Subsidiary Body Factors Under FOIA

Wednesday, December 02, 2020 Julie Tappendorf

In 2014, the Better Government Association (BGA) made FOIA requests to the Metropolitan Pier and Exposition Authority (MPEA) and Navy Pier, Inc. (NPI) seeking records relating to the operation of Navy Pier. While MPEA supplied some responsive records and indicated that certain other responsive records did not exist, NPI denied the request entirely claiming that it was not a public body subject to FOIA. The BGA sued MPEA and NPI, alleging FOIA violations. The trial court held that MPEA was required to produce public records in NPI’s possession that related to its services to MPEA because NPI performed a governmental function on the MPEA's behalf and the records requested directly related to that governmental function under FOIA section 7(2). However, the trial court determined that NPI was not a subsidiary public body of MPEA, so it was not directly subject to FOIA.

On appeal, the appellate court agreed with the trial court in Better Gov't Ass'n v. Metro. Pier & Exposition Auth. & Navy Pier.

First, the appellate court determined that because NPI fulfills the duties the state legislature assigned by statute to the MPEA concerning Navy Pier, and the NPI records at issue directly related to NPI’s performance of a governmental function of behalf of MPEA, NPI performs a governmental function on behalf of MPEA. That means that MPEA was required to disclose the requested records directly related to that governmental function in NPI’s possession, and the appellate court ruled in favor of BGA on this particular argument.

However, the appellate court rejected BGA's argument that NPI was a subsidiary body under FOIA that would require NPI to comply with FOIA as a general rule. The appellate court applied the four factors established by the Illinois Supreme Court case for determining when a particular entity was considered a "subsidiary body" that would be subject to FOIA. Here, the appellate court concluded that NPI was not a subsidiary body of MPEA. Specifically, the appellate court determined that NPI was a formally independent corporation with a separate legal identity from MPEA and MPEA did not maintain operational control over NPI. Also, since most of NPI's funds for daily operations were raised without MPEA's assistance and MPEA’s capital contributions primarily improved the value of MPEA’s property and did not fund NPI’s operations, MPEA’s contributions were not construed as publicly funding NPI. Additionally, while NPI performs a governmental function on the MPEA's behalf, that factor alone does not outweigh the other factors indicating that NPI did not operate as a subsidiary of MPEA. Contrary to BGA’s argument, whether NPI asserted tort immunity in past lawsuits does not amount to an admission regarding NPI being subject to governmental control by MPEA.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Tuesday, December 1, 2020

Court Overturns Civil Penalty Award in FOIA Case

Tuesday, December 01, 2020 Julie Tappendorf

In Peery v. Madison Cty. State's Attorney's Office, an Illinois Appellate Court overturned an order that imposed civil penalties against a public body under FOIA for failing to disclose certain misplaced records because the evidence did not suggest the records were withheld intentionally, willfully, or otherwise in bad faith.

This case arose from four separate FOIA requests submitted to the Madison County State's Attorney's Office (SAO) in 2016. The SAO provided certain records, but redacted some of them based on applicable FOIA exemptions. The requester then sued the SAO, claiming the SAO violated FOIA in responding to his four FOIA requests. The court determined that the SAO ultimately did comply with FOIA in responding to the requests, but nevertheless awarded civil penalties of $2,500 to the requestor after determining that the SAO willfully and intentionally failed to comply with FOIA, or otherwise acted in bad faith, when it initially misplaced certain responsive records. The SAO appealed, arguing that the trial court erroneously awarded civil penalties to the requester because the evidence did not support a finding of a willful, intentional, or bad faith violation of FOIA.

On appeal, the Appellate Court determined there was no evidence that the SAO intentionally withheld letters, and once the SAO located the misplaced records, it immediately released the misplaced documents to the requestor, demonstrating good faith effort on the SAO's part to comply with FOIA. As a result, the Appellate Court overturned the award of civil penalties to the requester.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Monday, November 30, 2020

PAC Interprets New Remote Meeting Procedures of OMA in Binding Opinion

Monday, November 30, 2020 Julie Tappendorf

It's been 4 months since the PAC issued a binding opinion, but on November 24th, the PAC issued its seventh binding opinion of 2020 finding a public body in violation of the Open Meetings Act in PAC Op. 2020-07 because it muted a portion of its "remote" village board meeting.

This summer, the Illinois General Assembly amended the OMA (effective June 12, 2020) to add a new remote meeting procedure that authorizes public bodies to meet electronically, subject to following certain statutory procedures. We have previously summarized that new law on the blog. Many public bodies across the state have conducted their meeting business electronically, via various platforms, including Zoom.

In September, a village board held a village board meeting using the Zoom platform. A member of the public in attendance at the village board meeting filed a request for review with the Public Access Counselor claiming that the board violated the OMA when it "muted" a portion of the meeting for a "sidebar" discussion between the village president and village clerk tht lasted about 60 seconds. He also claimed the village board was in violation of the OMA because it did not allow members of the public to physically attend the meeting at village hall.

The PAC found the village board in violation of the OMA for muting the "sidebar" discussion between the village president and the village clerk. Although the PAC acknowledged that there is nothing that would prohibite a similar "sidebar" discussion at an in-person meeting, the PAC noted that the new remote meeting procedures of the OMA expressly require a public body to ensure that "any interested member of the public" can "contemporaneously hear all discussion, testimony, and roll call votes." By muting a portion of the meeting for the "sidebar," the public body violated this particular provision because members of the public could not hear that discussion.

However, the PAC did not find the village board in violation of the OMA for not allowing the public to be present at village hall for the meeting. The PAC noted that the village board live-streamed its board meeting via Zoom, which was accessible to the public. These "alternative arrangements" for the public to attend the meeting satisfied the OMA because (1) the Governor had issued a disaster proclamation that was effective during the meeting and (2) the mayor had determined that full in-person meetings of the public body were not practical or prudent in light of the ongoing pandemic.

Covid-19 / Open Meetings

Monday, November 23, 2020

Governor Issues EO Implementing Tier 3 Restrictions

Monday, November 23, 2020 Julie Tappendorf

We previously reported on the Tier 3 mitigation measures that took effect on Friday and that cover the entire State of Illinois. Since the Governor's press release about the new restrictions, he issued the Executive Order 2020-73 that provides further details about the new restrictions, including guidance on some government functions and activities that will be of interest to our readers.

EO 2020-73 does not replace the Restore Illinois plan or the Tier 3 mitigation measures, so those restrictions and guidelines should be consulted as well. To the extent there is any conflict, EO 2020-73 expressly states that the more restrictive standards will apply.

The EO includes the restrictions on various businesses and activities as we described in our previous blog post about Tier 3. There are a few additional regulations and restrictions, many of which are summarized below:

Social Distancing & Face Coverings

The EO continues to mandate that people maintain a six foot distance from other individuals and wear face coverings in public places and where distancing cannot be met.

Gatherings

The EO prohibits indoor gatherings of more than one household. Outdoor gatherings are prohibited to 10 people. The EO encourages people to conduct activities outdoors wherever possible.

Business Activities

We summarized the Tier 3 restrictions for businesses (retail, manufacturing, office, fitness, recreation, etc.) previously, so encourage you to revisit that blog post.

Exemptions

The EO contains four exemptions, summarized below. For more information about each of these exemptions, you should consult the EO.

1. Free exercise of religion. The EO does not limit the free exercise of religion. However, the EO strongly encourages religious organizations to consult and follow recommended guidelines from the IDPH, including offering online, drive-in, or outdoor services and limiting services to 10 people.

2. Emergency functions. The EO exempts first responders, EMS, dispatchers, court personnel, law enforcement and corrections, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support the emergency response.

3. Governmental functions. The EO exempts the federal government. It also exempts services provided by the state or any municipal, township, county, subdivision, or agency of government that are needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public.

4. Election-related functions. The EO does not apply to activities related to the November 2020 election, including the meeting of presidential electors related to the Electoral College. The EO does not apply to township or municipal caucuses, and the EO expressly states that nothing in the EO prohibits caucuses from being held virtually or outdoors.

Enforcement

The EO states that it can be enforced by state and local law enforcement pursuant to the Illinois Emergency Management Act.

No Limitation on Authority

The EO expressly states that it is not intended to alter or modify any existing legal authority that would allow a county or local government to enact stricter provisions than those in the EO.

Wednesday, November 18, 2020

Tier 3 COVID Mitigation Measures Take Effect on Friday

Wednesday, November 18, 2020 Julie Tappendorf

It will come as no surprise to most readers, but the State of Illinois is going to see new mitigation measures to try to control the COVID-19 pandemic. As we've reported in the past, all regions in the State are currently in Phase 4, with individual regions also being subject to either Tier 1 or Tier 2 measures that restrict certain activities such as indoor dining and size of gatherings.

Effective Friday, November 20, 2020, the entire State will be subject to Tier 3 mitigation measures. The IDPH will monitor progress over 14 day monitoring periods to determine if mitigations can be relaxed or additional mitigations are required.

Tier 3 places additional restrictions on various activities, which are detailed here. We've summarized some of these new restrictions that take effect on November 20th, as follows:

Bars and Restaurants

Indoor dining and bar service continues to be prohibited
Outdoor service, carry out, curbside, and delivery is permitted
Bars and restaurants must close between 11 pm and 6 am
Various other restrictions on table spacing, number of guests at a table, and reservations continue
Indoor gaming terminals must cease operations
These restrictions also apply to private clubs and country clubs

Health & Fitness Centers

Restricted to 25% capacity
No indoor group fitness classes
Face coverings must be worn at all times, including while exercising
Reservations required
Locker rooms must close

Hotels

Hotel occupancy restricted to registered guests only
Fitness centers must close or operate by reservation only and at 25% capacity
"Grab and go" food allowed
Event and meeting space must close

Indoor Recreation, Theaters, and Cultural Institutions

All gaming and casinos must close
Theaters, performing arts centers, museums, and amusements centers must close
Outdoor activities allowed at 25% capacity, and limited to 10 persons or less, with face coverings worn at all times
Reservations required for outdoor activities

Organized Group Recreational Activities

Indoor group sporting and recreational activities, including youth and adult sports, must pause (includes park districts and travel leagues)
Outdoor sports and recreation allowed but limited to 10 persons or less with social distancing
Face coverings required for all activities at all times
Locker rooms must close

Personal Care Service

25 clients or 25% capacity
Face coverings required at all times by clients and providers
Suspend those services where face covering cannot be worn
Physical, occupational, and massage therapy allowed if deemed necessary by medical provider

Meetings, Social Events & Gatherings

Home gatherings limited to household members only
Meeting rooms, banquet centers, private party rooms, private clubs, and country clubs may not host gatherings
Funerals limited to 10 family members

Retail

General merchandise stores, big box stores that offer groceries and pharmacy, and convenience stores limited to 25% capacity
Grocery stores and pharmacies limited to 50% capacity
Encourage delivery or curbside delivery

Office

All employees who can work remotely should work remotely

Government

Except where specific guidance is provided for certain operations, governments may continue regular operations but are encouraged to voluntarily take steps to support new mitigation strategies, including limiting customer service to 25% capacity and maximizing work from home

Monday, November 16, 2020

Appellate Court Invalidates Kane County Court's TRO Regarding Indoor Dining Restrictions

Monday, November 16, 2020 Julie Tappendorf

There have been a number of lawsuits brought against Illinois Governor Pritzker relating to recent mitigation measures taken to address the COVID-19 pandemic. Some of these lawsuits included claims brought by restaurants to challenge bans on indoor dining and bar service. One case made its way to the Second District Appellate Court which issued a ruling last week invalidating a TRO that was issued by a trial court to stop the enforcement of the Governor's mitigation measures against a Geneva restaurant. Fox Fire Tavern, LLC v. Jay Robert Pritzker.

On October 21, 2020, the Governo issued EO 2020-61 imposing mitigation measures on four Illinois counties, including Kane County. These measures required all restaurants and bars to cease indoor service. Fox Fire Tavern filed a lawsuit and a motion for a TRO to block enforcement of the new mitigation measures. The trial court had granted the restaurant's motion and entered a TRO against enforcement of the mitigation measures against the restaurant, finding that the Governor lacked statutory authority to address the pandemic through consecutive disaster prcoclamations. The Governor, IDPH, and the Kane County Health Department appealed to the Second District Appellate Court.

In invalidating the trial court's TRO, the Appellate Court found that state statute does provide authority to the Governor to issue successive proclamations arising from a single, ongoing disaster. First, the Illinois Emergency Management Agency Act contains no provision restriction the Governor from issuing multiple declarations - the language simply prohibits the length of any one declaration to "a period not to exceed 30 days". Second, where the legislature wanted to restrict consecutive orders, the IEMA expressly said so, such as the language that prohibits a Mayor from issuing successive disaster declarations without City Council approval. In short, the Court found that the trial court's interpretation was too narrow in reading parts of IEMA in isolation from other parts of that same statute.

The Court also referenced subsequent legislative changes to other statutes (including the Unemployment Insurance Act and the Election Code) that include express reference s to subsequent disaster proclamations as evidence that the legislature contemplated the Governor issuing successive disaster proclamations.

Finally, the Appellate Court addressed the policy arguments presented by the restaurant association and other amici who filed briefs in support of the restaurant's case. These "friends of the court" argued that the restaurant industry had been unfairly targeted for shutdowns and that they would suffer extreme hardships from the stricter regulations. The Court stated that it was not tasked with considering the wisdom behind the Governor's additional restrictions, or questioning the policy. Instead, the Court said its task was to determine whether the Governor has the authority to issue successive disaster proclamations for the COVID-19 pandemic, which the Court found he does.

Wednesday, November 11, 2020

Reminder: IMRF Website Posting Requirements Deadline of January 1, 2021

Wednesday, November 11, 2020 Julie Tappendorf

Earlier this year, we wrote about Public Act 101-0504, which amended the Illinois Pension Code. This new law requires certain website posting requirements for the Illinois Municipal Retirement Fund (IMRF) and participating municipalities.

Municipalities participating in the IMRF that maintain a website must post a link to the IMRF’s “Employer Cost & Participation Information” webpage on their websites by no later than January 1, 2021. Participating municipalities are encouraged to add this link to their websites before January 1, 2021. Notably, the new law does not require participating municipalities without a website to maintain or establish a website.

The IMRF has also already started posting information required by the new law on their website regarding municipalities’ participation in IMRF. This information includes resolutions adopted by a municipality to participate in IMRF on or after January 1, 1995, an annual report listing the date each municipality first began participating in the IMRF, and documents pertaining to each municipality’s annual projected future contributions and past-required contributions. The IMRF is not required to post information on its website that would be exempt under the Illinois Freedom of Information Act.

To read our prior post on this new law, please click HERE.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, November 10, 2020

Is Video Gaming Permitted During COVID-19 Mitigation Measures?

Tuesday, November 10, 2020 Julie Tappendorf

As you know, the Governor has recently imposed further mitigation measures throughout the State of Illinois regarding the COVID-19 pandemic. Some regions are currently in Tier 1, which bans indoor dining and indoor bar service and restricts gatherings to 25 people, among other restrictions. Other regions are currently, or will be shortly, in Tier 2, which also bans indoor dining and indoor bar service and restricts gatherings to 10 people, among other restrictions.

One question that has been raised is whether a restaurant or bar that offers video gaming must also cease all gaming activities while the region is subject to these mitigation measures that ban indoor dining and indoor bar service. The DCEO posted a FAQ on this very issue on November 9, 2020. In short, video gaming activities can continue, subject to certain conditions. The FAQ is reprinted below:

Is video gaming permitted at bars, restaurants and other licensed video gaming locations in areas under mitigation?

Yes, but only under the following conditions:

Gaming is limited to within the hours of 8:00 AM to 11:00 PM daily, with no exceptions
Food and beverage service in the gaming area is suspended (curbside and carry out is permitted if otherwise authorized)
Masks must be worn at all times in the gaming area
Congregating around video gaming terminals is prohibited and there is a one person per video gaming terminal limitation
Existing social distancing, sanitizing and other mitigation protocols and measures in approved Terminal Operator Pandemic Resumption Plans remain in effect along with other applicable protocols and directives from the Illinois Gaming Board
Failure to comply with mitigation efforts and restrictions could subject licensees to discipline from the Illinois Gaming Board, up to an including license revocation

Monday, November 9, 2020

Court Rules on Reasonable Accommodations in Code Enforcement Case

Monday, November 09, 2020 Julie Tappendorf

In City of Harvard v. Nevitt, the Illinois Appellate Court ruled in favor of the City in a code enforcement case against a resident, rejecting the resident's argument that the City should have provided a reasonable accommodation for his wife's disability under the Americans' with Disabilities Act (ADA) or the Fair Housing Amendments Act (FHAA).

In December 2018, a resident of the City of Harvard applied for a permit requesting the City allow him to place a two-yard-long dumpster on his property, which otherwise violated a city ordinance. The resident had met with a City code enforcement officer to request a dumpster permit, but did not submit a formal written application. The City officer denied the resident's dumpster permit request.

In January 2019, the City discovered a two-yard dumpster on the resident's property prompting the City to issue a notice of violation. By May 2019, the City issued a “notice to abate nuisance” letter to the resident about the dumpster. And between May and July 2019, the City issued seven citations to the resident for violating the City ordinance. In June 2019, the City filed a complaint in court to enforce its ordinance, alleging the resident maintained a private nuisance on his property—the two-yard-long dumpster.

At trial, the resident stated that he was denied the dumpster permit after discussing the issue with the City. They said they requested the dumpster because the resident's wife is disabled. The City code enforcement officer, however, testified that Nevitt and his wife never mentioned the wife's disability during their meeting. Instead, Nevitt's wife referenced the need for the dumpster for a home business, which she acknowledged on cross-examination. The court found the defendant guilty of violating the ordinance and imposed a $1,250 fine, plus costs. The court also found that the defendant did not notify the City of the wife's disability.

On appeal, the court upheld the trial court's ruling. The appellate court did not find evidence in the record showing proper written notice was provided to the City regarding Nevitt's wife's disability. Further, neither Nevitt nor his wife could produce copies of documentation showing they notified the City. The record indicated, however, that after the defendant placed the non-compliant dumpster on the property, the Nevitt’s standard-issued garbage cans were still being rolled to the curb for garbage collection. In sum, the appellate court agreed with the trial court's ruling in favor of the City.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Land Use and Environmental

Thursday, November 5, 2020

6th Circuit Court of Appeals Rules on Social Media Case

Thursday, November 05, 2020 Julie Tappendorf

Early last month, the 6th Circuit Court of Appeals issued a ruling in a case filed by a City employee who was terminated for posting a comment on Facebook after the City determined that the comment was racially charged. In Bennett v. Metropolitan Government of Nashville and Davidson County, the Court of Appeals upheld the government employer's termination of the employee for the social media conduct.

In 2016, Bennett, a government employee, posted a racial slur on her personal Facebook account right after the 2016 General Election. Bennett was an emergency dispatcher of the Metro Government Emergency Communications Center (ECC). Bennett’s Facebook referenced that she was a Metro Government employee and included information that she was a dispatcher at the ECC. After friends expressed concerns about the post, she deleted it from her Facebook post; however, several of her coworkers had already seen the post before it was deleted and reported the activity to department supervisors.

When approached by supervisors about the incident, Bennett stated she made the comment in jest. Supervisors expressed concern about the racially charged comment and noted its impact on an agency that regularly interacts with the public. Bennett was placed on paid administrative leave while an investigation was conducted. An administrative hearing found that Bennett violated three provisions of the ECC's social media policy, and she was terminated.

Bennett filed a lawsuit against her employer in federal court claiming that the termination violated her First Amendment rights. The case went to trial, and a jury found in Bennett's favor, holding that her Facebook comment was not reasonably likely to impair discipline by Bennett’s supervisors at ECC, interfere with the agency’s orderly operation, or impede Bennett’s job duties. The jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment.

ECC appealed to the 6th Circuit Court of Appeals, which overturned the district court's ruling in favor of Bennett. The Court of Appeals applied the Pickering balancing test (a Supreme Court ruling that balances the weight of an employee’s speech with the weight of a government agency’s ability to maintain operations) and concluded that Bennett’s use of a racial slur was not protected speech under the First Amendment.

The Court of Appeals also noted that the record showed that Bennett exhibited little to no remorse for her use of the slur. She even called her fellow employee’s hypocrites and stated she would not apologize because some employees took her use of the slur the wrong way. The Court also found that Bennett’s use of the slur was detrimental to the ECC’s close working relationships, and the use of the slur “detracted from the mission of ECC” as an agency that provides vital services to constituents. A critical determination in the case was that Bennett’s comment was made on her public-pacing profile while listing her employer as ECC. The court found that if her Facebook profile were private, it would have diminished the argument for her termination.

Finally, the Court rejected Bennett’s argument that the comment was political because she used the slur while discussing the outcome of the presidential election the day after the results were released. Her employer conceded Bennett was making a political statement on the post but argued that use of the slur was “not purely political” and should not have garnered a high level of protection from the trial court. The Court of Appeals agreed and found that Bennett’s speech did not reach the highest level of protection.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Constitutional Issues / Social Media

Wednesday, November 4, 2020

IICLE Local Government Law Institute 2020 Seminar

Wednesday, November 04, 2020 Julie Tappendorf

Calling all local government lawyers! One month from today, the Illinois Institute for Continuing Legal Education (IICLE) will be hosting its 8th annual Local Government Law all-day seminar, which will be conducted entirely remotely this year. More information about this year's seminar is below:

Title: Local Government Law Institute

Date/Time: December 4, 2020 from 8:45 to 4:45

Place: Webinar

Description of Sessions:

Local Government Emergency Playbook
Courts, the General Assembly, and Congress: A Status Call
Statements of Economic Interest Primer
Best Practices for Virtual Board Meetings and Public Hearings
Lunch Panel: Bells That Can’t Be Unrung After COVID-19
New Developments Concerning Police and Law Enforcement
Navigating First and Second Amendment Rights in the Face of Modern Social Upheaval: COVID, Police, Protests, Civil Unrest, and the 2020 Election
Election Law Update
Law and Economics: COVID-19 Economic Development and Municipal Finance Updates

The seminar qualifies for 7.25 hours of Illinois CLE, with 2 hours of general PR credit.

You can read the agenda and brochure here and register for the seminar here.

Monday, November 2, 2020

Join us Today at Noon for a Live Election Podcast!

Monday, November 02, 2020 Julie Tappendorf

Quorum Forum 46: 2021 Election Special!

With the 2020 general election campaigns drawing to a close this week, preparations for the 2021 local government elections are well underway. Today at noon (Monday, November 2, 2020), we'll welcome Ancel Glink Attorney Ken Menzel to the podcast to discuss common areas of confusion and important things to know about the upcoming local government elections. Bring your questions and join our livestream on youtube.com/ancelglink!

If you can't attend live, don't worry - we will be posting the recording of this livestream on our Quorum Forum Podcast in the next week, so stay tuned.

Elections / Seminars

Thursday, October 29, 2020

Tier 1 Mitigation Measures Announced for Lake and McHenry Counties Effective Saturday

Thursday, October 29, 2020 Julie Tappendorf

If it seems like we are reporting every day on new COVID-19 mitigation measures, that's because we are. New mitigation measures are being announced by the State of Illinois nearly every day and yesterday was no exception. The Illinois Governor announced that tier 1 mitigation measures will take effect on Saturday, October 31st, in Lake and McHenry Counties (Region 9). As we have reported on nearly every day this week, tier 1 mitigation measures include bans on indoor dining and bar service and restrictions on gatherings to 25 people. With this announcement, 8 of the 11 Illinois regions are now subject to stricter mitigation measures.

New Mitigation Measures Announced for Chicago

Thursday, October 29, 2020 Julie Tappendorf

Just a few days after we wrote about new mitigation measures for Suburban Cook County and the St. Louis area, the State announced new mitigation measures for the City of Chicago (Region 11), effective Friday. The tier 1 restrictions are the same as what we reported on with these other regions - no indoor dining or bar service and restrictions on gatherings, meetings, and events to 25 people. That leaves only 4 regions in the State of Illinois (out of 11) that remain in Phase 4 with no mitigation measures in place.

Wednesday, October 28, 2020

Illinois Attorney General to Host FOIA Webinar

Wednesday, October 28, 2020 Julie Tappendorf

The Illinois Attorney General’s Office will host a webinar on November 6, 2020 from 10:00 a.m. to 12:00 p.m. to help public bodies and FOIA officers with responding to requests for records under the Freedom of Information Act (FOIA).

The webinar will cover basic FOIA requirements, frequently used exemptions, redacting information, and responses to request public records. The webinar will also discuss the Public Access Counselor (PAC) review process and common issues reported by the PAC.

To RSVP, email your name, title, public body, and email address to specialevents@atg.state.il.us by October 30, 2020. Space is limited, so the Attorney General’s Office encourages interested participants to register as soon as possible.

Participants may email FOIA questions in advance to specialevents@atg.state.il.us and contact the Attorney General with any other questions or requests for reasonable accommodations at specialevents@atg.state.il.us or calling 1-866-376-7215 (TTY: 1-800-964-3013).

Post Authored by Mike Halpin & Dan Bolin, Ancel Glink

Freedom of Information / Seminars

Tuesday, October 27, 2020

Homeowner Prevails in Zoning Case Against Neighbor

Tuesday, October 27, 2020 Julie Tappendorf

An Illinois Appellate Court recently upheld an injunction against a residential property owner operating a boarding house and a vehicle parking and storage facility in an Adjoining Landowner Act lawsuit (65 ILCS 5/11-13-15) brought by a neighboring resident. Frederick v. Gaca.

Frederick filed a lawsuit against his neighbors alleging a variety of claims regarding the use of residential property next door to his home. In his lawsuit, Frederick alleged the home's six bedrooms were rented out to various individuals and operated as a boarding house. He also claimed there were approximately 20 vehicles parked or stored on the property at any one time, including cars, pickup trucks, delivery trucks, and a heavy-duty work truck. According to the lawsuit, some of the parked vehicles were tenant vehicles and others were parked or stored under separate arrangement or agreement, including the payment of parking and storage fees. In support of his claims, Frederick submitted affidavits from former tenants and users of the parking and storage facility that demonstrated the illegal uses. Frederick claimed that these uses constituted a public nuisance and violated various provisions of the City of Naperville zoning ordinance.

The trial court ultimately ruled in favor of Frederick, entering a permanent injunction stopping the defendants from operating a boarding house or a parking or storage facility on the residential property.

The defendants appealed, and the Appellate Court upheld the injunction, finding that the evidence clearly established that the property was being used in violation of numerous provisions of the Naperville zoning ordinance. The Appellate Court also rejected the defendants argument that the parking and storage facility was a lawful "home occupation." The Appellate Court concluded that Frederick met his burden under the Adjoining Landowner Act to establish the unlawful use of the neighboring property, and the trial court's injunction was upheld.

Land Use and Environmental

Monday, October 26, 2020

Mitigation Measures Imposed on Suburban Cook and Metro East Regions

Monday, October 26, 2020 Julie Tappendorf

We reported last week on a variety of new mitigation measures imposed by the State of Illinois on certain regions in the state. Today, the State announced new mitigation measures for Regions 4 (Metro East) and 10 (Suburban Cook County. These measures include bans on indoor dining and indoor bar service, and restrictions on meetings, events, and gatherings to 25 people. These new restrictions go into effect on Wednesday, October 28th. You can read the tier 1 restrictions here.

In addition, the State imposed a second tier of restrictions on Region 1 (Northcentral and Northwest Illinois, including Rockford) last week. The previous ban on indoor dining and bar service remains in place, but outdoor table seating is now restricted to 6 people and meetings, events, and gatherings are restricted to 10 people. There are also new restrictions on organized recreational activities. These tier 2 restrictions went into effect on October 25th. You can read the new tier 2 restrictions here.

DCEO keeps track of the current mitigation measures imposed on each region here.

Deadline of October 31, 2020 for Discrimination and Sexual Harassment Reporting

Monday, October 26, 2020 Julie Tappendorf

During the last legislative session, the Illinois General Assembly passed the Workplace Transparency Act (WTA), which overhauled sexual harassment reporting and training requirements across the State of Illinois for employers, including units of government. Initially, the law required employers to report the number of adverse judgments issued in 2019 on July 1, 2020. Recently, the Illinois Department of Human Rights (IDHR) extended its deadline requiring employers to report all cases of “adverse judgments” regarding instances of alleged discrimination or sexual harassment in the workplace to October 31, 2020. This initial rule change does not affect reporting requirements moving forward.

The WTA defines an adverse judgment or “administrative ruling” as “any final and non-appealable judgment that finds sexual harassment or unlawful discrimination” in the employee’s favor and against the employer. These judgments can include decisions by the Illinois Human Rights Commission, Cook County Commission on Human Rights, Chicago Commission on Human Rights, or a decision by an Illinois Circuit Court. Rulings also include any final judgments by a federal court regarding employment discrimination that are no longer appealable under Title VII of the Civil Rights Act of 1964, Age Discrimination Employment Act (ADEA), or the Americans with Disabilities Act (ADA).

Employers are strictly prohibited from reporting the name of a victim of an alleged act of sexual harassment or unlawful discrimination in all required disclosures. Employers are not required to report settlements to the IDHR. Employers with no adverse judgments during the 2019 calendar year are not required to report that information to IDPH—only employers with adverse judgments must report them.

Employers can download and complete the adverse judgment form (2019 Form IDPH 2-108) here and email it to idhr.webmail@illinois.gov on or before October 31, 2020. Civil penalties for not reporting adverse judgments range from $500 to $5,000 depending on the number of workers employed by the employer and the number of offenses for failing to report.

Readers can learn more about the deadline change here and read more about the WTA on the Illinois General Assembly’s website here.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Thursday, October 22, 2020

Public Body Did Not Waive Ability to Redact Records in FOIA Case

Thursday, October 22, 2020 Julie Tappendorf

In a recent court ruling, the First District Appellate Court concluded that the Schaumburg Police Department did not waive its right to redact accident reports in response to a FOIA request even though the Department had previously provided unredacted copies of the same reports to a third-party vendor in order to comply with the Department's mandatory reporting obligations under the Vehicle Code. Mancini Law Group, P.C. v. Schaumburg Police Dep't,

Mancini Law Group, P.C. had sent a FOIA request to the Department seeking certain 2017 motor vehicle traffic accident reports. After the Village responded to the request by producing redacted accident reports, Mancini sued the Department, claiming the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department previously provided unredacted accident reports to LexisNexis. The circuit court held that the Department’s redactions were proper and that the Department did not waive its right to redact the reports in response to Mancini’s FOIA request because the Department only provided unredacted accident reports under a contract with LexisNexis, an approved third-party vendor for the State of Illinois, as part of the Department’s mandatory reporting requirements under section 408 of the Illinois Vehicle Code. That statute requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation. Mancini then appealed to the First District Appellate Court, which affirmed the circuit court’s judgement.

On appeal, Mancini argued that the Department’s voluntary disclosure of unredacted accident reports in one situation precluded the Department from withholding the same reports in response to Mancini’s FOIA request. Mancini relied on an Illinois Supreme Court's ruling that endorsed federal cases holding that “selective disclosure” by public bodies is offensive to the purposes of FOIA and intolerable as a matter of policy because “preferential treatment of persons or interest groups fosters precisely the distrust of government the FOIA was intended to obviate.” However, since LexisNexis was acting as the Department’s agent to help the Department fulfill its statutory reporting requirements, the appellate court concluded that the Department’s efforts to comply with a statutory reporting requirement were not comparable to the “selective disclosure,” or “preferred treatment” condemned by the Illinois Supreme Court.

The appellate court also rejected Mancini claim that LexisNexis sells the Department’s unredacted reports for a fee to the public without restrictions, observing that only people providing specific information can purchase unredacted accident reports—either by being involved in the accident, representing someone involved in the accident, or being an insurance company identified as insuring someone involved in the accident.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Wednesday, October 21, 2020

State Imposes New Restrictions on Illinois Regions

Wednesday, October 21, 2020 Julie Tappendorf

Regions 7 and 8 (Will, Kankakee, Kane, and DuPage Counties)

This afternoon, the Governor announced new mitigation efforts for Regions 7 and 8, which take effect on Friday, October 23, 2020. Region 7 includes Will and Kankakee Counties and Region 8 includes Kane and DuPage Counties. According to the Governor's press release, both regions have shown a positivity rate higher than 8%.

The mitigation measures are the same for both Regions, and include the following:

Bars: No indoor service at bars, and outside service must end at 11:00 p.m. Restrictions also include social distancing, table distancing, no dancing or standing indoors, and no seating of multiple parties at one table.

Restaurants: No indoor dining at restaurants, and outdoor dining must end at 11:00 p.m. Other restrictions include table distancing, no standing or congregating indoors while waiting for a table, reservations required, and no seating of multiple parties at one table.

Meetings, Social Events, and Gatherings: Limited to lesser of 25 guests or 25% of the room capacity, no party buses, and casinos and gaming must end at 11:00 p.m. and limited to 25% capacity.

Region 5 (Southern Illinois)

Earlier this week, new mitigation measures were announced for Region 5 (Southern Illinois) that place the same restrictions discussed above for Regions 7 and 8, and take effect on Thursday, October 22, 2020.

Region 1 (Northwestern Illinois, including Rockford area)

At the beginning of October, similar mitigation measures were imposed on Region 1, which remain in effect.

Regions 4 and 7 (Metro East and South Suburban)

In August, we reported on mitigation measures imposed on Regions 4 and 7. Those mitigation measures were lifted in September but yesterday's announcement means that this is the second time Region 7 is being restricted.

Monday, October 19, 2020

Court Issues Ruling in Lawsuit Challenging Election Day Closures

Monday, October 19, 2020 Julie Tappendorf

Last week, an Illinois circuit court issued a ruling in the case brought by the Illinois Municipal League (IML) against the State of Illinois to challenge the recent statute making November 3, 2020 (Election Day) a state holiday and requiring local government offices to close. The IML had argued that it was an unfunded mandate to municipalities, and the circuit court agreed in its ruling last week.

We have been asked whether the ruling extends beyond the two municipalities that were named as plaintiffs in the case (Southern View and Bolingbrook) to apply to other local governments. The ruling states that the statutory amendment that requires government offices to close on Election Day (i.e., Section 2B-10) "does not apply to local governments such as municipalities - including those municipalities that are members of IML and specifically, the Villages of Southern View and Bolingbrook." The IML has advised that the ruling provides each of its member municipalities the independent discretion to determine if their offices should or should not be closed on Election Day. The ruling itself seems broader in application, as it refers to "local governments" and not just municipalities. An appellate court ruling (or better yet, a statutory fix) would certainly help to provide some clarity, but given the short time period until Election Day, that may be unlikely. Local governments may want to reach out to their attorneys if they have questions about the ruling and how it applies to them.

You can read the decision on the IML's website here. You can also read the IML's summary of the lawsuit and ruling here.

Covid-19 / Elections

Friday, October 9, 2020

Qurum Forum Podcast 45: Housing and Homelessness

Friday, October 09, 2020 Julie Tappendorf

Planners and land use professionals will be interested in tuning into the most recent episode of Quorum Forum, Episode 45: Housing and Homelessness. In this episode, partners David Silverman and Dan Bolin discuss the latest on accessory dwelling units, recent constitutional challenges to local ordinances affecting homeless populations, and answer questions about the latest legal issues affecting governments.

You can watch the livestream recording here or listen and subscribe to the Quorum Forum Podcast here.

Land Use and Environmental / Social Media

Wednesday, October 7, 2020

IDPH COVID Guidance for Election Polling Places

Wednesday, October 07, 2020 Julie Tappendorf

Awhile back, the Illinois Department of Health (IDPH) issued COVID-19 guidance for election polling places. You can read the guidance on the IDPH's website here. A summary of some of the key provisions are below:

1. Each local election authority (usually the county or election commission) must adopt a written COVID-19 prevention plan for each polling place in its jurisdiction that includes at a minimum the following:

Contact person for implementation of plan
Safety instructions and training on cleaning and disinfection
Physical distancing protocols
Worker monitoring plan
Policies for ensuring compliance with social distancing, mask wearing, and disinfection of all affected surfaces

2. Placement of signage at entrances regarding face coverings

3. Distancing of election officials and pooling booths at least 6 feet apart

4. Visual cues for social distancing of voters

5. Designated break areas that allows physical distancing

6. Consider outdoor enclosures for waiting voters or encourage voters to wait in cars

7. Consider curbside voting, if practical

8. Ensure ventilation systems are operating properly

9. Replace shared objects (pens, cards, ballot covers) with single-use objects, where possible

10. Provide face coverings for voters who arrive without them

11. Voters cannot be screened for COVID-19 at the polling place nor prohibited from voting even if they refuse to wear a face covering

12. Consider plexiglass barriers

13. Routine cleaning and disinfecting of electronics and frequently touched objects and surfaces

14. Provide hand sanitizer to voters

15. Poll workers must wear a face covering at all times and practice good hygiene (hand washing; hand sanitizer)

Covid-19 / Elections

Tuesday, October 6, 2020

Upcoming APA Webinar on Drones

Tuesday, October 06, 2020 Julie Tappendorf

APA Planning and Law Division in partnership with APA Learn is presenting a webinar on October 22nd on Drones. Information about the webinar and registration is below:

Sky's the Limit: Drone Regulatory Implications

Thursday, October 22, 2020

12:00 p.m. - 1:30 p.m. CT

CM and CLE credit

Aerial drones (sometimes described as “UAS” or “UAV”), have a host of planning applications across urban, regional, rural, and agricultural geographies. From a general aerial surveying perspective, these applications frequently include site analysis and visualization, GIS mapping and modeling, and photosimulations.

Sub-disciplines within the planning field such as transportation, environmental, and disaster planning already utilize small drones’ aerial sensors for real-time data collection, infrastructure inspection, project management, and project development. These technologies can facilitate new ways of practicing community engagement. Given the broad applications of this technology across multiple planning disciplines, there is a general need for planners to enhance their awareness of relevant federal regulations, administrative guidance published by the Federal Aviation Administration, and court cases that collectively define the legal operation of small drones. Essentially, if you plan to use this technology in your planning practice, you must know the rules.

While acknowledging there are still significant gaps in the legal landscape for small drone operation, this program will discuss useful precedents to help you develop a use-case that is most likely to protect your planning practice and elected officials.. Even though state and federal legislatures continue to debate the regulatory environment to operate small drones, there is some present-day certainty regarding what state and local government can — and cannot — regulate.

Our expert panelists will explain the ways in which your city or state planning department could use small drones to enhance your planning efforts, prepare you to navigate the risks in the grey area, and offer insight on how to avoid the pitfalls.  

Information about speakers, cost, and registration can be found here.

Land Use and Environmental / Seminars

Monday, October 5, 2020

IDPH Releases Halloween Guidance

Monday, October 05, 2020 Julie Tappendorf

We reported previously about the CDC's guidance on fall holidays, including Halloween. The Illinois Department of Public Health (IDPH) has now released its own guidelines for fall activities, which supplement the recently-updated DCEO guidance on other seasonal staples, such as pumpkin patches, hayrides, and haunted houses.

Trick-or-Treating

Trick-or-treating is allowed, provided that groups are limited to household members, social distancing is maintained from other trick-or-treaters and people passing out candy, and that face coverings are worn in addition to any costume masks. The IDPH advises sticking to outdoor areas rather than multi-family buildings, frequent use of hand-sanitizer, and handwashing prior to consuming any candy. The IDPH also suggests some safer alternatives to traditional trick-or-treating. Instead of passing out candy at the door, the IDPH recommends putting out individually wrapped treats on a table more than six feet from the front door so that trick-or-treaters may help themselves. This method is also recommended in other settings, such larger-scale organized events involving tables set up with carefully-spaced candy in parking lots to avoid door-to-door travel.

Haunted Houses

Haunted houses are not allowed. The IDPH encourages open-air, one-way haunted forests or haunted walks where social distancing of 6 feet or greater and appropriate masking is enforced as an alternatives. Really scary haunted walks require increased social distancing due to the potential for screaming.

Pumpkin Patches/Apple Orchards

Attendance at outdoor pumpkin patches and apple orchards is limited to 25% capacity, with advance-purchase tickets advised. Indoor areas or rides of the sort that are sometimes featured at such locations must remain closed. Face coverings and social distancing are mandatory.

Hayrides

Hayrides are permitted up to 50% capacity with social distancing and face coverings required. The DCEO and IDPH both advise limiting hayride participants to members of the same household.

Adult Halloween Parties

The IDPH warns against large-scale parties and reiterates the 50-person limit for gatherings. While peole can visit bars (subject to regional or local restrictions), the IDPH provides a list of reasons why partaking in indoor costume parties is a bad idea and suggests avoiding such events, or minimizing the amount of time spent, together with the usual reminders to adhere to social distancing and face covering requirements.

Friday, October 2, 2020

Quorum Forum Podcast 44: APA-IL Planning Law Symposium

Friday, October 02, 2020 Julie Tappendorf

Ancel Glink's Quorum Forum Podcast just released its latest episode, Episode 44: APA-IL Planning Law Symposium.

The Illinois Chapter of the American Planning Association just held its virtual 2020 State Conference featuring the APA-IL Planning Law Symposium presented by Ancel Glink's Quorum Forum podcast. Trevor Dick from the City of Aurora joined Ancel Glink partners ShawnTe Raines, David Silverman, and Dan Bolin to discuss important legal issues affecting planners, including pandemic-time public meetings, economic recovery tools, defending religious land use cases, and more.

You can listen to the APA-IL Planning Law Symposium on the latest episode of Ancel Glink's Quorum Forum podcast here.

Land Use and Environmental / Social Media

Tuesday, September 29, 2020

PAC Says List of Blocked Social Media Users is Subject to FOIA

Tuesday, September 29, 2020 Julie Tappendorf

In a recent advisory opinion, the PAC office of the Illinois Attorney General found a public body in violation of FOIA because it failed to turn over records pertaining to blocked Twitter and Facebook accounts and users. The requester had filed a FOIA requesting a list of all persons or users who had been blocked on the village's social media accounts. The village denied the request saying it had no responsive records. The requester claims he then forwarded to the village a screenshot of his own account showing he had been blocked from the village's account. Shortly thereafter, he filed a request for review with the PAC.

The village argued that the requested records were not public records because they are maintained by the third party social media providers. The village also argued that compiling those records would require the creation of new records which is not required by FOIA. The PAC disagreed, finding that (1) the records are public records and (2) the village could download the information through a link which did not constitute the creation of records, in the PAC's opinion. 2020 PAC 63566

In what seems to be "dicta," the PAC also appeared to suggest that the village violated FOIA by not preserving lists of any accounts it had blocked. As we all know, FOIA is not a records retention statute - records retention and preservation obligations are contained in the Local Records Act. The Local Records Act is not within the PAC's jurisdiction, which is limited to FOIA and Open Meetings Act. It does not appear from the opinion that the village actually destroyed records which could be relevant under FOIA. Instead, the PAC seemed focused on the village's records retention obligations, which is a topic more properly addressed by the State Archivist or Local Records Commission.

The key takeaway is that social media records pertaining to blocked users or accounts will be considered public records by the PAC subject to release under FOIA.

Freedom of Information / Social Media

Monday, September 28, 2020

PAC Finds City Council Violated OMA in Call Updates on Pandemic Actions

Monday, September 28, 2020 Julie Tappendorf

As has been widely reported by local news, the Public Access Counselor (PAC) office of the Attorney General recently issued an opinion finding the City of Chicago City Council in violation of the Open Meetings Act for allegedly conducting phone meetings with a majority of a quorum of the Council outside of a noticed meeting. 2020 PAC 62918

ProPublica Illinois filed a request for review with the PAC claiming that the City Council had held a number of meetings by phone without complying with the OMA. The City responded that the calls were informal briefings about pandemic-related issues and did not constitute the discussion of public business to trigger the OMA. The City argued that the calls consisted of updates on public safety matters that were informational in nature, and did not include any discussion or deliberation of public business.

The PAC disagreed with the City, finding that all but one of the phone calls constituted a meeting that required compliance with the OMA (one of the challenged meetings did not involve a majority of a quorum of the Council so did not trigger a meeting). The PAC stated that public business under the OMA is not restricted to only those topics that public bodies take action on during a gathering but also includes information exchanged relating to matters that public bodies could potentially act on in the future, regardless of whether action is ultimately taken. As a result, the PAC found the City Council in violation of the OMA and ordered the City to make available for public inspection copies of summaries of these calls.

Covid-19 / Open Meetings

Thursday, September 24, 2020

Class Action Challenging Chicago's Water Main Replacement Program Dismissed

Thursday, September 24, 2020 Julie Tappendorf

The Illinois Supreme Court recently held that the trial court properly dismissed a class action lawsuit against the City of Chicago that had claimed that the City's water main replacement program increased the risk of harm to the plaintiffs of lead poisoning. Specifically, the Supreme Court determined that the plaintiffs did not establish that they suffered any bodily harm by any alleged negligence by the City, and that plaintiffs could not recover solely on their claim that the City's project increased their risk of harm. The Court also dismissed the plaintiffs inverse condemnation claims finding that the plaintiffs did not allege that the service lines were rendered unusable or that they were unfit for human use as a result of the replacement program, meaning they failed to show any measurable, pecuniary harm caused by the repair work. Berry v. City of Chicago.

Land Use and Environmental

Tuesday, September 22, 2020

Halloween Guidance Posted by CDC

Tuesday, September 22, 2020 Julie Tappendorf

Illinoisans have not yet received official guidance from the State of Illinois on Halloween activities and events. However, yesterday the CDC posted guidance about Halloween activities and other fall holidays on its website that may be of interest to readers.

The CDC has assigned various levels of risk to Halloween-related activities. For those wondering how traditional trick-or-treating will be categorized (or its close cousin, "trunk-or-treat"), the CDC has assigned these activities to its "high risk" category. Hayrides, indoor costume parties, and indoor haunted houses are similarly assigned to the high risk category of activities.

The CDC notes that traditional costume "masks" are not a substitute for face coverings used to protect against the virus but also warns against wearing a cloth face covering under a traditional costume mask if that makes it harder for the individual to breathe.

You can find the entire guidance here, but we have reprinted a summary of common Halloween activities and where they fall within the CDC's assigned categories of risk:

Lower risk activities

Carving or decorating pumpkins with members of your household and displaying them
Carving or decorating pumpkins outside, at a safe distance, with neighbors or friends
Decorating your house, apartment, or living space
Doing a Halloween scavenger hunt where children are given lists of Halloween-themed things to look for while they walk outdoors from house to house admiring Halloween decorations at a distance
Having a virtual Halloween costume contest
Having a Halloween movie night with people you live with
Having a scavenger hunt-style trick-or-treat search with your household members in or around your home rather than going house to house

Moderate risk activities

Participating in one-way trick-or-treating where individually wrapped goodie bags are lined up for families to grab and go while continuing to social distance (such as at the end of a driveway or at the edge of a yard)
Having a small group, outdoor, open-air costume parade where people are distanced more than 6 feet apart
Attending a costume party held outdoors where protective masks are used and people can remain more than 6 feet apart
Going to an open-air, one-way, walk-through haunted forest where appropriate mask use is enforced, and people can remain more than 6 feet apart
Visiting pumpkin patches or orchards where people use hand sanitizer before touching pumpkins or picking apples, wearing masks is encouraged or enforced, and people are able to maintain social distancing
Having an outdoor Halloween movie night with local family friends with people spaced at least 6 feet apart.

Higher risk activities

Participating in traditional trick-or-treating where treats are handed to children who go door to door
Having trunk-or-treat where treats are handed out from trunks of cars lined up in large parking lots
Attending crowded costume parties held indoors
Going to an indoor haunted house where people may be crowded together and screaming
Going on hayrides or tractor rides with people who are not in your household
Using alcohol or drugs, which can cloud judgement and increase risky behaviors
Traveling to a rural fall festival that is not in your community if you live in an area with community spread of COVID-19

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