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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, February 28, 2020

Bills Would Affect Public Comment at Municipal Meetings

Yesterday we reported on three bills that propose to amend FOIA. Today, we report on 2 other bills that affect local government meetings.

HB 5013: A bill was recently introduced that would amend the Illinois Municipal Code to provide that municipalities cannot prohibit persons from addressing individual city council members, municipal officials, or municipal staff members at public meetings. The legislation would allow municipalities to impose regulations on when persons can speak at a meeting. As you know, the Open Meetings Act already requires public bodies (including municipalities) to provide an opportunity for persons to address public officials at public meetings. 

HB 5016: Another related bill would also amend the Illinois Municipal Code. If passed, this legislation would prevent municipalities from prohibiting members of the public or members of a city council from offering comments or input after a petitioner (defined as a person or entity who initiated and has a direct financial or ownership interest concerning a particular agenda item) has addressed the city council.

It's not clear whether either of these bills will move forward but we will certainly keep our readers posted.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Thursday, February 27, 2020

FOIA Bills Recently Introduced in Illinois House

We have seen a number of bills introduced in the Illinois house that propose various amendments to the Freedom of Information Act (FOIA). Below is a summary of three of these bills:

HB 5020: HB 5020, if passed, would amend FOIA to require public bodies to take all reasonable steps to provide requested records in a format that is "readable" by the requester. That includes making the record available in any format that is available to the public body. As you know, FOIA already requires public bodies to provide requested records in the electronic format specified by the requester, if feasible, or in the format in which the records are maintained by the public body.
HB 5021: A second bill would, if passed, prohibit a public body from charging a fee to a requester who is a taxpayer within the public body’s jurisdiction unless the FOIA request is made for a commercial purpose. Currently, FOIA permits public bodies to reduce or waive fees if a requester states a specific purpose for the request and indicates that the waiver or reduction is in the public interest.

HB 5022: The third FOIA bill would, if passed, eliminate a public body’s unilateral right to extend the time for a response by an additional 5 days and instead require a public body to obtain the requester’s agreement in writing to extend the time for response. 

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Wednesday, February 26, 2020

Bill Would Require Recording of All Public Meetings Under OMA

A bill was introduced earlier this month that would require all public bodies in Illinois to audio record all of their meetings and retain those recordings for a period of a year. The Open Meetings Act already requires public bodies to take minutes of all meetings. The OMA also requires public bodies to record its closed or executive sessions and retain those recordings for 18 months. Finally, the OMA authorizes members of the public to record open meetings. This bill, if passed, would impose the additional requirement that public bodies audio record all open meetings. HB 4580.

Tuesday, February 25, 2020

Bill Would Require Posting or Publishing of Vendor Information

Yesterday, we reported on a bill that, if passed, would require public bodies to post a list of government employees, consultants, and contractors who are paid $1,000 or more in a year. A companion bill was introduced on the same day that would also require public bodies to post on their websites a list of all entities who are paid more than $3,000 for products or services in a year, and that information would have to be updated monthly. If the public body has no website, then the vendor information would have to be published monthly in the local newspaper. The bill, if passed, would apply to home rule units as well. SB 3797

Monday, February 24, 2020

Bill Would Require Posting of Government Employee Compensation of $1,000

As noted previously, there are a lot of bills being introduced in the Illinois General Assembly and we can't possibly report on all of them. But, a bill that will be of interest to all local government units was introduced last week that would expand requirements for posting of employee compensation.

As we all know, state law currently requires units of local government to post the "total compensation" of any government employee who makes $75,000 per year or more. This new bill would not amend that requirement, but would add an entirely new provision to the Local Records Act to require a local government to post on its website the pay and benefits of every employee, consultant, contractor, and other personnel whose accumulated compensation or payments are $1,000 or more during the fiscal year. If the government doesn't maintain a website, then it has to publish this list on a monthly basis in the newspaper. The law would apply to all local governments, including home rule units.

The language in SB 3796 is below:
Sec. 25. Compensation greater than $1,000.
 (a) A unit of local government shall compile a list of the pay and benefits of every employee, consultant, contractor, and other personnel of the unit of local government whose accumulated payments or compensation are at least $1,000 during each fiscal year. Exempt material listed under Section 7 of the Freedom of Information Act shall not be included in the list. The list shall continue to be updated throughout the entire fiscal year by adding additional names of persons whose accumulated payments or compensation are at least $1,000.
 (b) A unit of local government shall publish on its website, if it has one, the public record compiled under subsection (a) and shall update the list at least monthly. If the unit of local government does not have a website, the unit of local government shall publish the list, on a monthly basis, in a newspaper of general circulation in the county in which the unit of local government is located.
 (c) Nothing in this Section shall be construed to require a unit of local government to compile or publish information about payments or compensation to jurors.
 (d) A home rule unit may not compile or publish the list of the pay and benefits under this Section in a manner inconsistent with this Section. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Friday, February 21, 2020

Judge Rules in Favor of City in TRO Relating to Residency Distance Requirements for Registered Sex Offenders

Please note this post was modified on 2/25/2020

On January 31, 2020, a Kane County judge ruled in favor of the City of Aurora in denying a temporary restraining order (TRO) requested by Wayside Cross Ministries regarding the City's enforcement of a state statute that prohibits a "registered child sex offender may not reside within 500 feet of a “playground, child care institution, day care center, part day child care facility, day care home, group day care home, or a facility providing programs or services exclusively directed toward persons under 18 years of age.” 

In 2019, the group had filed a federal lawsuit against the City of Aurora (which was voluntarily dismissed and then later refiled in state court) arguing the City violated their right to freedom of speech and the freedom of religion when the City enforced an Illinois state law restricting residency requirements for child sex offenders. The City responded that that because the park (which is within 500 feet of the Wayside Cross Ministries property) is used as a playground, the occupancy by registered child sex offenders violates the residency requirements of state statute.

Corrected Post Authored by Michael Halpin & Julie Tappendorf, Ancel Glink

Thursday, February 20, 2020

Candidate Removed From Ballot for Using Maiden Surname

As we get closer to the March primary in Illinois, we are starting to see a few more election-related cases. One of these cases related to a challenge to a candidate's petitions to be included on the ballot for the office of circuit court judge in Cook County that was decided last week. Oberholtzer v. Cook County Officers Electoral Board, et al.

Caroline Patricia Jamieson filed nominating papers to run as a candidate for the office of circuit court judge. An objection was filed against her nominating papers on the basis that the candidate failed to disclose on her nominating papers that she had changed her name in the past 3 years. The Cook County Electoral Board held a hearing and rejected the objection, finding that the candidate's nominating papers were valid. The objector appealed, and ordered the candidate's name be removed from the ballot, leading to another appeal, this time by the candidate.

The court noted that the Election Code requires the candidate to use his or her given name and surname. In analyzing whether the candidate complied with that statute, the appellate court reviewed the evidence submitted at the Electoral Board hearing. First, the court found that the objector had submitted evidence that the candidate was commonly known by her married surname (Golden) rather than her maiden name (Jamieson) that she used on her nominating petitions. Second, the court found that the candidate was registered to practice law under her married name (Golden). Third, the court found that the candidate had affirmatively changed he name to Golden with the Supreme Court, ARDC, Secretary of State, mortgage company and Cook County Clerk's office, among other agencies. Based on the evidence heard by the Electoral Board, the court determined that the candidate was required to use her married surname (Golden) on her nominating papers rather than her maiden name (Jamieson). As a result, the candidate's nominating papers were invalid and she was not eligible to be on the March 17th ballot.

Wednesday, February 19, 2020

Court Finds in Favor of Public Body on FOIA Request for Employee Electronic Communications

In Shehadeh v. Downey, 2020 IL App (3d) 170158-U, a requester filed several FOIA requests with the Kankakee County Sheriff’s Office (KCSO), seeking a variety of records relating to the requester's imprisonment at the Jerome Combs Detention Center (JCDC). He requested his inmate file, emails and text messages from both personal and work phones of KCSO employees, video footage of the correctional facility, and the internet search engine queries performed by KCSO staff.

He later filed a lawsuit against the Sheriff and other KCSO employees under FOIA claiming the Sheriff refused one of his requests without explanation, failed to timely respond to others, and continued to withhold information that he had requested. 

The Sheriff voluntarily provided some of the records to the requester after the filing of the lawsuit but refused to release others. The Sheriff argued the remaining records were not public records kept or maintained by the KCSO or were exempt under FOIA. Ultimately, the case made its way to the appellate court which ruled in favor of the Sheriff.

We wanted to highlight aspects of the case relating to the request for internet search engine queries and text messages/emails. First, the court noted that FOIA does not require the compilation of data not ordinarily kept by a public body. In this case, the Chief of Corrections for Kankakee County had filed an affidavit attesting that search engine histories and related information were not maintained or kept by the JCDC or KCSO. Since complying with the request would have required the KCSO to create new documents that were not maintained by the KCSO, the appellate court held that the internet search engine queries were not public records subject to FOIA.

Next, the court held that the text messages and emails were exempt from disclosure under both sections 7(1)(e) and 7(1)(b) of FOIA. Here, we want to focus on the court’s application of 7(1)(b) and its determination that the text messages and emails on the KCSO work and personal cell phones are “private information.” The appellate court discussed the appellate court decision in City of Champaign v. Madigan that held that certain texts sent by elected officials on personal cell phones were subject to FOIA, but noted that the Champaign court "merely held that electronic communications that city officials sent to each other on their personal devices while conducting public business during a business meeting were subject to FOIA" but did not hold that any electronic communication sent or received from a public employee’s personal or work electronic device would be subject to FOIA, rejecting the requester's broad argument to the contrary. Further, the court noted that the requester failed to limit his request to communications that were government-related. Finally, the court found that even if the records were public records, they would fall within the definition of "private information" under 7(1)(b) of FOIA because release could jeopardize inmate and jail security.

This is the first time a court has extended the "private information" exemption in 7(1)(b) to text messages and/or emails sent or received by employees on their personal devices. Because it's not clear that this particular analysis would extend beyond the third district appellate court or the facts of this case, government officials and employees may want to be careful on reading too much into this decision without consulting with their own attorneys and considering how the Champaign case might apply to their communications.

Post authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Tuesday, February 18, 2020

PAC Finds Public Body in Violation of FOIA for Failure to Respond

Two binding PAC opinions in the span of one week! Last week we reported on PAC 20-001 that found a public body in violation of the OMA for failing to timely approve meeting minutes. Today, we report on PAC 20-002 in which the PAC found a public body in violation of FOIA for failing to respond to a FOIA request and to the PAC's request for review. Nothing groundbreaking or new here - public bodies are obligated to respond to FOIA requests. 

Friday, February 14, 2020

Police Chiefs Resign After Admitting to Fake Social Media Accounts

You may have read about this story in the news recently. Last week, a number of news agencies reported that the Burlington, Vermont Police Chief was forced to resign from her position for creating and using fake Facebook accounts. What is interesting about this story is that the Chief's predecessor had also resigned from office last December after admitting he had created a fake Twitter account that appeared to focus on a blogger who was critical of the police department. After the current Chief was promoted to replace the outgoing Chief, she also admitted that she too had created fake Facebook accounts where she criticized the blogger and also city council members. 

Thursday, February 13, 2020

New Podcast Episode: Live from the IAPD/IPRA Conference!

Ancel Glink just released Quorum Forum Podcast Ep. 34Live from the IAPD/IPRAConference!

Recorded live at the Chicago Children's Museum, Ancel Glink attorneys join the Quorum Forum podcast to cover highlights from the IAPD/IPRA Soaring to New Heights Conference! Podcasting from the top of a fire truck, Adam Simon covers park district finance, and regulating cannabis use and other controversial activities in parks. Then, Matt DiCianni discusses what cannabis means for parks employees, while Ashton Tunk talks about recent changes to the Freedom of Information Act. 

What are your favorite parts of the park conference? Email us at podcast@ancelglink.com

Download the Cannabis Response Checklist for Parks

Register for the Feb. 26 APA-CMS Bar Exam Planning Law Session:

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer.

Wednesday, February 12, 2020

PAC Finds Violation for Failure to Timely Approve Meeting Minutes

The Illinois Public Access Counselor (PAC) just issued its first binding opinion of 2020. In PAC 20-001, the PAC found a public body in violation of the Open Meetings Act for failing to approve its meeting minutes in the time limits required by that statute. The public body had scheduled approval of its meeting minutes from 3 meetings in September at its November 12, 2019 meeting. 

A request for review was filed with the PAC claiming that the meeting minutes were not approved in the time period required by state statute. The PAC first noted that section 2.06(b) of the OMA requires approval of open session meeting minutes "within 30 days after that meeting or at the public body's second subsequent regular meeting, whichever is later." The public body filed a response with the PAC acknowledging that the minutes were not timely approved but that staff shortages and an increase in the number of meetings had created a backlog. The PAC found no exception in the OMA that would authorize any delay in approving meeting minutes. As a result, the  PAC found the public body in violation of the OMA and directed it to develop a protocol to comply with the OMA.

This is a good reminder to all public bodies to make sure you regularly schedule the approval of your meeting minutes within the statutory time-frame.

Tuesday, February 11, 2020

Bill Would Ban Red Light Camera Ordinances

Last Wednesday, an Illinois House committee voted unanimously to advance a bill that bans the use of red-light cameras in municipalities in the Chicago and St. Louis area. A similar bill was also introduced in the Illinois Senate that would include home rule municipalities in the ban.

HB0322, if passed, would prohibit non-home rule units of government in the counties of Cook, DuPage, Kane, Lake, Madison, McHenry, St. Clair, and Will from enacting or enforcing red light camera ordinances. Although it still needs to pass a full vote in the House and be approved in the Senate, if passed, the bill would certainly have implications for local governments that have enacted red light camera ordinances and have entered into agreements with service providers for administration of the cameras because the law would have retroactive effect.

SB2902, if passed, would extend the ban on red light camera ordinances to home rule municipalities and be effective state-wide.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Monday, February 10, 2020

Bill Would Require Hearing Before Small Cell Wireless Facility is Approved

As our readers know, the Illinois General Assembly previously enacted legislation to provide certain protections for small cell wireless providers to install their facilities. Those protections included restrictions on municipal control over the installation of these facilities. Most Illinois municipalities subsequently enacted ordinances to implement the statutory limitations and procedures on the approval process and standards for small cell wireless facilities. 

Recently, a bill was introduced in the Illinois House that would allow property owners to sign and submit a petition to the municipality demanding that the municipality hold a hearing prior to the approval of a small cell wireless facility or facilities. HB 4653. The petition would have to be signed by the lesser of (1) 250 property owners or (2) 40% of the property owners within 1,000 feet of where the facility would be located. The "authority" would be required to hold the public hearing at a regular meeting and hear testimony and receive evidence from the property owners. The authority is required to forward this evidence and testimony to the FCC following the hearing. The proposed legislation states that the hearing must not interfere with the statutory time limitations imposed on the municipality in deciding an application.

This bill raises a lot of questions, including what "authority" is to hold the hearing (plan commission? village board/city council?), whether a zoning hearing that might otherwise be required would satisfy this requirement, and what happens if the petition is filed after an application is scheduled for approval or actually decided. Also, the legislation raises question about the relevancy of any testimony and evidence given the narrow constraints of municipal control over these facilities due to state and federal laws. It remains to be seen whether this legislation will go anywhere but if it does, hopefully these issues will be further fleshed out so municipalities have clarity on the scope, relevancy, and timing of this hearing requirement.

Friday, February 7, 2020

Property Owner Failed to File Lawsuit Within One Year

In 2007, in conjunction with an IDOT right of way project, a municipality relocated a fire hyrdrant on private property. In 2011, the property owner contacted the municipality demanding $2500 for an easement to allow the hydrant to maintain on his property. The municipality countered with a $500 offer, which was rejected. 

Three years later, the property owner filed a lawsuit against the municipality. The court ruled in favor of the municipality, finding that the property owner filed his lawsuit too late. On appeal, the appellate court agreed with the ruling in favor of the municipality, finding that Section 8-101(a) of the Tort Immunity Act requires lawsuits like this one to be filed within one year of the claimed injury. Here, the court determined that the property owner was aware of his injury in 2011, but waited until 2014 to file his lawsuit - 3 years too late. Bessette v. Village of Plainfield

Thursday, February 6, 2020

Airport Expansion "Takings" Case Goes Back to Trial Court

The Illinois courts don't often hear "takings" cases, which are usually brought in federal court. In a takings case, a property owner claims that his or her property rights have been "taken" by the government without just compensation in violation of their constitutional rights. That's the claim property owners made against an Illinois municipality that operates an airport following an airport expansion project. Jackiewicz v. Village of Bolingbrook.

A group of property owners who live near Clow International Airport brought a lawsuit against the Village of Bolingbrook, the owner and operator of the airport, after they claim the Village moved forward with a 2015 airport expansion project knowing it would "dramatically and negatively impact their quality of life and decrease their property values." The owners claimed that the Village made "low ball offers for their air rights" that did not compensate them for the value of the owners' air rights that the owners alleged were "taken" by the expansion. 

The trial court ruled in favor of the Village on various grounds, including  that the owners did not file their lawsuit within the applicable statutory time period and that the owners failed to demonstrate that the 2015 project damaged their property rights. The owners appealed.  The appellate court reversed that ruling, and sent the case back to the trial court for further proceedings. Specifically, the appellate court found that the issue of whether the 2015 expansion project damaged or "took" the owners' property is a fact issue that was in dispute; therefore, the trial court prematurely decided the case when it ruled in favor of the Village without hearing evidence on the owners' claims of a "taking" of their air rights.