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

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

  Tuesday, September 29, 2020    Julie Tappendorf

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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. 

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

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

  Monday, September 28, 2020    Julie Tappendorf

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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.

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Class Action Challenging Chicago's Water Main Replacement Program Dismissed

Class Action Challenging Chicago's Water Main Replacement Program Dismissed

  Thursday, September 24, 2020    Julie Tappendorf

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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.

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Halloween Guidance Posted by CDC

Halloween Guidance Posted by CDC

  Tuesday, September 22, 2020    Julie Tappendorf

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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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EEOC Releases Updated FAQ For Employers on COVID-19

EEOC Releases Updated FAQ For Employers on COVID-19

  Thursday, September 17, 2020    Julie Tappendorf

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Ancel Glink's employment law blog, The Workplace Report with Ancel Glink, recently reported on updated EEOC guidance to employers regarding COVID-19. We've reprinted the post below but we also encourage you to visit and subscribe to The Workplace Report here.

EEOC UPDATES ITS CORONAVIRUS GUIDANCE

Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and we suggest that employers take a look at them, which they can do by clicking here.

Last week the EEOC updated some of its FAQs, and we have highlighted a few of those updates below:

Employers Can Require Employees to Take a COVID-19 Test

Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances.

Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks too. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.

Employers Must Keep COVID-19 Information Confidential

The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe.

Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.

Employers Can Ask Employees to Identify Accommodations They Need Before Entering the Workplace

Employers can, and probably should ask employees for reasonable accommodations they need before coming back to work. Remember, a reasonable accommodation does not need to be the best accommodation or the accommodation the employee wants—it only needs to allow the employee to be able to perform his or her job.

Also, telework does not have to be granted as a reasonable accommodation. If the employee needs to come into the workplace, and safety precautions can be taken to allow the employee to perform his or her job in the workplace, the employer can require the employee to come in.

Don’t Lay Off or Furlough an Employee Just Because He or She Contracts COVID

Doing this is a violation of the ADA. It also is a violation of the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide employees who contract COVID with ten days of paid sick leave.

Original post authored by Matt DiCianni, Ancel Glink

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Court Addresses Challenge to a Municipality's DUI Impound Fee

Court Addresses Challenge to a Municipality's DUI Impound Fee

  Wednesday, September 16, 2020    Julie Tappendorf

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We've previously reported on a few cases involving challenges to municipal impound and towing charges. Recently, an Illinois appellate court considered a challenge to a City of O'Fallon ordinance that imposes a $500 charge on a driver whose vehicle is impounded for a DUI offense. Saladrigas v. City of O'Fallon

The Village ordinance imposes the $500 charge in addition to other fees imposed for towing and storage of the vehicle and penalties imposed for the DUI offense. A driver who was assessed this $500 charge challenged the ordinance, claiming it was an unconstitutional administrative fee as it was not reasonably related to the recovery of the Village's administrative costs. The Village argued it was a fine, not a fee, so there was no requirement that the Village establish that the amount was reasonably related to its administrative costs. The circuit court agreed with the Village, but on appeal, the Appellate Court rejected the Village's argument and determined that the $500 charge was an administrative fee, and not a fine. Important to the appellate court was language in the Village's ordinance that identified the charge as a fee, not a fine, and the purpose of the charge was to recoup costs incurred by the Village in processing DUI arrests.

It's important to note that the Appellate Court did not issue any ruling on whether the "fee" was constitutional or not, instead remanding it back to the circuit court to make a determination as to whether the amount of the fee was rationally related to the City's legitimate government interests in recouping costs.  Interestingly, although the court acknowledged that the City was a home rule municipality, it did not seem to take that into consideration in its ruling. It will be interesting to see how this case moves forward in the circuit court, particularly since many municipalities throughout the state impose similar charges on DUI impounds.

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Court Finds Sanitary District Conditions on Sewer Connection Constitutional

Court Finds Sanitary District Conditions on Sewer Connection Constitutional

  Tuesday, September 15, 2020    Julie Tappendorf

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An Illinois Appellate Court recently issued a ruling in favor of a Sanitary District, the City of Champaign, and other government bodies in a challenge to invalidate an intergovernmental agreement and other ordinances that affected the development of the plaintiff's property. I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District.

The challenged IGA and ordinances allowed the plaintiff to annex its property to the Sanitary District (and connect to the Sanitary District's sewer system) only if the plaintiff entered into an annexation agreement with the City of Champaign to annex the property to the City. The plaintiff objected to that condition, claiming it did not want to annex to the City because it would subject the property to the City's zoning jurisdiction. So, the plaintiff sued the various government defendants to invalidate the IGA and ordinances, claiming that the plaintiff was deprived of its valuable property interest without due process of law. The lawsuit also challenged the authority of the defendants to enter into the IGA. Finally, plaintiff claimed that the "coerced annexation" violated plaintiff's constitutional right to freely and voluntarily choose whether and how to participate in the electoral process of municipal annexation. 

The circuit court ruled in favor of the defendants. On appeal, the Appellate Court upheld the ruling in favor of defendants, rejecting plaintiff's challenge to the IGA and ordinances. First, the Appellate Court held that the Sanitary District had the authority to enter into the IGA and impose conditions on the connection to the District's sewer system. Second, the Appellate Court rejected plaintiff's argument that the condition imposed by the District requiring annexation circumvented the procedures contained in the annexation statute for forced annexations, finding the condition to be "leverage" to further annexation rather than a forced annexation. The Court also rejected plaintiff's due process argument, finding no entitlement under Illinois law to subdivision approval. In short, the Appellate Court rejected plaintiff's challenge to the constitutionality of the IGA and its conditions on annexation.

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Police Chief Fired For Posting Looting Meme on Personal FB Page

Police Chief Fired For Posting Looting Meme on Personal FB Page

  Monday, September 14, 2020    Julie Tappendorf

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It's been awhile since we have reported on social media activities that result in an employee's termination.  An Illinois municipality recently fired its police chief for posting a meme on his personal Facebook page that showed people looting from a store, with the following caption:

Looting....when free housing, free food, and free education just aren't enough

The village issued a press release about the termination:

We hold all of our public officials to the highest standards in their personal and professional lives in Orland Hills. This social media post is in incredibly poor taste. It does not reflect the values of the people of our community, and we will not tolerate such behavior from any of our public officials.

Just another reminder that employees should be mindful of what they post on social media. It is important to consider that "personal" does not necessarily mean "private" when engaging in online activities, and that the First Amendment does not protect all speech.

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Court Reject Plaintiffs' Challenge to the Obama Presidential Center Project

Court Reject Plaintiffs' Challenge to the Obama Presidential Center Project

  Friday, September 11, 2020    Julie Tappendorf

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Protect Our Parks, Inc. and Maria Valencia filed a lawsuit against the City of Chicago and the Chicago Park District to try stop construction of the Obama Presidential Center in Chicago’s Jackson Park. The plaintiffs claimed that the Obama Presidential Center project does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation. Specifically, they argue that the defendants violated Illinois’ Public Trust Doctrine by transferring control of public parkland to the Obama Foundation for a purely private purpose. They also argue that the defendants acted beyond their legal authority when they entered into a use agreement with the Foundation, violated the Fifth Amendment's "Takings Clause" by taking plaintiffs' property for a private purpose, and violated plaintiff's due process rights. 

The Seventh Circuit recently issued a ruling in this case finding in favor of the defendants on the federal law claims (takings and due process claims), and sending the case back to the district court to dismiss the state law claims (public trust and authority claims). Protect our Parks, et al. v. Chicago Park District, et al.

On the federal law claims, the Seventh Circuit determined that plaintiffs did not have adequate standing to bring those claims. The Court rejected plaintiffs' argument that it had standing based on its status as taxpayers, finding that the plaintiffs failed to show that they would suffer special damage different than what the public at large would suffer. In addition, since the construction of the project is privately funded rather than funded by the City, it wasn't clear how taxpayers would be injured for purposes of finding "standing" to challenge the project. In addition, plaintiffs did not establish any private property interest in Jackson Park for their federal law claims. Finally, the Court rejected plaintiffs' takings and due process claims, finding no merit to their substantive arguments.

In sum, the Seventh Circuit upheld the district court’s summary judgment ruling in favor of the defendants on the plaintiffs' federal claims, but ruled that the district court should have dismissed plaintiffs' state claims for lack of jurisdiction, and remanded the case back to the district court.

Post Authored by Joyce Jezeer & Julie Tappendorf, Ancel Glink

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Quorum Forum Podcast on Emails on Personal Devices Now Available

Quorum Forum Podcast on Emails on Personal Devices Now Available

  Thursday, September 10, 2020    Julie Tappendorf

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As we reported last week, Ancel Glink's Quorum Forum Podcast went "live" to discuss a new court decision about emails and texts on government officials' and employees' personal accounts. We also explained what qualified immunity is for local governments in the ongoing national conversation about claims against police. 

If you missed this episode when it went "live," no problem - you can tune into the audio recording on our Quorum Forum Podcast website here. You can also watch it on YouTube or Facebook.

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7th Circuit Upholds Illinois' Gathering Restrictions

7th Circuit Upholds Illinois' Gathering Restrictions

  Wednesday, September 09, 2020    Julie Tappendorf

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There have been a number of legal challenges to Governor Pritzker's COVID-19 related executive orders, many of which we have reported about on Municipal Minute. Recently, one of those challenges made its way to the 7th Circuit Court of Appeals (a federal appeals court). In Republican Party of Illinois v. Pritzker, the 7th Circuit upheld Governor Pritzker's restrictions on gatherings against a challenge that the gathering restrictions were unconstitutional because they favored the free exercise of religion over political speech.

The Republican Party argued that the Governor's gathering restrictions in various executive orders are illegal because they allow larger groups of people to gather in a church, mosque, or synagogue to worship, but the same number of people are not allowed to gather to discuss the upcoming presidential election. The Party claimed that this distinction is unconstitutional under the U.S. Supreme Court's ruling in Reed v. Gilbert (a case involving a challenge to a municipality's temporary sign regulations). The Court rejected the Party's argument, finding that the issue raised in Reed was focused on an alleged disadvantage to religious institutions and not the lifting of a burden from religious practice. The Court emphasized the special treatment given in the First Amendment to the free exercise of religion, which the Court distinguished from free speech. 

In ruling in favor of the Governor, the Court stressed that its ruling does not mean that religious institutions can do whatever they want. The Court provided specific examples (such as a Labor Day picnic, night at the movies event, or battle of the bands), which would be subject to the 50 person gathering restriction that applies to similar events hosted by non-religious groups. In other words, the special treatment provided to religious institutions under the executive orders should be limited to "free exercise of religion." As a result, the 7th Circuit rejected the Party's argument that the free exercise of religion must be treated the same as political speech with respect to limits on gatherings. The Court held that the free exercise of religion "enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities." 

The Court also rejected the Party's argument that the Governor is implicitly favoring Black Lives Matter protests by not enforcing the 50 perrson gathering restrictions on these protests. The Court found no evidence of that, but did caution the Governor that the Court would likely take issue with any preference for messaging of one type of event over another.

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Happy 9th Anniversary to Municipal Minute!

Happy 9th Anniversary to Municipal Minute!

  Tuesday, September 08, 2020    Julie Tappendorf

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On September 3, 2011, I started Municipal Minute as a way to share new cases, recently enacted legislation, and other legal updates that might be of interest to local government officials and employees. Nine years (and 1799 blog posts) later, we are still reporting on new developments in the area of local government law. We have shared hundreds of PAC opinions on FOIA and OMA issues, numerous case summaries and legislative updates, and provided our readers with more COVID-related developments than we can count. It has been my pleasure to share my nerd-love for local government law with all of you and I hope you can stick around for another nine years when we turn 18 and reach adulthood.

In case you weren't a regular reader in 2011 (and let's be honest, there were just a handful of you back then!), you can check out our first blog post here:  Tweeting into Trouble?

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Quorum Forum Live: Public Records on Personal Accounts

Quorum Forum Live: Public Records on Personal Accounts

  Tuesday, September 01, 2020    Julie Tappendorf

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Quorum Forum 43: Public Records on Personal Accounts – LIVE!

Join us for a live recording of the latest episode of Ancel Glink's Quorum Forum podcast at 12:00 p.m. on Thursday, September 3, 2020. Julie Tappendorf will join us to review a recent Illinois appellate court decision finding communications pertaining to public business in public officials’ personal text messages and e-mail accounts are public records subject to FOIA. Then, Kathy Kunkle explains what qualified immunity means for local governments in the ongoing national conversation about claims against police. Just visit www.youtube.com/ancelglink on Thursday at noon to listen and share your questions with us!

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