Attorney General Issues Opinion on Compatibility of Offices

Attorney General Issues Opinion on Compatibility of Offices

  Thursday, February 25, 2021    Julie Tappendorf

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We don't see a lot of Attorney General opinions except for those issued by the Public Access Counselor's office regarding Open Meetings and FOIA complaints. But the Attorney General did just release an opinion regarding incompatibility of two offices earlier this month. Att'y Gen. Op. 21-001.

As background, there are certain government offices that are "incompatible" with one another - in other words, a person serving in one government office cannot simultaneously serve in another incompatible government office. There are a number examples in state statute, Attorney General opinions, and even a few court cases that discuss the "incompatibility of office" doctrine. The purpose of this doctrine is to avoid any potential or inherent conflicts of interest that might come up for the office holder who may have divided loyalties on a particular matter before both government bodies or may be serving in one position that has oversight over the other position. 

As an example of an incompatible office, there is a state statute that prohibits a trustee or alderman in a municipality from holding any other office under the municipal government during the officer's term of office. 65 ILCS 5/3.1-15-15. The Attorney General has also opined that a village trustee or alderman cannot serve on a school district or as park board president.

In the above-referenced Attorney General opinion, the Attorney General was asked to provide an opinion as to whether a member of the Illinois state senate could simultaneously serve in the Office of Assistant States Attorney. The Attorney General found those two offices incompatible. Specifically, the Attorney General noted that both offices are offices of the state with the States Attorneys office being part of the "executive branch" and the State Senate being part of the "legislative branch." As a result, simultaneous service in both offices would violate the separation of powers doctrine in the Illinois constitution. 

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Seventh Circuit Overturns $44.7 Million Jury Verdict Against City in Shooting Incident

Seventh Circuit Overturns $44.7 Million Jury Verdict Against City in Shooting Incident

  Wednesday, February 24, 2021    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently overturned a jury verdict against the City of Chicago awarding $44.7 million in damages relating to a shooting involving an off duty police officer. First Midwest Bank as Guardian v. City of Chicago.

According to the court opinion, the plaintiff claimed that a Chicago police officer shot his friend during an argument when the two had been drinking. The friend suffered traumatic brain and other injuries. The friend sued the City of Chicago seeking damages for the shooting, arguing that the City was responsible for the officer's conduct. Specifically, the plaintiff claimed that the City's failure to have an "early warning system" to identify officers who might engage in misconduct, failure to adequately investigate and discipline officers who engage in misconduct, and the "code of silence" among police officers contributed to the shooting incident. The City argued that the officer was off duty and not acting under "color of state law" at the time of the shooting, so the City was not liable under Section 1983 of the Civil Rights Act. The case made its way to a jury which found the City of Chicago liable and awarded $44.7 million in damages to the plaintiff. The jury found that two of the City's policies - its failure to maintain an adequate early warning system and failure to adequately investigate and discipline officers - caused the officer to shoot his friend. 

The City appealed to the Seventh Circuit Court of Appeals, which reversed the jury verdict and award. The appeals court found that although the injuries suffered by plaintiff from the shooting incident were grievous, the City was not responsible for the officer's actions, where the officer was acting as a private citizen and not as a City police officer. The Seventh Circuit noted that Section 1983 imposes liability only when a municipality has violated a federal right. Since none of the plaintiff's federal rights were violated, the court of appeals overturned the jury verdict against the City of Chicago.

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PAC Issues Binding Opinion on Juvenile Victim Records

PAC Issues Binding Opinion on Juvenile Victim Records

  Friday, February 19, 2021    Julie Tappendorf

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In a rare binding PAC opinion in favor of a public body, the PAC found that a police department properly withhold records relating to alleged sexual offenses against a minor in PAC Op. 21-002. 

In October 2020, a reporter submitted a FOIA request to a police department seeking records about complaints or allegations involving a named person and a church from 2018 through 2020. The records concerned alleged sexual offenses perpetrated by an adult against a minor. The Department denied the request in its entirety citing FOIA exemptions 7(1)(a), 7(1)(b) and 7(1)(c). 

After the requestor appealed the denial to the Public Access Counselor of the Attorney General's office, the PAC issued a binding opinion finding in favor of the public body, concluding that the department did not violate FOIA by denying the FOIA request in its entirety. 

First, the PAC concluded that the department properly withheld the requested records under FOIA section 7(1)(a), which exempts from disclosure information specifically prohibited from disclosure by state law, because information identifying children who are victims or alleged victims of criminal sex offenses is confidential and prohibited from disclosure by section 3 of the Privacy of Child Victims of Criminal Sexual Offenses Act. 

The PAC also concluded that the Department properly withheld the requested records in their entirety under FOIA section 7(1)(c), which permits withholding information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. The department cited examples of Illinois laws taking extra precautions to protect the confidentiality of child sexual abuse information, arguing that because the records are replete with sensitive sexual abuse information, it would be nearly impossible to redact the report to remove any information that could be used to identify the minor. The PAC agreed, reasoning that the significant personal privacy interests of both the alleged victim, who was a minor at the time of the alleged offense, and the suspect, who was not arrested or charged with a crime, outweigh the relatively weak public interest in disclosure. As a result, the department properly withheld the responsive records under FOIA section 7(1)(c). 

However, the PAC rejected the department's argument that the requested records were exempt from disclosure under FOIA section 7(1)(a) based on the Juvenile Court Act of 1987 (JCA). Although the department argued that it was required to withhold the records regarding alleged victims of sex offenses under JCA section 5-905(2), the PAC disagreed. Specifically, the PAC clarified that the JCA’s definition of juvenile law enforcement records expressly excludes records that identify a juvenile as a victim. Furthermore, the PAC clarified that JCA section 5-905(2) only prohibits disclosure of information identifying victims and alleged victims of sex offenses that are committed by minors. Because the law enforcement records at issue concerned alleged criminal offenses perpetrated by adults against minors, the Department improperly cited FOIA section 7(1)(a) to withhold the records under the JCA. Since the denial was justified based on the previous arguments accepted by the PAC, this did not affect the PAC's ultimate finding that the department's decision to withhold all of the records was proper under 7(1)(a) and 7(1)(c).

Post Authored by Eugene Bolotnikov, Ancel Glink

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Upcoming APA Webinar on Fair Housing Law

Upcoming APA Webinar on Fair Housing Law

  Thursday, February 18, 2021    Julie Tappendorf

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The American Planning Association (APA) Planning & Law Division is presenting a webinar on February 25, 2021 on fair housing. Information about the topic, speakers, and registration is below:

Fair Housing Law Under the Biden Administration

APA Planning & Law Division 

Thursday, February 25, 2021 

noon - 1:30 p.m. CST 

The Biden Administration has signaled its intent to make major reforms to fair housing law, modifying or reversing many of the changes to regulation enacted in the prior four years. This webinar will forecast how the Biden Administration will approach these issues, including the potential reinstatement of the Affirmatively Furthering Fair Housing Rule and the modification of the disparate impact standard under the Act. Panelists will provide perspective on how these changes will affect planners and land use lawyers alike, and reflect on the various policy and legal considerations at stake.

Featured panelists include Anika Singh Lemar, a Professor at Yale Law School specializing in land use and residential segregation; Daniel Lauber, a land use attorney and planner with over 40 years of experience working on fair housing issues; and Zachary Best, a civil rights attorney currently litigating a challenge to fair housing regulations instituted in 2020.

You can find registration information here or email Nick Abbott with questions about the webinar at nicholasabbott96@gmail.com

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Illinois Bills Would Affect Zoning and Land Use Authority

Illinois Bills Would Affect Zoning and Land Use Authority

  Wednesday, February 17, 2021    Julie Tappendorf

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Yesterday, we reported on a few bills introduced in the Illinois General Assembly relating to local government liability and immunities. Today, we wanted to mention a few recently introduced bills that relate to local government zoning and land use authority. Many of these will look familiar as they or similar bills have been introduced in previous legislative sessions but were not ultimately enacted.

HB 812 - Prohibiting Municipal Regulation of Accessory Dwelling Units (ADUs)

If passed, this bill would prohibit local governments (including municipalities) from banning accessory dwelling units, sometimes referred to as granny flats, in-law suites, coach houses, and a number of other names. The bill would allow reasonable regulations regarding the size and location of ADUs except to the extent that those regulations have the effect of prohibiting ADUs. The bill would preempt home rule authority.

SB 170 - Protection of Vegetable Gardens

If passed, this bill would expressly authorize the cultivation of vegetable gardens on private property and prohibit local government regulation inconsistent with this express authorization. Local governments would be authorized to regulate the height, setback, water use, fertilizer use, or control of invasive or unlawful species so long as those regulations do not preclude vegetable gardens. This bill would preempt home rule authority.

HB 811 - Electronic Publication of Notices

Although not technically a zoning or land use bill, if passed, this bill would have significant impact on required notices by allowing local governments to publish required notices (including notices for zoning public hearings) on its website rather than in a local newspaper. This bill or something like it has been introduced for many years but has not gone anywhere, maybe partly due to the opposition from newspaper publishers.

SB 42 - Cannabis Sales in Unincorporated Areas

If passed, this bill would prohibit counties from allowing the sale of cannabis on unincorpoated property that is located within 1 1/2 miles of a municipality that has prohibited cannabis sales in its jurisdiction.

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Government Immunity and Liability Bills

Government Immunity and Liability Bills

  Tuesday, February 16, 2021    Julie Tappendorf

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A number of bills were recently introduced in the Illinois General Assembly that could impact local governments. We wanted you to be aware of these so you can monitor their progress through the legislature.

Eliminate Immunity for the Failure to Diagnose

HB 454 would eliminate protections for local governments and public employees from liability caused by the failure to diagnose mental or physical illness.

Codify the Public Duty Rule

SB 95 would codify the public duty rule and restore protections for local governments and public employees. Readers will remember that the Illinois Supreme Court eliminated the public duty rule (which provided certain legal defenses to local governments) in 2016 in Coleman v. East Joliet Fire Protection District - you can read our post on that case here.

Remove Liability for Cyberattacks

HB593 and SB 96 would protect local governments and public employees from liability caused by cyberattacks. 

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

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Seventh Circuit Finds Nativity Scene On Courthouse Lawn Constitutional

Seventh Circuit Finds Nativity Scene On Courthouse Lawn Constitutional

  Wednesday, February 10, 2021    Julie Tappendorf

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Each holiday season, an Indiana county allows private groups to set up a lighted Christmas display on the front lawn of its historic courthouse, typically consisting of a nativity scene, Santa Claus in his sleigh, reindeer, carolers and large candy-striped poles. Woodring, a county resident, sued the county to take down the nativity scene, arguing that the nativity scene violates the First Amendment’s Establishment Clause because it conveyed the county’s endorsement of a religious message. In response, the county agued that the nativity scene was part of its secular celebration of a public holiday. The district court sided with Woodring and held that the county may not display the nativity scene in its current arrangement. The county appealed.

In Woodring v. Jackson County, Ind, the Seventh Circuit reversed the district court and held that the county’s use of the nativity scene in a Christmas display did not violate the Establishment Clause of the First Amendment. In rejecting Woodring’s claims that the nativity scene was a “government endorsement” of a religious message, the court reasoned that the display was linked to a longstanding tradition of using the nativity scene in broader holiday displays to “depict the historical origins of Christmas.” The court noted that the county’s nativity scene is part of a larger Christmas display that contains various other symbols of Christmas, including Santa Claus, a reindeer, four carolers, and seven prominent candy-striped poles. Because the display consisted of both religious and nonreligious symbols of Christmas, the court found that the nativity scene was used in a broader context to depict the historical origins of the National Holiday. As a result, the court held that the nativity scene on the courthouse lawn did not violate the Establishment Clause of the First Amendment.

Post authored by Rain Montero and Julie Tappendorf, Ancel Glink

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New Quorum Forum Podcast Episode 49: Not in My Park!

New Quorum Forum Podcast Episode 49: Not in My Park!

  Monday, February 08, 2021    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast just released Episode 49: Not in My Park! Regulating Park Activities. A summary of this episode is below:

Park agencies manage many acres of public space where sometimes controversial activities take place. What authority does your organization have to regulate protests, public art, and more, while respecting the individual rights of park patrons? Find out as Adam Simon and Dan Bolin discuss during "Not in My Park!" proudly presented by Ancel Glink’s Quorum Forum podcast at the IAPD/IPRA Soaring to New Heights 2021 Virtual Conference!

What controversial activities are impacting your parks? Email us at podcast@ancelglink.com 

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Seventh Circuit Rejects Developer's Claims Against City Manager

Seventh Circuit Rejects Developer's Claims Against City Manager

  Friday, February 05, 2021    Julie Tappendorf

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In 2018, the City of DeKalb approved a Preliminary Development Incentive Agreement (PDA) with a developer regarding potential financing for the redevelopment of property in the City. The PDA provided that if the developer met certain contingencies specified in the PDA, the City would provide an approximate $2,500,000 Development Incentive in Tax Increment Financing (TIF) funding. The PDA imposed certain conditions and obligations on both parties before the agreement was final and prior to funds being distributed to the developer. 

After conducting due diligence into the developer, the City Manager recommended that the City terminate the PDA, and the City Council unanimously voted to terminate the PDA. The developer then filed a lawsuit claiming, among other things, that the City Manager violated the developer's First and Fourteenth Amendment rights. After the district court dismissed Fisk’s federal claims for failure to state a claim with prejudice, the developer appealed to the Seventh Circuit Court of Appeals. 

In 145 Fisk, LLC v. Niklas, the Seventh Circuit rejected the developer's First Amendment retaliation claim against the City Manager. The developer had claimed that the City Manager blocked a development incentive and retaliated against it because the company’s attorney member exposed unflattering information about the City Manager and named him in discovery in an earlier, unrelated lawsuit. The Seventh Circuit found that this claim had been properly dismissed by the district court because the developer did not engage in protected activity. The Seventh Circuit also found that the developer had waived any retaliation claim based on the exercise of free speech rights because it had not raised that claim with the district court. The Seventh Circuit also rejected the developer's procedural due process claim since the developer had no constitutionally protected property interest because the PDA only provided “a right to acquire property” and not a right in the property itself. Lastly, the Seventh Circuit rejected the developer's equal protection claim, finding that the City Manager had a rational basis for recommending that the developer not receive financing under the PDA.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Cook County Adopts Landlord Tenant Ordinance

Cook County Adopts Landlord Tenant Ordinance

  Thursday, February 04, 2021    Julie Tappendorf

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Last week, the Cook County Board adopted an ordinance to enact landlord-tenant regulations in Cook County. Although the ordinance itself does not expressly regulate the conduct of municipalities within Cook County, the ordinance will still be of interest to municipalities because the scope of these new regulations are not limited to the unincorporated areas of Cook County. 

The approved ordinance, most of which goes into effect in June, includes among other provisions, the following:

• Provisions mirroring statutory restrictions that prohibit landlords from retaliating against tenants who file complaints with government agencies or from evicting tenants without following the proper eviction process.
• A prohibition on landlords charging late fees greater than the ordinance allows.
• Provisions for termination of leases by tenants.
• Limits on the amount of required security deposits and a requirement that these deposits be returned within 30 days.
• Time-lines for landlords to address maintenance issues.

This is by no means an exhaustive list of the new regulations.

The ordinance does contain some exemptions. For example, landlords of buildings with six or fewer units are not subject to the ordinance. Rentals of single family homes are also exempt.

In addition, the County ordinance contains the following provision which attempts to preempt municipal authority to regulate the landlord-tenant relationship in a different manner:

This Ordinance is subject to the home rule as established by the Constitution of the State of Illinois Article VII Section 6. Powers of Home Rule Units. This Ordinance regulates all residential buildings and structures that exist or are erected, constructed, altered, demolished, or relocated within the boundaries of Cook County, excluding those cities, villages, and incorporated towns that maintain promulgated regulations that establish both the rights and obligations of both the tenant and the landlord in the rental of dwelling units. The regulations must contain specific language defining and regulating the relationship between the tenant and landlord, policies protecting and promoting the public health, safety, and welfare of tenants, and remedies under a rental agreement in order to be excluded from this Ordinance.

Based on the language in the ordinance, it appears the County is attempting to preempt local control, including a municipality's authority to adopt contrary regulations on the landlord-tenant relationship or to decide not to regulate the relationship at all. Of course, this ordinance still has to be interpreted in light of the limitations on home rule authority in the Illinois constitution. Specifically, Article VII, Section 6 of the Illinois Constitution provides that if a home rule county ordinance conflicts with a municipal ordinance, the municipal ordinance will prevail within the municipality. So, just as Cook County municipalities did when Cook County adopted its minimum wage and sick leave ordinances, these municipalities may want to analyze this County ordinance in the context of their own municipal ordinances.

  

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Most Regions in Illinois Now in Phase 4 of Restore Illinois Plan

Most Regions in Illinois Now in Phase 4 of Restore Illinois Plan

  Wednesday, February 03, 2021    Julie Tappendorf

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As new COVID cases continue to decline, Illinois has loosened and, in some cases, lifted the "tier" mitigation measures that were imposed in November. As of today, most of the State's regions are now in Phase 4, with no additional tier restrictions (Regions 1, 2, 3, 5, 6, 7, 10, and 11 are in Phase 4). Regions 8 and 9 (Lake, McHenry, Kane, and DuPage counties) are still in Tier 1, while Region 4 (St. Louis area) is in Tier 2. You can keep up on these changes by visiting the IDPH website here. Note that on February 2nd, the Cook County Health Department recently issued an order that is stricter than the State restrictions and states that Cook County remains in Tier 1 notwithstanding the Governor's decision to move Cook County to Phase 4.

Phase 4 regulations can be found here and some of the key restrictions are summarized below:

Restaurants and Bars

• Indoor dining and drinking now permitted for parties of up to 10 people
• Seated areas should be arranged so that tables allow for 6 feet between parties; impermeable barriers may be installed between booths which are less than 6 feet apart

Retail and Service Counter

• Continue capacity limit of no more than 50% occupancy

Personal Care

• Continue capacity limit of no more than 50% occupancy

Indoor/Outdoor Recreation

• Reopening select indoor recreation facilities (e.g., bowling alleys, skating rinks); indoor playgrounds and trampoline parks should remain closed
• Indoor recreation to operate at lesser of 50 customers or 50% of facility capacity

Museums

• Capacity limit of no more than 25% occupancy
• Guided tours should be limited to 50 or fewer people per group

Meetings and Social Events

• Limit to the lesser of 50 people or 50% of room capacity
• Multiple groups may meet in the same facility if they are socially distanced and in separate rooms

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Local Government Official "Recall" Bill Introduced

Local Government Official "Recall" Bill Introduced

  Tuesday, February 02, 2021    Julie Tappendorf

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A number of bills were introduced last week that will likely be of interest to local governments. One of those bills deals with the "recall" of elected officials. Illinois HB 340 proposes to create the "Local Government Elected Officials Act" to provide a process for "recalling" (i.e., removing from office) elected local government officials who were elected during a consolidated election. Similar bills have been introduced in past legislative sessions but have never made it out of committee. 

Under this bill, a resident within the jurisdiction that the elected official represents would be allowed to file petitions with the local election official signed by the lesser of (1) 25% of voters in that jurisdiction who voted for Governor or (2) 10,000 signatures to request that the recall question be submitted to the voters at the next consolidated election. The ballot question language is required to be in the form as stated in the proposed bill, as follows:

Should (elected official) be recalled from (his or her) positions as (title of position)? (YES/NO)

If (elected official is recalled, who do you support to replace (him or her)?

(Elected official).

(Candidate).

(Candidate).

Anyone desiring to be considered as a replacement for a recalled official must follow the process set by the proposed bill, including filing petitions within the time-frame provided.

The bill includes home rule preemption language.

The bill does not provide any specific information as to what governmental units this would apply to - i.e., municipalities, park districts, library districts, school districts, townships, counties, all of the above? 

As noted above, similar bills have not made it very far, so we don't know whether this one will go anywhere but since it could potentially affect all local governments with elected members, we will keep you advised if it does move forward. 

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