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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

Monday, August 30, 2021

Village and Police Officer Immune From Liability in Drunk Driving Incident

In 2017, Marcos Rodriguez was involved in a minor traffic accident while driving with a blood alcohol concentration of at least 0.24. A police officer responded to the accident and allowed Rodriguez to drive away. According to Rodriguez's lawsuit against the village and police officer, the officer did not investigate whether Rodriguez was under the influence of alcohol. Rodriguez also did not inform the officer he had been drinking. A few minutes later, Rodriguez sustained injuries in a second accident after he fell asleep at the wheel, left the roadway and struck a utility pole, and sued the village and the police officer.

In his lawsuit, Rodriguez claimed that the police officer’s failure to investigate Rodriguez and prevent him from driving away caused the second accident and defendants should be held liable for his injuries. The trial court ruled against Rodriguez, finding that because the defendants did not owe him a duty, they could not be liable. The court also ruled that even if the defendants owed Rodriguez a duty, section 4-102 of the Tort Immunity Act (which provides immunity for failure to provide adequate police protection or service) and section of that same Actt 4-107 (which provides immunity for failure to make an arrest) also provided the defendants with immunity.

On appeal, the Appellate Court in Rodriguez v. Village of Forest Park upheld the trial court’s ruling in favor of the village and police officer. The Appellate Court rejected Rodriguez's argument that the officer’s failure to investigate and prevent him from driving after the first accident fell within the willful and wanton conduct exception of section 2-202 of the Act. Specifically, since the officer’s alleged omissions more clearly relate to his failure to arrest and his failure to provide adequate police services, the officer had absolute immunity from liability under sections 4-102 and 4-107 of the Act.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 17, 2021

PAC Determines Names of Residents Who Received Parking "Exceptions" Are Releasable

The City of Chicago’s Office of the City Clerk received a FOIA request seeking letters of exception for residential parking in the City’s 45th Ward. In response, the City Clerk’s Office released the responsive letters but redacted certain information based on FOIA’s private and personal information exemptions, including the names of persons that had been issued "exceptions" to the City’s residential parking requirements. The requestor then submitted a request for review with the Public Access Counselor (PAC) challenging the partial denial.

In binding PAC Opinion 21-007, the PAC concluded that the City Clerk’s Office violated FOIA when it improperly redacted the names of persons contained in the parking letters of exception.

First, the PAC noted that names are generally not exempt under FOIA section 7(1)(b) (the private information exception) because names are basic (rather than unique) identifiers and the City Clerk’s Office failed to demonstrate that disclosing the names would reveal information that falls within FOIA’s definition of “private” information.

Second, as to the City Clerk's Office reliance on 7(1)(c), after balancing the requestor’s and the public’s interest in learning about allegations of improper parking exceptions in the City, the PAC concluded that the City Clerk’s Office failed to demonstrate that disclosing the names of people who had been issued parking exceptions would constitute a clearly unwarranted invasion of personal privacy, or that the privacy interests in the names was substantial enough to outweigh the public’s interest in disclosure. As a result, the PAC concluded that the names of residents who had been granted parking exceptions were not exempt under FOIA section 7(1)(c).

There may be situations where the release of someone's name could constitute an unwarranted invasion of personal privacy to trigger the FOIA exception contained in 7(1)(c), depending on the context of the record in which the person's name is attached. This case was not one of those, at least not according to the PAC.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Monday, August 16, 2021

PAC Issues 6th Binding Opinion Finding OMA Violation for Failure to Record Closed Sessionn

Thanks again to one of our readers who shared another binding PAC opinion - let's hope the PAC can get its website up and running again soon as it's been a long time since we've been able to access the binding opinions (and for members of public bodies that need to access the online OMA training). 

In PAC Op. 21-006, the PAC found a public body in violation of the Open Meetings Act for failing to record its closed session. According to the PAC's opinion, the district employee who usually took the minutes and kept the recordings for district meetings was not asked to attend this particular closed session, which included committee members and the district's legal counsel. Following the meeting, the employee filed a request for review with the PAC alleging that she believed the committee failed to record its closed session and claiming that the committee discussed topics outside the scope of closed session. In the district's response to the request for review, the district stated it had forgotten to turn on the recorder and would put practices in place to ensure compliance at future meetings. The PAC found the district in violation for failing to record the closed session but did not address the allegation that the discussions in closed session were outside the scope of permitted exceptions, finding that allegation speculative.

Wednesday, August 11, 2021

Court Finds No Bad Faith and Rejects Request for FOIA Civil Penalties

In 2014, Marvin Williams submitted a FOIA request to the Winnebago County State’s Attorney’s Office seeking certain grand jury records, including “no-bills” and “true bills” of indictment and the grand jury deliberations and votes regarding a criminal case involving Mr. Williams. The State’s Attorney’s Office denied the request, claiming the records were exempt under Section 7(1)(a) of FOIA, because the records were expressly prohibited from disclosure by a state law that governs the secrecy of grand jury proceedings and limits the disclosure of grand jury documents. Williams then sued the States Attorney’s Office, claiming they violated FOIA. The trial court ruled in favor of the States Attorney’s Office, and Williams appealed.

The appellate court ageed with the trial court except on one issue. The appellate court found that the States Attorney’s Office should disclose responsive “true bills” of indictment but with witnesses names redacted. 

After the State’s Attorney’s Office released the true bills to Williams, Williams asked the trial court to impose civil penalties against the State’s Attorney’s Office under FOIA section 11(j), which states: 

If the court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty…” 5 ILCS 140/11(j). 

The court denied Williams request for statutory penalties, ruling that the States Attorney’s Office did not act in bad faith. In Williams v. Bruscato, the appellate court agreed with the trial court and rejected Williams' request for civil penalties. The appellate court found that Williams failed to prove that the States Attorney’s Office knew or had a reasonable belief that “true bills” of indictment were subject to disclosure, and that the State’s Attorney’s Office showed good faith in immediately releasing the true bills once the trial court ruled that they shoudl be released. Because Williams was unable to prove that the States Attorney’s Office willfully or intentionally failed to comply with FOIA, and did so ““deliberately, by design, and with a dishonest purpose,” the court rejected the petition for civil penalties against the States Attorney’s Office.

Importantly, the appellate court also rejected plaintiff’s interpretation of Section 11(j), noting that a "willful and intentional" failure to comply with the FOIA is not sanctionable unless that failure was itself in bad faith. So, according to the appellate court, a court should only impose a civil penalty where a public body willfully, intentionally, and in bad faith failed to comply with FOIA.

Post Authored by Eugene Bolotnikov

Tuesday, August 10, 2021

FAQ for Conducting Remote Meetings

As the COVID-19 pandemic continues and case counts increase, more public bodies are discussing whether they should go back to remote meetings. We thought it might be helpful to provide a brief "FAQ" to provide information on some of the most commonly asked questions about remote meetings. Note that because the COVID-19 pandemic (and the Governor's actions) remain very fluid, you should always consult with your legal counsel if you have questions about a meeting of your particular board, council, commission or committee.

Q1: Even though the Governor's executive order relaxing the OMA in-person requirements expired last month, can our public body still meet remotely?

Yes, a public body can meet without a physical quorum present so long as (1) there is a state-issued disaster declaration related to public health concerns in place over all or part of the jurisdiction of the public body; (2) the head of the public body determines that an in-person meeting is not practical or prudent because of the disaster; and (3) the public body follows the rules and procedures contained in section 7(e) of the OMA. See 5 ILCS 120/7(e)

Q2: Is there still a state-wide disaster declaration in effect?

Yes, the Governor issued another COVID-19 disaster declaration on July 23, 2021. The July 23, 2021 disaster declaration is in effect until August 22, 2021. Given the increasing case counts, it is likely the Governor will issue another disaster declaration later this month.

Q3: What type of determination does the head of the public body have to make?

Section 7(e) of the OMA doesn't provide much in the way of practical information as to what constitutes "practical or prudent" to satisfy the statutory requirements for holding a remote meeting. While the Governor did issue a new disaster declaration, he did not extend his state-wide finding that in-person meetings are not feasible. As a result, public bodies that decide to meet remotely under section 7(e) may want to support their decision with specific, and if appropriate, localized findings about the impact of the pandemic. 

For example, the head of the public body might point to the current trend regarding increasing test positivity rates in making his or her determination that an in-person meeting is not practical or prudent. The head of a public body might also look at local or regional vaccination rates, increasing case counts, the impact of new variants, or increased hospitalizations to support the required determination. 

Q4: Does this determination have to be made for every meeting?

Although not expressly addressed in the OMA section that authorizes remote meetings, it seems reasonable to interpret the statute to require the head of the public body to make an individual determination for each meeting, particularly given the fluid nature of this pandemic. That finding could be made by including it on each meeting notice or agenda and/or the head of the public body could verbally recite his or her finding at the beginning of the meeting. 

Q5: If we do meet remotely, what rules do we have to follow?

Most public bodies have met remotely at some point during the COVID-19 pandemic, and the rules that were established by the General Assembly last June when it enacted Section 7(e) of the OMA are still in place. A summary of these rules is below, but you may want to review the statute itself to make sure you are complying with all of the procedures for this type of remote meeting.

1. A Governor or IDPH-issued disaster declaration related to public health concerns must be in place that covers all or part of the public body.

2. The head of the public body must make a determination that an in-person meeting is not practical or prudent because of a disaster.

3. All members of the public body must be verified and must be able to hear one another and all discussions and testimony.

4. Members of the public must be able to contemporaneously hear all discussion, testimony, and voting at open meetings at the meeting place or, if that is not feasible, then the public must be provided alternative ways to attend the meeting (i.e., web-based link, telephone number, etc.).

5. The head of the public body, attorney, or chief administrative official must be physically present unless it is not feasible due to the disaster.

6. All votes must be by roll call.

7. 48 hours' notice must be given in accordance with the OMA unless a bona fide emergency exists.

8. Members attending remotely are considered part of the quorum.

9. Remote meetings must be recorded by audio or video means and the recordings must be made available to the public.

Q6: If a public body decides to hold an in-person meeting, can some members attend electronically?

Yes, so long as the public body follows the "traditional" method of remote attendance in Section 7 of the OMA. In order to utilize that method for remote attendance, the public body must have enacted a policy that authorizes this type of attendance. There must be a physical quorum of the public body present at the meeting place. The member must be approved for electronic attendance per the requirements of the written policy. Finally, there are only 3 reasons that authorize remote attendance under this "traditional" procedure: (1) personal illness or disability; (2) a family or other emergency; or (3) employment purposes or business of the public body. Vacation is not an authorized reason under this alternative procedure.

Stay tuned for a follow-up FAQ on public attendance at remote meetings.

Monday, August 9, 2021

Court Addresses Zoning Challenge and Finds City Immune From Monetary Damages

We don't see a lot of zoning cases in the appellate courts, so a recent case involving a special use caught our interest. Pumilia v. City of Rockford.

In 2018, Pumilia purchased a property in Rockford that had previously been used for a used car dealership, intending to operate a similar business on the lot. He bought the property, obtained insurance, improved the parking lot, and ordered signs for the new business. When the sign company filed an application for a sign permit with the City, it triggered a City zoning review. Shortly thereafter, the City informed Pumilia that the previously issued special use permit to allow a used car dealership had lapsed under the City's ordinance because the used car business had not been operated for 12 months or more. City staff informed him that he would have to apply for a new special use permit, which he subsequently did. However, both the ZBA and City Council denied the special use request, and he sued.

In his lawsuit against the City, Pumilia claimed that the special use permit to operate the used car lot was re-established based on City staff's actions and that he was entitled to monetary damages for the City's actions. The trial court ruled in his favor, finding that the special use was not abandoned and awarding Pumilia his court costs as well as damages for his $2,500 business bond and $5,868 that he incurred for vehicle storage. 

The City appealed, and the appellate court upheld the ruling on the special use but vacated the award of damages.

First, the appellate court determined that although the property was not used as a used car lot for more than 12 months, Pumilia had "reestablished" the special use when he applied for a new special use and when City staff issued positive findings of fact on the special use, which the appellate court determined was expressly provided for in the zoning code. Specifically, the appellate court cited the provision in the zoning code that allowed a property owner to reestablish a special use if staff provides a positive review on six findings of fact.

On the issue of damages, the appellate court rejected the trial court's award, finding that the City was clearly entitled to immunity from damages under the Tort Immunity Act. The appellate court rejected Pumilia's argument that he was entitled to damages because City staff acted "willfully or maliciously," finding that because City staff's determination in this case was discretionary, it did not affect the immunity afforded to the City under the Tort Immunity Act.

Friday, August 6, 2021

Quorum Forum Podcast Ep 55: Sunshine and Supreme Court Cases

Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 55: Sunshine and Supreme Court Cases. Information about this episode is below:

It’s summer, so that means it is time to review cases about sunshine laws, along with the significant U.S. Supreme Court cases affecting local governments. Ancel Glink’s Eugene Bolotnikov and Dan James review important cases you should know, along with what the Governor’s latest disaster declaration means for local government meetings under the Open Meetings Act. 

Send your questions to podcast@ancelglink.com!

Thursday, August 5, 2021

Seventh Circuit Denies Injunctive Relief in Challenge to University's Vaccination Mandate

Recently, the Seventh Circuit Court of Appeals denied injunctive relief in a challenge to Indiana University's mandate that all students be vaccinated against COVID-19 prior to the start of the fall semester unless the student has a medical or religious exemption. Klaasen v. Indiana University

Following adoption of the vaccination mandate, eight students filed suit against the university, claiming the policy violated their due process rights under the 14th Amendment. The district court denied the students' request for injunctive relief, and the Seventh Circuit agreed, finding no basis for an injunction. The Seventh Circuit found support for IU's vaccination mandate in a U.S. Supreme Court case finding constitutional a state requirement that all residents be vaccinated against small pox. The Seventh Circuit also found no constitutional violation where students who claimed a medical or religious exemption would have to wear masks and be regularly tested. Finally, the Court noted that the students were not required to attend IU and if they objected to the vaccination requirement, they could simply attend another school. In short, the Seventh Circuit found no constitutional violation in IU's vaccination mandate to support injunctive relief against the university.

Wednesday, August 4, 2021

New State Law Permits Limited Medical Cannabis Use During Park Programs

Public Act 102–0067, signed into law on July 9, 2021, adds a new Section 31 to the Compassionate Use of Medical Cannabis Program Act regarding the administration of medical cannabis to individuals with disabilities who participate in camps, educational programs, or similar programs sponsored by Illinois park districts. The new law does not relax any of the current restrictions and rules regarding the use of recreational cannabis.

The Act restricts the authority of park districts and covered entities to regulate the use and possession of medical cannabis by people with disabilities during the course of park district programming, as follows:

  • A park district must allow a program participant’s parent, guardian, or caregiver to administer a medical cannabis infused product to a participant with a disability on the park premises if both the participant and caregiver are authorized cardholders.
  • A park district may not discipline or restrict a program participant because he or she requires a medical cannabis infused product or because the product has been administered to the participant in accordance with the new law.

The Act also contains some protections for park districts which are intended to limit other participant’s exposure and access to cannabis products. Caregivers and participants covered by the law must comply with the following conditions:

  • The caregiver must remove the medical cannabis infused product from the park district after the product has been administered to the program participant.
  • A caregiver cannot administer a product that might create a disruption to the program or activity for people with disabilities or expose other participants to the product
  • The Act does not require a member of the park district's staff to administer any medical cannabis infused product to a program participant.

One important caveat in the new law that park districts should be aware of - a park district may not authorize the administration of these products to program participants if the park district would lose federal funding as a result. So, park districts may want to check to see if there were any relevant conditions placed on federal grant funding they may have received. 

Park districts should review their existing policies to ensure they do not enforce any rules which directly conflict with the new law. Staff training is also recommended so that eligible participants can exercise their rights safely and privately without causing unnecessary disruptions to park programs.

Post Authored by Erin Monforti and Adam Simon, Ancel Glink

Monday, August 2, 2021

Federal Court Dismisses Due Process Claim Related to Fair Notice of Parking Restrictions

Last week, a federal court dismissed a case against a municipality filed by a driver that her due process rights under the Fourteenth Amendment were violated when she received a parking ticket for leaving her vehicle on a secondary snow route. The driver claims she was not provided “fair and proper notice” of the parking restrictions because there were no signs posted in the Village indicating where parking was prohibited.

In Lewis v. Village of Alsip, the court held that the driver's claim that she was entitled to signage announcing the parking ordinance had no merit. First, the Court found that the parking ordinance did not regulate passive behavior, and so the act of parking was fairly punishable by the ticketing procedure established in the Village. Second, the Court reasoned that an average member of the community would likely have some awareness of restrictive parking rules given the prevalence of similar regulations in the Chicagoland area. Based on both factors, the Court held that the driver's interpretation of the due process clause was too expansive and was not consistent with previous cases.

While the driver can file an amended complaint, the Court made clear that her former theory that she was deprived of procedural due process when her car was ticketed and she was fined for prohibited parking without any signage indicating the prohibited snow route would not succeed.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink