Court Rejects Attorneys Fees Where Public Body Disclosed Records in Litigation

Court Rejects Attorneys Fees Where Public Body Disclosed Records in Litigation

  Thursday, December 29, 2022    Julie Tappendorf

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In August 2020, an inmate submitted a FOIA request to a municipality seeking numerous records. In response, the City disclosed certain records, and withheld others asserting several FOIA exemptions, including FOIA exemption 7(1)(e-10), which exempts the following:

Law enforcement records of other persons requested by a person committed to the Department of Corrections, Department of Human   Services Division of Mental Health, or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim. 

After the inmate sued the City alleging that it improperly denied the FOIA request, the City voluntarily provided the inmate with some of the requested records during the pendency of the lawsuit, but continued withholding certain records allegedly exempt pursuant to FOIA exemption 7(1)(e-10). 

Although the trial court agreed that the City properly withheld some of the requested records using exemption 7(1)(e-10), the court awarded attorney fees to the inmate, finding that the inmate “prevailed” within the meaning of FOIA section 11(i) because the City voluntarily disclosed certain records to the inmate during the lawsuit. 

On appeal, the Fourth District Appellate Court in Donley v. City of Springfield reversed the trial court, holding that the inmate was not entitled to attorney fees in this case. Although the Appellate Court had previously acknowledged that a FOIA litigant can “prevail” without a court order if a public body voluntarily discloses documents mid-litigation, the Court did not find that the inmate prevailed in this case because the documents disclosed to the inmate mid-litigation were properly classified as exempt and withheld by the City at the time the City received the FOIA request. Only after the inmate filed their lawsuit was the City on notice that the cited FOIA exemption did not apply because the withheld records only then became relevant to the requestor’s current or potential case or claim against the City. 

The Appellate Court concluded that “prevailing” under FOIA requires more than just (1) the filing of a lawsuit against the public body and (2) the public body disclosing the records. Instead, prevail also requires that the lawsuit (1) caused the disclosure of the records and (2) was reasonably necessary to obtain the requested records. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Upholds Pension Board Award of Line-of-Duty Disability Pension

Court Upholds Pension Board Award of Line-of-Duty Disability Pension

  Wednesday, December 28, 2022    Julie Tappendorf

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In a recent opinion, an Illinois Appellate Court upheld the decision of a local pension board awarding a firefighter a line-of-duty disability pension under Section 4-110 of the Illinois Pension Code.

In 2015, a fire captain was assigned to attend a set of training exercises that included intensive physical components (including fighting live fires, climbing stairs, and other exercises while in full firefighting equipment). The captain had a history of heart problems, including an electrical defect and cardiomyopathy. Over the course of the few days of training exercises, the captain became physically weak and started experiencing flu-like symptoms including a fever, an irregular pulse, and difficulty breathing. He was diagnosed with pneumonia, and his treating cardiologist found that his cardiomyopathy had worsened, negatively impacting the rate at which blood was being pumped from his heart to the rest of his body. The captain ended his active firefighter duty the following month and went through a series of medical treatments to address his heart condition.

In mid-2017, the captain submitted an application to the local pension board (Pension Board) seeking either a line-of-duty pension or an occupational disease disability pension. The Pension Board awarded him “interim” nonduty disability benefits, with the determination of his line-of-duty disability pension application pending a full hearing. At the pension hearing, the Pension Board heard from several medical witnesses, none of whom could conclusively testify that the training exercises the captain attended in 2015 had caused his worsened heart condition. However, none of the doctors could rule out the training as contributing to the captain’s health issues either. There was no real dispute, however, as to the finding that the captain was no longer able to work as a firefighter. After considering the evidence presented at the hearing, the Pension Board awarded the captain a line-of-duty disability pension, and the trial court upheld the Pension Board's decision after it was challenged by the municipality.

On appeal, the municipality argued that (1) the award of interim nonduty disability benefits before the captain’s full hearing terminated the Pension Board’s authority to award the captain a line-of-duty pension; (2) the Pension Board’s decision was contrary to the medical evidence provided at the hearing; and (3) the Pension Board did not apply the proper burden of proof in making its determination. 

The Appellate Court disagreed with the municipality and upheld the Pension Board’s award of the disability pension to the captain. First, the Appellate Court found that the interim award of pension benefits was not a “final action” and was awarded in anticipation of a full hearing, which is not an uncommon practice in Illinois pension disputes and did not strip the Board of its authority to award the captain’s full pension benefits. Second, the Court rejected the municipality’s argument that the Pension Board’s decision was contrary to the evidence presented at the hearing. Finally, the Court determined it would not reverse the pension award on the grounds that the Board allegedly misapplied the “preponderance of the evidence” standard of proof.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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PAC Issues 13th and 14th Binding Opinions on FOIA Challenges

PAC Issues 13th and 14th Binding Opinions on FOIA Challenges

  Tuesday, December 27, 2022    Julie Tappendorf

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The PAC issued its 13th and 14th binding opinions of 2022, both dealing with FOIA challenges and summarized below:

PAC Op. 22-013

In October 2021, a city department (Department) received a FOIA request asking for certain communications. The Department provided some of the requested records, but withheld a letter from a private attorney, arguing that the communication constituted settlement negotiations that were confidential under both federal and state rules of evidence. The requester appealed and the PAC issued an advisory determination that the Department improperly withheld the letter. The requestor submitted a second FOIA request to the Department in August 2022 seeking “copies of all records the Attorney General's Office found to be inappropriate in 2022 PAC 72362." After the Department again denied the request, requestor appealed the second denial to the PAC.

In PAC Op. 22-013 (a binding opinion), the PAC determined that the Department failed to demonstrate that the letter was exempt from disclosure under the cited FOIA exemptions 7(1)(a) and 7(1)(f) and ordered release of the letter. 

First, the PAC determined that the state and federal evidentiary rules cited by the Department (which concern the admissibility and consideration of settlement negotiations in the context of judicial proceedings) do not prohibit the disclosure of these records under FOIA. The PAC took the position that evidentiary rules have no relevance to whether a record must be disclosed to the public under FOIA.

Second, the PAC rejected the Department's reliance on the "deliberative process" exemption in 7(1)(f), finding that the Department failed to demonstrate that the letter at issue was either an inter-agency or intra-agency communication that revealed the Department's pre-decisional deliberative process concerning a potential settlement. 

PAC Op. 22-014

In PAC Op. 22-014, the PAC found a public body in violation of FOIA for failing to timely respond to a FOIA request. Nothing new for public bodies to learn from this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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Minor Child Not Eligible for Survivor Spouse Benefits Under Pension Code

Minor Child Not Eligible for Survivor Spouse Benefits Under Pension Code

  Friday, December 23, 2022    Julie Tappendorf

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In a recent challenge to a Pension Board ruling, the Illinois Appellate Court ruled in favor of a municipality, finding that a minor child was not eligible to apply for the 100% act of duty benefit under section 3-112(e) of the Illinois Pension Code because he is not a surviving spouse. Masterton v. Village of Glenview.

After a police officer died while attending roll call, the officer's former spouse filed an application with the local pension board (Pension Board) for survivor pension benefits for the officer's son. She sought an award of duty death survivor benefits in the amount of 100% of the officer's former salary. The Pension Board initially dismissed the application for 100% benefits, finding that the child was not eligible to apply for a 100% act of duty benefit because he was not a surviving spouse under the applicable Pension Code provision, but awarded a 50% minor child's survivor benefit. The former spouse appealed to the circuit court, which reversed the Pension Board's decision and remanded it back to the Pension Board to conduct further proceedings on the application for 100% benefits. On remand, the Pension Board ruled that the officer's death was not the result of the performance of an act of duty and concluded that the child was only entitled to a 50% pension award. The circuit court upheld the Pension Board's decision and the decision was appealed to the Appellate Court.

The Appellate Court held that the officer's minor son did not qualify for act of duty survivor benefits under section 3-112(e) of the Pension Code because he is not a surviving spouse. Since the Appellate Court determined that the minor child was not eligible to apply for survivor benefits under section 3-112(e), the Court did not address the former spouse's argument that the officer's participation in roll call constituted an act of duty under the Pension Code.

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Upcoming Webcast on Government Incentives for Mixed-Use Developments

Upcoming Webcast on Government Incentives for Mixed-Use Developments

  Thursday, December 22, 2022    Julie Tappendorf

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The real estate law section of the Illinois State Bar Association (ISBA) is presenting a webcast on January 13, 2023, to discuss the topic "State and Local Government Incentives for Rebuilding Mixed-Use Residential/Commercial Projects." The speakers include Ancel Glink partner and Municipal Minute creator Julie Tappendorf. 

You can learn more about the program and register to attend the webcast here.

State and Local Government Incentives for Rebuilding Mixed-Use Residential/Commercial Projects

Friday, January 13, 2023, 11:00 am to 12:30 pm (Central)

1.5 hours of CLE credit

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Court Upholds Local Pension Board Decision Denying Surviving Spouse Benefits

Court Upholds Local Pension Board Decision Denying Surviving Spouse Benefits

  Wednesday, December 21, 2022    Julie Tappendorf

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Recently, an Illinois Apellate Court upheld the decision of a local pension board to deny surviving spouse benefits to the wife of a police officer whose death was found to be caused by his preexisting heart condition rather than the result of engaging in “an act of duty”. Vargas v. The Town of Cicero Police Pension Fund, et al.

A police officer collapsed suddenly while walking into his station for roll call, and was later pronounced dead. The officer had a history of high blood pressure, persistent chest pain, and elevated cholesterol, and his cause of death was determined by the medical examiner to be “coronary arteriosclerosis,” or the buildup of plaque in his arteries surround his heart. The officer’s wife filed a claim for federal benefits, which was granted, as well as a surviving spouse pension under the Illinois Pension Code. Citing the activities her husband had engaged in at work the day prior to his death (including a short foot chase of a suspect), the officer's wife argued her husband's death was aggravated by his on-duty activities and that she was entitled to a state pension.

After a hearing before the municipality’s police pension board (Board), the officer's wife was denied surviving spouse pension benefits because her husband’s death was found not to have resulted from “the performance of an act of duty” under the Pension Code. This finding was based on a collection of expert medical opinions which generally concluded that the officer’s death was a result of “uncontrolled cardiac risk factors.” While his wife presented contrary medical opinions, the Board determined she failed to prove that some act of duty actually aggravated or caused his death. She then appealed the pension board’s decision, but the lower court upheld the denial of pension benefits.

The Appellate Court reviewed the Board’s decision and found that its factual findings were not against “the manifest weight of the evidence,” meaning that the officer's wife could not show that the Board had clearly made an error in denying her a pension. Because this standard is highly deferential, and because the Board in this case had carefully weighed the medical evidence and other facts surrounding the officer’s death, the Appellate Court upheld the Board's denial of surviving spouse pension benefits.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Wisconsin Court Finds University Social Media to be Nonpublic Forum

Wisconsin Court Finds University Social Media to be Nonpublic Forum

  Tuesday, December 20, 2022    Julie Tappendorf

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We wrote last week about an Illinois federal district court case involving government use of social media. In that case, the district court allowed a First Amendment challenge against a city alderman to proceed, finding that the interactive space on the alderman's social media page was a public forum and his deleting and blocking activities may have violated users free speech rights. In that case, the court acknowledged that the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois as well as certain other nearby states) had not yet weighed in on whether government social media was a public forum but found cases decided by other courts of appeal that hadd made that determination to be persuasive.

In today's post, we write about a Wisconsin federal district court case also involving government social media activities. Krasno v. Mnookin. This case involves a First Amendment challenge to social media actions by the University of Wisconsin-Madison. The University operates Facebook and Instagram pages where it communicates with students, faculty, and the general public. The University  moderates its social media accounts in several ways, including hiding or deleting comments that the University deems "off-topic" and employing a "keyword filter" that hides comments that include words or phrases that the University includes in the filter. The University also turns off comments on certain posts to prevent users from commenting.

A former student who had worked in the primate testing center of the University frequently commented on University posts to express her views opposing animal testing. The University hid or deleted some of her posts and left others. The University had also imposed an account restriction on the former student's Instagram account meaning that her posts on the University's page would be automatically hidden unless the University "unhid" them. Many of her posts were hidden through the keyword filter because they included filtered words such as "lab," "animal testing," "kill animals," and dozens of other words and phrases that were included in the filter. 

In 2021, the former student sued the Univerrsity, claiming that the University's restrictions on her Instagram Account and deleting her posts from Facebook constituted unlawful censorship in violation of her First Amendment rights. She also claimed that the University's use of the "keyword filter" was "viewpoint discrimination" in violation of her free speech rights. 

While the Wisconsin federal court acknowledged that a number of courts had determined that the interactive area of a government social media site was a designated public forum, the court distinguished these cases and held that the University operated a "nonpublic forum" on its social media pages because it had, by policy or practice, restricted comments on its pages to "on topic" discussions only. The court determined that the University's ban on "off topic" comments was a reasonable and viewpoint neutral rule that furthered the University's interest in preserving the interactive comment threads to University-related topics. The court also found that users have alternative ways to express their views. In sum, the court rejected the former student's First Amendment challenge on all grounds.

While this is an interesting case, and certainly favorable to governments who might benefit from adopting a similar "off topic" rule for their own social media sites, it is important to note that this case appears to be an outlier - the Wisconsin court even acknowledges that there are a number of cases that have held that government social media is a designated public forum. This ruling has also been appealed so it will be interesting to see what the Seventh Circuit Court of Appeals does since that court of appeals has yet to weigh in on government social media in the context of a First Amendment challenge. We will keep you posted as this appeal moves forward but governments might want to take a cautious approach in relying on this particular ruling, at least until it goes through the court of appeals. 

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911 Calls Not Automatically Exempt But Public Body Not Required to Create Transcript of 911 Call for FOIA

911 Calls Not Automatically Exempt But Public Body Not Required to Create Transcript of 911 Call for FOIA

  Monday, December 19, 2022    Julie Tappendorf

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In August 2019, the Edgar County Watchdogs (ECW) filed two separate FOIA requests with a County Sheriff’s Office seeking 911 call records and other records regarding the Office's  response to several incidents at a local park. The Sheriff's Office denied the 911 records, based on FOIA exemption 7(1)(d)(iv) that the recordings contained confidential statements made by individuals filing complaints with or providing information to law enforcement. ECW then sued the Sherriff’s Office alleging it had improperly and willfully and intentionally denied ECW's FOIA requests and failed to conduct an adequate search.

After the circuit court conducted an "in camera" inspection of the recordings, the court concluded that the "tonal qualities" of the victim statements in the 911 recordings were exempt because disclosure would unavoidably reveal victim identities. However, the court ordered the Sheriff’s Office to provide ECW with unredacted versions of the victim statements contained in the written police reports corresponding to the 911 calls and to provide ECW with either a "masked" version of the calls or a transcript of the calls. 

On appeal, the Sherriff’s Office argued that the circuit court erred when it found that the 911 recordings were not exempt, claiming that (1) 911 recordings (in any form) should be exempt from disclosure because the content of the call reveals the caller’s identity or alternatively (2) that masking the audio or creating a transcript of the recording constitutes the creation of a new record, which the Sherriff’s Office is not required to do under FOIA. 

In Edgar County Watchdogs v. Will County Sherriff’s Office, the Appellate Court rejected the Sherriff’s Office argument that all 911 recordings should be automatically exempt. Instead, the Appellate Court held that only those portions of calls that would unavoidably disclose the identity of the person who filed the complaint or provided the information to law enforcement would be exempt under FOIA exemption 7(1)(d)(iv).

The Appellate Court also rejected the Sherriff’s Office argument that providing ECW with an altered recording that would disguise the caller’s voice required them to create a new record. The Court determined that using computer software to mask caller voices in the responsive 911 recordings is similar to deleting exempt information from a record or scrambling a record, neither of which constitute the creation of a new record. However, the Appellate Court agreed with the Sheriff's Office that it should not be required to prepare and produce a transcript of the calls, since that would require the Sheriff's Office to create a new record that was not already maintained by that office.

The opinion contains two separate opinions concurring in part and dissenting in part from the majority opinion that are interesting to read. One of these opinions would require the Sheriff's Office to provide a transcript and the other opinion would find that the calls were exempt from FOIA.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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Public Body Did Not Violate FOIA Where Request Went to Wrong Public Body

Public Body Did Not Violate FOIA Where Request Went to Wrong Public Body

  Friday, December 16, 2022    Julie Tappendorf

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We have seen a lot of FOIA cases coming out of the Illinois Appellate Courts that we will be reporting on over the next few weeks. In today's post, an Illinois Appellate Court upheld the dismissal of a lawsuit filed by an inmate challenging the denial of his FOIA request, finding that the inmate filed his request with the wrong public body. Foote v. Winnebago County Sheriff.

The inmate had filed a FOIA request with the Winnebago County Sheriff's Office seeking copies of various contracts between Winnebago County and prison venders, as well as records pertaining to the provision of medical services to inmates. Foote filed suit after he failed to receive a response from the Sheriff's Office. The circuit court dismissed his lawsuit, finding that he had filed his request with the wrong public body and, therefore, the Sheriff's Office did not violate FOIA.

On appeal, the Appellate Court first noted that since FOIA does not require a public body to compile records it does not ordinarily keep, the failure of that public body to turn over documents that are not in existence or not under its control does not constitute a violation of FOIA. The Appellate Court upheld the circuit court's ruling that it could take judicial notice of which records a public body would ordinarily keep or have in its possession. The Court also noted that the inmate knew or should have know that the records it requested would be held by Winnebago County or the Illinois College of Medicine, and not the Sheriff's Office. Finally, the Appellate Court rejected the inmate's request for civil penalties, finding that he did not prevail in his FOIA lawsuit and the Sheriff's Office did not willfully or intentionally refuse to comply with FOIA.

This is an interesting case for a few reasons. 

First, the Appellate Court held in this case that a public body did not have to respond to a FOIA request where the records being requested were not records kept or possessed by the public body. Best practices (both for record-keeping purposes and in case of a challenge) would be for a public body to respond to all FOIA requests, even if the response simply states that the public body has "no responsive public records." The Appellate Court even acknowledged that best practice in its opinion, as follows:

Although it would behoove the Sheriff’s Office to nonetheless respond to such requests with a simple “we do not keep those records,” based on Foote’s amended complaint, in the light most favorable to Foote, he failed to plead a cause of action for which relief could be granted.

Second, the Court appeared to find that Winnebago County and the Winnebago County Sheriff's Office were two distinct public bodies for purposes of FOIA. 

Third, the circuit court had dismissed the individual employees of the Sheriff's Office who had been named as defendants in Foote's lawsuit, holding that FOIA does not provide a statutory basis for suing individuals in FOIA challenges (this issue was not appealed).

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District Court Allows First Amendment Social Media Challenge Against Alderman to Proceed

District Court Allows First Amendment Social Media Challenge Against Alderman to Proceed

  Thursday, December 15, 2022    Julie Tappendorf

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Earlier this year, a federal district court denied a motion to dismiss a First Amendment lawsuit challenging actions by a City Alderman to block certain comments from his Facebook page, allowing the case to proceed. Czosnyka v. Gardiner. 

Six residents of Chicago's 45th Ward brought a First Amendment lawsuit against their Alderman after they claim their comments were deleted from the alderman's Facebook page. They alleged that the Alderman's actions violated their First Amendment right to free speech. The Alderman filed a motion to dismiss, arguing that the residents did not sufficiently allege that his Facebook page was a public forum. The district court acknowledged that the Seventh Circuit Court of Appeals had not yet addressed the issue of whether a government official's social media page was a public forum, but noted that other Courts of Appeals had issues opinions stating that when a government official uses a social media account for official business, the interactive portion of that platform is a public forum for First Amendment purposes. See Davison v. Randall (4th Circuit) and Knight First Amendment Inst. v. Trump (2nd Circuit). 

Applying the analysis in these two cases, as well as the U.S. Supreme Court's decision in Packingham v. North Carolina, the district court determined that the residents had at least plausibly alleged that the Alderman had restricted their access to a public forum when he barred them from posting or deleted their comments from his Facebook page. As a result, the district court allowed the residents' lawsuit to move forward, and the case is still pending in the district court.

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City Immune From Tort Liability in Zoning Case

City Immune From Tort Liability in Zoning Case

  Wednesday, December 14, 2022    Julie Tappendorf

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In Xochi, LLC v. City of Galena, the Illinois Appellate Court found the City immune from liability under the Tort Immunity Act for claims relating to a zoning approval relating to a cannabis dispensary and upheld the dismissal of the case against the City.

Xochi owned a building in the City of Galena which it agreed to lease to Veriflife, who intended to operate a cannabis dispensary. Verilife asked the City to complete a zoning form to certify that local zoning would allow a cannabis dispensary at the location, as required by the State of Illinois as part of Verilife's state licensing application. Prior to Verilife's request of the City relating to the zoning form, the City had granted zonign relief for a competitor dispensary operator (Fotis), to operate a cannabis dispensary at a location less than 1500 feet from the Xochi building. The City stated that it did not sign the zoning form for the Verilife's facility because its facility would be within 1500 feet of the Fotis facility, which was prohibited by state and local laws. After the City refused to complete the form, Verilife terminated the lease. Xochi then filed suit against the City, claiming the City was negligent in not completing the form, thus depriving Xochi of the financial benefits of the lease with Verilife. The City filed a motion to dismiss, arguing that it was immune from liability under the Tort Immunity Act. The trial court ruled in the City's favor and Xochi appealed.

The Appellate Court did not get into the merits of Xochi's claims against the City, instead agreeing with the circuit court that Section 2-104 of the Tort Immunity Act precluded the City from liability. That Section provides as follows:

A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.

The Court found that the plain reading of this Section of the Tort Immunity Act applied because the City's refusal to sign the zoning form for Verilife was a public entity's "failure or refusal" to provide its "approval...or similar authorization." As a result, the City was immune from Xochi's tort claims and the case was properly dismissed.

 

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Illinois General Assembly Likely to Weigh in on Gun Safety in Lame-Duck Session

Illinois General Assembly Likely to Weigh in on Gun Safety in Lame-Duck Session

  Tuesday, December 13, 2022    Julie Tappendorf

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The Illinois General Assembly’s fall veto session recently ended, with state law makers adopting changes to the SAFE -T Act, among other legislative acts.

Looking ahead to the General Assembly’s lame duck session in early January, it is likely that an omnibus firearms bill will be considered by the state legislature in the New Year. HB 5855 has been proposed to amend several state statutes related to gun possession and firearm trafficking. The most publicly reported provision of the bill would amend the Illinois Criminal Code to make it unlawful to manufacture, deliver, sell, or purchase an assault weapon, assault weapon attachments, or other certain firearm accessories in Illinois. The law contains several exemptions, including the possession of these weapons by on-duty law enforcement officers or on-duty members of the armed forces, as well as the use of such firearms in hunting activities authorized by the Wildlife Code.

HB 5855 is in its infancy―we will keep readers up to date as it is considered and potentially progresses through the General Assembly.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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SAFE-T Act Amendments Signed into Law

SAFE-T Act Amendments Signed into Law

  Monday, December 12, 2022    Julie Tappendorf

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The Safety, Accountability, Fairness, and Equity - Today Act, or the SAFE-T Act, is a comprehensive criminal justice reform that took effect on July 1, 2021. In the recent veto session, the Illinois General Assembly passed HB 1095 amending the SAFE-T Act, and that bill was signed into law by Governor Pritzker as PA 102-1104. 

The new Act clarifies various provisions of the SAFE-T Act and implements certain changes that impact municipalities. The bill is over 300 pages, so we have not included a complete summary of the changes, but we have summarized a few of the changes that may be of interest to our municipal clients below:

• P.A. 102-1104 extends the deadline for implementing officer-worn body cameras to July 1, 2023 for municipalities with a population of more than 100,000 but less than 500,000, so long as the municipality has have ordered or purchased officer-worn body cameras by October 1, 2022. 
• PA 102-1104 allows the Law Enforcement Camera Grant Fund to offset the cost of data storage for the body cameras. 
• PA 102-1104 eliminated language from the SAFE-T Act that required body camera recordings used for the prosecution of conservation offenses, criminal offenses, traffic offenses, or municipal ordinance violations from having to record the offense and date the offender was charged, as well as the time, date, location, and precinct of the incident.

Other changes include an expansion of the list of crimes for which a judge can order pretrial detention, a supplement to the issues a judge can consider when determining if a defendant is a risk of willful flight from prosecution, and standardization of language regarding a defendant’s danger to the public safety.

Post Authored by Katie Nagy & Julie Tappendorf

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City Ordered to Reinstate Police Officer Terminated for Social Media Posts

City Ordered to Reinstate Police Officer Terminated for Social Media Posts

  Thursday, December 08, 2022    Julie Tappendorf

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In 2018, a city received a complaint from a local pastor about a city police officer's posting on social media of a photo of himself on social media wearing a t-shirt with the word "POLICE" and the letters "BDRT" and "Baby Daddy Removal Team" and certain posts that the pastor found derogatory to the African-American community. The posts included the officer's discussion with another individual about crimes in the south end of Peoria, including the following excerpts:

Other individual:  “This is one of the reasons we are rated 2nd in the nation as worst place for African Americans to live. Instead of investing and providing opportunity, we abandon low income areas. This will make things worse, not better. It’s really a slap in the face to those in the community.” 

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Police officer: “Those in those communities need to stop killing each other, stop stealing from everyone who are trying to help them and stop using and selling drugs. They have no family base thanks to Planned Parenthood, no guidance since they have no fathers and no path since schools since they accepted Common Core and discontinued all shop classes that teach skilled labor. We are in this place because idiots voted for it. If you kept voting for Democrats and expected something different, you are the problem." 

On January 12, 2018, the police chief placed the officer on administrative leave while an internal investigation proceeded. During the investigation, the investigators uncovered other social media posts, including the following post by the police officer related to the death of Treyvon Martin:

“Treyvon made his own choice to be a thug and got himself killed. We all have choices. We can be good guys or bad guys. Treyvon chose to be a bad guy. Zimmerman is not.” 

The police department determined that the officer violated department General Orders by engaging in conduct unbecoming an officer, failing to conduct himself in a civil and professional manner, among other violations and terminated the officer. The police union then filed a grievance with the city, arguing that the termination violated the union agreement, which eventually found its way to arbitration.

The arbitrator determined that while the city had just cause to discipline (but not terminate) the officer for disclosing investigative information outside of proper police channels, the officer's social media posts did not violate city rules or regulations. The arbitrator acknowledged that the social media comments were possibly "offensive to many" but did not reference race or explicitly show racial animus. 

The city appealed, arguing that the arbitrator exceeded his authority in ordering the city to reinstate the officer and that the reinstatement violated public policy. The circuit court confirmed the arbitrator's decision, and the city appealed.

In City of Peoria v. Peoria Police Benevolent Ass'n, the Appellate Court agreed with the circuit court that the arbitrator did not exceed his authority in its ruling. The Court also rejected the city's argument that public policy prohibits reinstatement of a racist police officer. While the Court acknowledged that the social media posts were inappropriate and insensitive, as well as offensive and demeaning, it agreed with the circuit court that because the posts were not "overtly racist", they did not violate any public policy precluding reinstatement of the officer.

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Generic (Unidentifiable) Patient Admission Information Subject to FOIA

Generic (Unidentifiable) Patient Admission Information Subject to FOIA

  Tuesday, December 06, 2022    Julie Tappendorf

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In 2018, the Chicago Sun-Times submitted a FOIA request to Cook County Health and Hospitals System (CCHHS) seeking the times/dates of admissions for gunshot wound patients seeking treatment at CCHHS, and the corresponding times/dates these admissions were reported to law enforcement. CCHHS denied the request alleging that the records were exempt pursuant to FOIA exemption 7(1)(a), because the Health Insurance Portability and Accountability Act (HIPAA) prohibits disclosing personal health information (PHI), as well as FOIA exemption 7(1)(b), which exempts private medical information. After the Sun-Times filed a lawsuit alleging that CCHHS denied the records in violation of FOIA, the trial court ruled in favor of CCHHS.

After the Sun-Times appealed, we posted on this blog about the First District Appellate Court’s reversal of the trial court and ruling in favor of the Sun-Times. In that post, we discussed how the Appellate Court held that CCHHS could disclose the years that gunshot patients were admitted and the years that law enforcement was notified about those admissions without violating HIPAA or a patient’s privacy rights, because this information could be “de-identified” to provide only the years while removing other PHI. Similarly, the Appellate Court determined that disclosing the year of a patient’s admission, by itself, does not constitute a private medical record prohibited from disclosure under FOIA section 7(1)(b), especially where the information “is entirely divorced from any personally identifying information.”

In Chicago Sun-Times v. Cook County Health and Hospital Systems, the Illinois Supreme Court affirmed the Appellate Court’s judgment. Specifically, the Court found that disclosing de-identified information regarding the year of admission and police notification is not specifically prohibited by HIPAA, so CCHHS improperly withheld the information pursuant to FOIA exemption 7(1)(a). The Supreme Court also rejected CCHHS’s argument that the entire medical record is exempt under FOIA exemption 7(1)(b), finding that the year element is not private medical information under FOIA, and that by removing uniquely identifying information from a patient’s healthcare history, the remaining non-exempt, de-identified portions of the responsive record is subject to disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Ep. 67 Just Released

Quorum Forum Podcast Ep. 67 Just Released

  Monday, December 05, 2022    Julie Tappendorf

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Ancel Glink has just released a brand new Quorum Forum podcast episode: Quorum Forum 67: An Old Tradition for the New Year. The Quorum Forum podcast team loves a good tradition. To ring in the New Year, we will be reviewing case law and legislation that our local government listeners should be aware of as we head into 2023.

Happy Holidays from Ancel Glink's podcast team!

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Court Rejects Sovereign Citizen Defense in Vehicle License Case

Court Rejects Sovereign Citizen Defense in Vehicle License Case

  Wednesday, November 30, 2022    Julie Tappendorf

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In Norman v. City of Chicago, an Illinois Appellate Court rejected a “sovereign citizen” defense brought by a vehicle owner in a City ordinance enforcement action. 

The owner of a vehicle was issued a $60 fine for violating the City of Chicago Code due to expired registration on his license plate. He filed an appeal with the City of Chicago Department of Administrative Hearings (DOAH) where he argued he did not have any contracts with the City of Chicago, was not engaged in “commerce” while traveling in his private automobile, and that he did not consent to be subject to any City of Chicago laws, so he was exempt from any tickets. The administrative law judge found that the plaintiff did not raise a permissible defense and was responsible for the fine. He appealed that decision to the circuit court, which affirmed the DOAH decision.

On appeal to the Appellate Court, Norman argued the Chicago Code applies to commercial “motor carriers," not personal use of a vehicle, and that he was not subject to Chicago’s “political boundaries.” The Appellate Court rejected these arguments, stating there was evidence of the violation and that he failed to raise any proper grounds for contesting the violation.  The Appellate Court pointed to the Chicago Code provision that “every vehicle when driven or moved upon a highway” shall be subject to registration.

The Court also rejected the plaintiff’s other defenses, noting they were clearly taken from the playbook of “sovereign citizens,” who, in the Court's opinion, clog the court system by arguing nonsensical legal theories that have no validity in American law. 

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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Court Finds in Favor of Department of Corrections in FOIA Challenge

Court Finds in Favor of Department of Corrections in FOIA Challenge

  Tuesday, November 29, 2022    Julie Tappendorf

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An inmate filed six FOIA requests with the Illinois Department of Corrections (Department) seeking Department records, policies, and copies of the Department’s prior denials of the inmate’s FOIA requests. The Department rejected some of the inmate’s FOIA requests for failing to identify responsive public records and withheld other requested records under various FOIA exemptions.

The inmate sought review of the Department’s denials with the Public Access Counselor of the Attorney General’s office (PAC). The PAC determined that no further inquiry was warranted and closed the file. The inmate then filed a lawsuit against the Department alleging it violated FOIA by improperly denying his requests and witholding responsive public records. The circuit court dismissed the inmate’s lawsuit finding his FOIA requests either failed to properly identify public records, or other portions were properly denied by the Department.

On appeal, the Appellate Court in Warren v. Dep’t of Corr. upheld the circuit court’s ruling in favor of the Department. 

First, the Appellate Court determined that the Department proved it did not possess records pertaining to surveillance footage protocols or temperature monitoring by submitting affidavits from the Department’s assistant legal counsel that such records did not exist. The Appellate Court emphasized that FOIA does not create an independent requirement for governmental bodies to maintain public records, and the nonexistence of requested records is an affirmative defense.

Second, the Appellate Court determined the Department’s denial of the inmate’s request for general information on the Department’s grievance policies and information about a prescription drug banned by the Department was permitted because the request failed to identify a specific public record. The Appellate Court also found that the Department properly withheld building inspection records and health, sanitation, and safety reports as these records were prepared for internal audit purposes and exempt from disclosure under FOIA (section 7(1)(m)). 

Finally, the Appellate Court upheld the Department’s denial of the inmate’s request for copies of his previous FOIA requests denied by the Department under FOIA’s "repeated request" exemption (section 3(g)). The Court held that that Department did not have to provide the inmate with copies of records already provided to him or previously denied as doing so would be unduly burdensome to the Department.

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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Court Will Not Issue Injunction as to Future Legislation

Court Will Not Issue Injunction as to Future Legislation

  Monday, November 28, 2022    Julie Tappendorf

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In 2016, voters approved the Safe Roads Amendment to the Illinois Constitution which restricts government expenditure of transportation-related fees and taxes to transportation-related purposes. After the amendment was passed, a group of contractors, builders, and unions sued Cook County claiming the County was violating the amendment by spending transportation-generated revenues on non-transportation expenditures. The County's defense was that it was exempt from the Amendment as a home-rule unit of government, which defense was rejected in a previous lawsuit that made its way to the Illinois Supreme Court earlier this year.

Just a few months after the Illinois Supreme Court issued its rulings, the plaintiffs went back to court asking for an injunction against the County's draft budget for FY 2023 because plaintiffs claimed that the draft budget indicated that the County intended to continue to use transportation-related revenues for non-transportation purposes. The circuit court held a hearing and ultimately denied the motion for a preliminary injunction finding that the plaintiffs claims were "speculative."

On appeal, the Illinois Appellate Court also ruled in favor of the County but on "ripeness" grounds. Illinois Road & Transportation Builders Association, et al. v. County of Cook. The Appellate Court noted that only enacted legislation can be found unconstitutional, not draft or future legislation that has not yet been enacted. The Court rejected the plaintiffs' request that the Court order the County to adopt an appropriations ordinance that complies with the constitutional amendment, as that would require the Court to render an advisory opinion on future legislation. The Court also noted that granting an injunction to order the County to do or not do something in its appropriations ordinance would "meddle into the legislature's exclusive domain of drafting and enacting laws" in violation of the separation-of-powers doctrine.

In sum, the Court held that the plaintiffs' motion for an injunction as to the County's future appropriations ordinance was premature because it was filed before any ordinance was adopted and should be denied as Courts will not weigh in on the constitutionality of legislation that has not yet been enacted.

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Bill Would Add a Definition for "Prevail" for FOIA's Attorneys' Fee Provision

Bill Would Add a Definition for "Prevail" for FOIA's Attorneys' Fee Provision

  Tuesday, November 22, 2022    Julie Tappendorf

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The General Assembly recently introduced HB 5820, which proposes to amend section 11(i) of the Freedom of Information Act (FOIA) to add a definition of the word “prevail” for purposes of awarding attorneys fees to a prevailing party who challenges a FOIA decision by a public body. If passed, a plaintiff would be deemed to have "prevailed" in a FOIA lawsuit if it either (1) obtains a court order requiring the public body to turn over the records to the plaintiff or (2) receives all requested records from the public body.  

Currently, FOIA section 11(i) does not define the word “prevail,” but merely provides that: 

If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs.

In a prior blog post, we discussed the current Illinois Appellate Court split as to when a plaintiff is considered to have “prevailed” in a FOIA lawsuit to trigger FOIA’s attorneys’ fee provision. The First, Fourth, and Fifth District Appellate Courts hold that a court order is not required to trigger FOIA’s attorneys' fee provision, meaning a plaintiff could "prevail" in their FOIA lawsuit even if the public body provides the records while litigation is pending. On the other hand, the Second District Appellate Court holds that a plaintiff is entitled to attorneys' fees only if there is a court order in the plaintiff's favor in the FOIA lawsuit. Under the Second District approach, even if requested records are provided to a plaintiff while the FOIA lawsuit is pending, a plaintiff will not have "prevailed" for purposes of FOIA's attorneys' fee provision.

If HB 5820 is enacted, a plaintiff would have “prevailed” for purposes of triggering FOIA’s attorneys’ fee provisions if the plaintiff either obtains a court order in plaintiff’s favor or receives all requested records from a public body. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Overweight Vehicle Ordinance Cannot Be Enforced Through Administrative Hearings

Overweight Vehicle Ordinance Cannot Be Enforced Through Administrative Hearings

  Monday, November 21, 2022    Julie Tappendorf

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We recently reported on a case addressing the authority of a home-rule municipality to hold administrative hearings in the case of overlapping state and municipal traffic laws. Another Illinois Appellate Court recently weighed in on a similar issue in Cammacho, Jr., et al. v. City of Joliet. There, the Appellate Court held that the City’s overweight vehicle ordinance had been improperly enforced through administrative hearing procedures. 

The City Code makes it unlawful to operate vehicles over a certain weight on any road within the City that is not designated for such vehicles. After receiving citations for violating the ordinance, several commercial truck drivers contested their tickets at administrative hearings held by the City, but each driver was found liable for violating the ordinance. The drivers then appealed their citations to the circuit court, arguing that the City had no authority to issue tickets or impose fines for this type of vehicle restriction through an administrative adjudication hearing process. The trial court disagreed and upheld the issuance of the tickets. 

On appeal, the Appellate Court ruled in favor of the drivers, holding that the City did not have the authority to hold administrative hearings to adjudicate the overweight vehicle tickets issued to the drivers, based on a provision of the Illinois Municipal Code: 

           Any municipality may provide by ordinance for a system of adjudication of municipal code violations . . . except for . . . (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code. 65 ILCS 5/1-2.1-2 (emphasis added)

The Appellate Court noted that the Illinois Vehicle Code prohibits the movement of overweight vehicles, and that the City Code constitutes a “traffic regulation governing the movement of vehicles.” Because the City Code regulates the movement of vehicles by regulating the weight limits on City streets and because the drivers were cited for a violation while their trucks were moving, rather than while parked or stopped, the City did not have the authority to enforce the tickets issued to the drivers through the City's administrative adjudication hearing process because of the above-referenced exception in the Illinois Municipal Code. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

  Friday, November 18, 2022    Julie Tappendorf

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Recently, an Illinois Appellate Court affirmed the dismissal of a lawsuit brought under the Illinois Healthcare Right of Conscience Act (Act) and denied two employees any recovery for their termination based on their refusal to receive a COVID-19 vaccine. Krewionek & Bosowski v. McKnight.

In August 2021, two employees at a dental and out-patient surgical office were discharged after they refused to comply with their employer’s rule requiring employees to receive a COVID-19 vaccination. The former employees then sued their employer, claiming a violation of Section 5 of the Act, which provides that:

It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner . . . because of such person’s conscientious refusal to receive, obtain, accept, perform . . . or participate in any way in any particular form of health care services contrary to his or her conscience. 

In November 2021, while this lawsuit was pending, the Illinois General Assembly passed a law amending the Act to carve out an exception for health mandates related to COVID-19. The Act now provides that it is not a violation of the act for individuals, entities, or public officials to impose requirements “intended to prevent contraction or transmission of COVID-19 . . . .” The amendment was passed as a declaration of existing law, and included a provision that it would “apply to all actions commenced or pending on or after” its effective date. 

The appellate court affirmed the trial court's dismissal of the employees' lawsuit, rejecting the argument made by the former employees that they did not believe the COVID-19 vaccines could prevent contraction or transmission of the coronavirus. The court noted that because the language of the exception covers measures intended to prevent the spread of COVID-19, and the former employees failed to argue that the vaccine mandate was not imposed with the intention to protect patients from contracting the virus, the dismissal of their case was proper. The court cited a U.S. Supreme Court case and the CDC website for the contention that vaccines are an effective tool to prevent and control disease, recognizing that while

some individuals may disagree . . . [these sources] support that the vaccines are intended to prevent the contraction and transmission of COVID-19.

Because the former employees’ lawsuit was “pending on or after” the date the amendment was passed, the court determined it was properly dismissed.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Bill Proposes Solution for Library District Board Vacancies

Bill Proposes Solution for Library District Board Vacancies

  Wednesday, November 16, 2022    Julie Tappendorf

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The Illinois General Assembly has reconvened for the Fall 2022 Veto Session. While this session is traditionally an opportunity for legislators to check the veto power of the Governor, it also gives the General Assembly time to consider new bills.

One of the new bills introduced in the Illinois Senate is SB 4232, which would amend the Public Library District Act of 1991 (Act) to provide an extension for filling vacant trustee positions on boards of library districts across the State but only for vacancies that occurred prior to May 27, 2022 that have not yet been filled.

Under the current version of the Act, when an appointed library district board has a vacancy, the other trustees on the board have 90 days to fill the vacant position. If the board fails to do so, the responsibility is passed to the State Librarian, who has 60 days to appoint an individual to the board. If the State Librarian does not fill the vacancy in this time, the vacant position must be filled at the next regularly scheduled election.

SB 4232 would give the State Librarian a renewed period of 60 days to fill longtime vacancies (those declared prior to May 27, 2022) in library districts across the State, rather than the vacancies being placed on the ballot for election. While the bill has very limited applicability, it could have interesting consequences for affected library districts in the spring of 2023 elections. We will update our readers as the bill makes its way through the General Assembly.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Court Upholds Pension Board's Rescission of Benefits

Court Upholds Pension Board's Rescission of Benefits

  Tuesday, November 15, 2022    Julie Tappendorf

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An Illinois Appellate Court recently upheld a Pension Board's decision to deny pension benefits to a former police officer based on the officer's felony conviction in Pruente v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago.

According to the Appellate Court's opinion, a former Chicago police officer was convicted of perjury, obstruction of justice, and official misconduct for providing false testimony in a narcotics case. The officer's application for pension benefits was initially approved by the Pension Board; however, subsequently the Pension Board rescinded its approval after investigating the felony conviction. The former officer sued, arguing that the Board's rescission of his pension benefits was an "excessive fine" in violation of the Eighth Amendment to the U.S. Constitution and that the Pension Board violated the Open Meetings Act when it failed to notify him of its initial meeting at which it revoked its approval of his pension.

The Appellate Court ruled in favor of the City, rejecting both of his arguments. First, the Appellate Court held that the officer waived the excessive fine argument because he failed to raise it before the Pension Board. Second, the Court held that any potential Open Meetings Act violation was cured when the Pension Board ratified its decision at a subsequent Board meeting where the officer was in attendance and was represented by counsel who had an opportunity to object to the Board's actions. Finally, the Court rejected the officer's argument that the Board did not have "good cause" to reconsider and rescind its prior approval of his pension benefits.

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A Group Can Be Considered One Person When Applying "Repeated Request" Provision of FOIA

A Group Can Be Considered One Person When Applying "Repeated Request" Provision of FOIA

  Wednesday, November 09, 2022    Julie Tappendorf

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An individual submitted a FOIA request to a road district seeking certain communications and documents. In response, the road district provided certain non-exempt responsive records. However, because some of the requested records had been previously provided to the requester and two other individuals in a prior FOIA request, the road district denied that portion of the FOIA request on the grounds that it was a "repeated request" from the same person for the same records that were otherwise unchanged or identical to the records previously provided by the road district.

The requestor then filed a request for review with the PAC Office of the Attorney General (PAC). The PAC issued a non-binding (advisory) letter in 2022 PAC 73336, finding that the road district had properly classified the FOIA request as an unduly burdensome repeated request from the same person pursuant to FOIA section 3(g). The PAC rejected the requester's argument that because some of the previous requests were filed by two other individuals the "repeated requests" provision did not apply, finding that the requester and the other two individuals were acting as a "group" since they shared FOIA requests, responses, and responsive records and collectively discussed who would submit which FOIA requests for particular records. The PAC noted that FOIA expressly defines a “person” to include individuals acting as a group. As a result, the PAC determined that the road district properly designated the requestor and two named individuals as one “person” and the road district did not have to provide records to the requester that had been previously provided to other members of the requestor’s group.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

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Court Upholds Ruling That School District Did Not Engage in “Reverse Discrimination”

Court Upholds Ruling That School District Did Not Engage in “Reverse Discrimination”

  Tuesday, November 08, 2022    Julie Tappendorf

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Earlier this month, the Seventh Circuit Court of Appeals ruled in favor of a school district, finding that an athletic director could not maintain a “reverse” race discrimination claim against his employer (“School District”). Groves v. South Bend Community School Corporation, 

Groves had been a teacher in the School District for 16 years before transitioning to the role of athletic director in 2007. In 2017, Groves interviewed for a newly created position that encompassed the entire School District. After the application and interview process, Groves claims that he was passed up for the role in favor of his Black colleague and filed a civil rights lawsuit alleging he had been a victim of race discrimination and that the other candidate was only hired because he is Black.

Two years later, the School District again reconfigured its athletics program, eliminating the district-wide position and creating four hybrid Dean of Students/Dean of Athletics roles at each of the high schools within the District. Because of this structural change, Grove no longer had a job in the School District, and the same Black colleague he argued was underqualified in his original lawsuit was hired for one of the Dean positions. Groves added this claim to his discrimination lawsuit, again claiming that he was passed upon in favor of his colleague based on race.

The district court granted the School District's motion for summary judgment prior to trial, finding that Groves could not, as a matter of law, present a case that would result in reasonable jurors deciding that the School District had engaged in race discrimination. While Groves had claimed he was better qualified for the job than his colleague, the district court held that the evidence collected in the case did not support his claims.

Groves appealed to the Seventh Circuit Court of Appeals, but that Court upheld the district court's ruling in favor of the School District. The Court of Appeals determined that Grove had failed to overcome the School District’s legitimate justification for hiring the other candidate over him. The School District had presented sufficient evidence that the other candidate was better qualified, had performed better in interviews, and had a respectable reputation to rebuild the athletics program within the School District. Because Groves could not show that these justifications were false, and because he could not show that the School District had discriminated against him based on his race, the Court of Appeals upheld the district court's ruling in favor of the School District.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Quorum Forum Podcast: Episode 66 - Closed Session for Litigation

Quorum Forum Podcast: Episode 66 - Closed Session for Litigation

  Monday, November 07, 2022    Julie Tappendorf

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Ancel Glink just released a new episode of its Quorum Forum podcast: Episode 66: Closed Session for Litigation

The Open Meetings Act mandates public bodies hold open meetings. Ancel Glink’s Kathy Kunkle and Mark Heinle join us to discuss the litigation exception to the Open Meetings Act and what local governments need to know to comply with the Act. 

Email your questions to podcast@ancelglink.com!

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Court Reverses Summary Judgment in Employment Dispute Against City

Court Reverses Summary Judgment in Employment Dispute Against City

  Thursday, November 03, 2022    Julie Tappendorf

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Recently, the Seventh Circuit Court of Appeals ruled that a former employee could proceed with her employment discrimination claim against a municipal employer. Runkel v. City of Springfield & James O. Langfelder, 

In 2018, a city purchasing agent announced he was leaving his position. The assistant purchasing agent (Runkel) stated she was interested in the position but was passed over for the role in favor of another employee who at the time worked under Rankel's supervision. At the same time, Rankel was offered a substantial raise to stay in her position as assistant purchasing agent. When she found out she was not being promoted, Rankel was upset and caused a commotion in the office, going so far as to claim the only reason her coworker was hired is because she was Black. The city eventually disciplined Rankel for her remarks, at which time Rankel told the city she would be filing a discrimination complaint. The city then asked Rankel to sign a “last chance” agreement rescinding the pay raise she had been offered and altering the conditions of her work to discourage future outbursts in the workplace.

Rankel eventually left her position with the city and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation for protected activity, which claims ultimately made their way to federal court. The district court ruled in favor of the city, and Rankel appealed.

On appeal, the Seventh Circuit Court of Appeals found that the city should not have been granted summary judgment on Rankel's claims where Rankel had sufficiently established her claims’ prima facie (“on its face”) requirements. In other words, Rankel's complaint that the city had engaged in unlawful race discrimination and retaliation provided the required detailed allegations and her case shold not have been disposed of as a matter of law and need to be fleshed out at trial, where a jury can analyze the city's reasons for termination.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Court of Appeals Rules in Favor of City in Facebook Parody Case

Court of Appeals Rules in Favor of City in Facebook Parody Case

  Wednesday, November 02, 2022    Julie Tappendorf

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In Novak v. City of Parma, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a municipality and certain police officers in a First Amendment challenge relating to an imposter Facebook page created by a private individual. 

Novak created a knockoff Facebook page that looked substantially identical to the City of Parma police department ("Department") page. The imposter Facebook page included posts such as offering free abortions in police vans and a “pedophile reform event” which caused concerned citizens to reach out to the Department to complain. Novak also deleted any comments on his page that stated the page was a fake. 

Ultimately, the Department posted a warning on its Facebook account about the imposter account, which Novak reposted on his imposter page. The Department also issued a press release and took part in a TV news interview, announcing an investigation of the Facebook account and warning people about the imposter page. Novak subsequently took down the page for fear of getting in trouble but was arrested and charged for violating an Ohio law that makes it illegal to use a computer to disrupt or impair police functions. After being found not guilty of the charges, Novak filed a lawsuit against the city and multiple police officers. The district court ruled in favor of the city and Novak appealed. 

On appeal, Novak claimed his arrest was in retaliation for creating the parody Facebook page, violating his First Amendment rights. The Court of Appeals rejected his argument, stating a reasonable officer would have believed every element of the Ohio disruption statute was met. The Court pointed to the fact that police were aware the call center had received multiple calls about the imposter page and the Ohio law created no standard for how much “disruption” had to be caused. The Court also noted that qualified immunity protects an officer who “reasonably picks one side or the other” in a debate where judges could “reasonably disagree." Here, the Court determined that the officers reasonably believed that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. The Court also noted that reassurance from no fewer than three other officials (city law director and the judges who issued arrest warrants) supported a finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed, which supports qualified immunity for the individual officers. 

Novak also sued the city under the theory of municipal liability for the officers’ actions. For municipal liability to attach, there must:

1. Be an official policy or legislation in place authorizing the alleged violation.
2. A designated decision-maker authorized the activity.
3. Failure to train or supervise employees.
4. There is a custom in rights violations.

Novak argued the city law director set the city’s official policy when he determined the police officers had probable cause to continue investigating him. The Court disagreed, stating that would mean every city prosecutor would “set policy” for the municipality several times a day every time they assessed probable cause, which is not reasonable. The Court stated even if the law director had made the final municipal determination that the officers had probable cause to arrest the plaintiff, the judges' independent findings to issue arrest warrants eliminated the causal connection.

In sum, the Court of Appeals upheld the ruling in favor of the city and police officers.

Note that this case has been appealed to the United States Supreme Court. 

Post Authored by Katie Nagy & Julie Tappendorf

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10th Annual Local Government Law Institute

10th Annual Local Government Law Institute

  Tuesday, November 01, 2022    Julie Tappendorf

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Attention all local government lawyers! It's registration time for the annual Local Government Law Institute presented by the Illinois Institute for Continuing Legal Education (IICLE). 

Registration information can be found here.  Details about the seminar are below:

IICLE 10th Annual Local Government Law Institute

Friday, December 16, 2022, 8:30 a.m. - 4:00 p.m.

UBS Tower, Chicago (live) and also available via webcast

Topics include:

• Legislative & Caselaw Update
• Signage and Flags
• Advising Clients in Times of Crisis
• Lunch Panel: Second Amendment
• Zoning and Development
• Arbitration in Public Employee Discipline Cases
• Hot Issues in FOIA and OMA
• Local Government Attorney Wellness

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Court Rejects Challenge to Residential Rental Registration Ordinance

Court Rejects Challenge to Residential Rental Registration Ordinance

  Monday, October 31, 2022    Julie Tappendorf

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An Illinois Appellate Court recently ruled in favor of a village in a challenge to the constitutionality of the village's residential rental registration ordinance. Reynolds v. Village of Creve Coeur. 

In 2006, the village enacted an ordinance requiring registration of residential rental units, including mobile homes. The annual fee for registration was $5. In 2013, the village amended the ordinance to raise the fee to $25 per year and to authorize the village to inspect residential rental units for compliance with village building, utility, nuisance, and other ordinances and regulations. 

The owner of a mobile home park sued, claiming the village lacked authority to pass the rental registration ordinance, that federal law preempted the ordinance, and that the registration fee was an impermissible tax. Ultimately, the trial court dismissed all three counts of the lawsuit and the owner appealed the dismissal of count II of his complaint which had argued the ordinance was preempted by federal law. 

On appeal, the owner argued that the ordinance was preempted by the National Manufactured Housing Construction and Safety Standards Act of 1974 ("Act") and federal regulations adopted by HUD. The Appellate Court looked at the preemption provision of the Act which restricts state and local governments from adopting construction and safety standards on mobile homes that differ from HUD regulations. First, the Court determined that the owner's challenge to the constitutionality of the registration fee was not preempted by the Act because the fee did not impose a "construction or safety standard." Second, the Court held that any challenge to the ordinance's inspection provisions was not yet "ripe" because the owner did not claim the village had ever tried to inspect his mobile homes or enforce any ordinance violations against him so there was no "dispute" for the court to decide. Finally, the Court rejected the owner's claim that the ordinance was "unconstitutionally vague," finding that the owner waived that issue because he failed to raise it at the trial court. In sum, the Court upheld the ruling in favor of the village that dismissed the owner's challenge to the village's residential rental ordinance.

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Court Finds Referenda to Recall Mayor Null and Void

Court Finds Referenda to Recall Mayor Null and Void

  Thursday, October 13, 2022    Julie Tappendorf

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In Henyard v. Municipal Officers of Dolton, an Illinois Appellate Court found two referenda authorizing recall of a mayor and subsequently recalling the mayor null and void.

The village's mayor (also known as village president) was elected during the 2021 Consolidated Election. In December 2021, the village board placed two referenda on the general primary election ballot. The first referendum asked whether voters wanted to adopt a recall mechanism that would apply to the mayor effective upon certification of the general election results. The second referendum asked voters if the majority passed the recall mechanism, whether the mayor should be recalled and removed from office.

The mayor filed a lawsuit asking the court to find both referenda invalid and unconstitutional. The circuit court held the referendum provisions were null and void and directed the county clerk to take reasonable efforts to notify early voters of the court’s action; however, the appellate court "stayed" the ruling because early voting had started. The appellate court directed the clerk to conduct the referenda elections as planned, but prohibited the clerk from proclaiming the results as they would have no force or effect until further court order. The election took place, and the state’s attorney reported to the court that both referenda were approved,  and the appellate court then issued its ruling that the referenda were null and void.

The appellate court held that the village had no authority to recall a village official midterm. The court pointed to Illinois history of no public official ever being recalled midterm by a referendum vote – regardless of whether a recall mechanism was in place before the public official’s term began. The court also held the referendum was not clear or precise enough to implement a valid local recall process. The court stated a local referendum mechanism needs to be precise and clear, so it does not leave gaps to be filled by the legislature or municipal body. The court called the village's referenda “fatally vague and ambiguous” regarding the information needed for its implementation and enforcement.

As such, the appellate court concluded that the two referenda were null and void and directed the county clerk not to take an official tally of the votes nor announce the election results.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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PAC Finds Public Body Exceeded Scope of OMA Exception in Closed Session

PAC Finds Public Body Exceeded Scope of OMA Exception in Closed Session

  Wednesday, October 12, 2022    Julie Tappendorf

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In July 2022, the PAC received a complaint alleging that a school district board (School Board) improperly entered closed session during 16 separate meetings to discuss the Illinois General Assembly granting the school district a waiver to build a new school using federal COVID-19 pandemic relief funds. The complaint alleged that before the School Board's June 27, 2022 announcement, the Board was considering constructing a new school building but no prior School Board agenda items or minutes indicated that the Board discussed or voted on that waiver, or that the School Board even discussed building a new school.

In binding PAC Op. 22-012, The PAC concluded that the School Board exceeded the scope of OMA exception 2(c)(5), which authorizes public bodies to go into closed session to discuss the purchase or lease of real estate by a public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired. Specifically, the PAC determined that the School Board discussed funding for the school, legislative considerations, and various other topics concerning the project that were not considered in the context of the narrow topic of purchasing or leasing property for the school. The PAC rejected the School Board's argument that OMA exception 2(c)(5) allowed these collateral discussions because the School Board would eventually have to acquire property if it were to build a new school.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Episode 65: Highlights from the 2022 APA-IL Conference

Quorum Forum Podcast Episode 65: Highlights from the 2022 APA-IL Conference

  Tuesday, October 11, 2022    Julie Tappendorf

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 Ancel Glink's Quorum Forum Podcast is back with a brand new episode: Quorum Forum 65: Highlights from the 2022 APA-IL State Conference. A summary of what you will find on this episode is below.

Ancel Glink loves zoning, planning, and land use law. Join us for a special episode reflecting on the 2022 APA-IL State Conference, featuring highlights shared by Ancel Glink attorneys and law clerks. Topics include sign regulations, short-term rentals, affordable housing, and much more! 

Email your questions to podcast@ancelglink.com.

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Court Finds in Favor of Board of Fire & Police Commissioners in Discharge Dispute

Court Finds in Favor of Board of Fire & Police Commissioners in Discharge Dispute

  Friday, October 07, 2022    Julie Tappendorf

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In Scatchell v. Board of Fire & Police Commissioners for the Village of Melrose Park, et al., an Illinois Appellate Court upheld the decision of a local Board of Fire and Police Commission ("BFPC") to terminate the employment of a police officer based on several charges of misconduct.

In late 2017, a police officer took paid sick leave to recuperate from an on-duty injury. While on sick leave, the police department learned that the officer was reported to be out hunting when—based on doctor’s orders and department policy—he should have been resting at home. The department reached out to a branch of the Illinois Department of Natural Resources to request that conservation officers be on the lookout for the officer. A conservation officer eventually did spot the officer hunting with  several others, including a former police officer who was also a convicted felon and was not permitted to possess or use a weapon. When confronted by the conservation officer, the officer claimed he “could not say” whether his companion had fired a shotgun while they were out hunting. 

The department then investigated whether the officer abused his sick leave and whether he violated any department policies in his interaction with the conservation officer. During the investigation, the investigator issued the injured officer a Garrity warning, advising him that he was immune from criminal prosecution for any statements made during the investigation but could face discipline or discharge for refusing to answer questions. The injured officer acknowledged and signed the immunity notification.

During the BFPC's disciplinary hearing about these incidents, the officer refused to testify, invoking his Fifth Amendment right not to incriminate himself. The department renewed the injured officer’s Garrity immunity, reminding him that he could be disciplined for insubordination for not answering the questions presented during the disciplinary hearing. When he still refused to testify, the department added an insubordination charge. The BFPC decided to discharge the officer based on eight counts of disciplinary charges, including refusal to obey his superior’s direct order to testify during the hearing. The officer appealed, and the case made its way to the Illinois Appellate Court.

One of the issues that was discussed at length in the opinion was the nature of the Garrity immunity, which protects government employees from being prosecuted for statements they make during an internal investigation, so the government employee is not forced to choose between being fired and incriminating themselves. Once the immunity attaches, however, and the employee faces no possible criminal charges, he or she may be discharged for insubordination for refusing to answer questions related to potential misconduct.

Because the injured officer had been issued a Garrity warning, which remained intact throughout the investigation into his misconduct and the BFPC hearing, the Court decided the BFPC was justified in terminating the officer for insubordination (among several of the other disciplinary charges filed against him).

While the decision of the Court was quite detailed and lengthy, it is worth reading for an understanding of Garrity immunity and the Illinois Administrative Review Law.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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