June 2022 ~ Municipal Minute

Tuesday, June 28, 2022

Attorney General Issues Opinion on Pension Forfeiture for Former State Representative

Tuesday, June 28, 2022 Julie Tappendorf

Last week, the Illinois Attorney General issued an opinion responding to a question about pension forfeiture. Att'y Gen Op. 22-001. (Note that this opinion is not issued by the PAC office and is unrelated to that office's duties relating to OMA and FOIA).

The opinion was in response to a question raised by the General Assembly Retirement System (which deals with pension benefits for General Assembly members) as to whether former state representative Arroyo's guilty plea for felony wire fraud charges requires forfeiture of his pension benefits.

The Attorney General looked at Section 2-156 of the Pension Code which requires the forfeiture of retirement annuities and other pension benefits if a member is convicted of a service-related felony, as follows:

None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his or her service as a member.

The Attorney General noted that the purposee of the felony forfeiture provision was to discourage official mimsconduct by denying retirement benefits to public servants convicted of violating the public trust.

In applying this section of the Pension Code to the former representative's guilty plea, the Attorney General determined that his guilty plea for wire fraud "related to, arose out of, or was in connection with his official duties as a State Representative." Specifically, the Attorney General noted that the former representative's criminal conduct occured while he was a member of the state house, and the underlying facts of the offense demonstrated that he used his position as a state representative to obtain financial benefit for himself when he accepted monetary payments in exchange for a promise to vote in favor of legislation to legalize sweepstakes gaming machines.

Monday, June 27, 2022

Inmate Not Entitled to Fees and Costs under FOIA

Monday, June 27, 2022 Julie Tappendorf

An inmate at a correctional center made several FOIA requests to the Illinois Department of Corrections (IDOC) seeking his medical records and copies of administrative rules. IDOC initially denied the requests for medical records because the inmate failed to follow IDOC’s administrative policy. IDOC also initially denied the inmate’s copies for certain administrative rules based on FOIA exemptions.

The inmate sued IDOC alleging that (1) his medical records were withheld in violation of FOIA and (2) that the inmate was entitled to recover costs and penalties. The circuit court dismissed the inmate’s lawsuit, finding that the inmate’s medical records were exempt from disclosure until the inmate eventually followed IDOC’s administrative procedures and that the inmate was not entitled to penalties and costs. The court also directed IDOC to provide updated copies of the administrative rules originally requested by the inmate because the inmate was being relocated to another facility that did not possess copies of the updated administrative rules at issue. On appeal, the inmate solely claim that the circuit court erred by denying his request for fees and costs under FOIA.

In Watson v. Illinois Department of Corrections, the Appellate Court upheld the circuit court’s denial of fees and costs to the inmate, finding that the inmate did not prevail in his lawsuit. The Appellate Court noted that the circuit court granted IDOC’s motion to dismiss because the inmate was not entitled to the requested medical records under FOIA, which is an adverse judgment against the inmate. Although the circuit court had directed IDOC to produce updated copies of certain administrative rules, the Appellate Court clarified that the circuit court had denied the inmate’s claim that he was entitled to these documents on its merits. As a result, the Appellate Court upheld that circuit court’s decision to deny the inmate’s request for costs under FOIA section 11(i).

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Tuesday, June 21, 2022

Seventh Circuit Remands Case Relating to Right to Bear Arms T-Shirts in Schools

Tuesday, June 21, 2022 Julie Tappendorf

The Seventh Circuit Court of Appeals recently issued an interesting opinion on students right to free speech in the context of school clothing. N.J. v. Sonnabend.

Two middle school students sued their Wisconsin school districts after they were barred from wearing t-shirts with messages in support of the right to bear arms. One t-shirt displayed a Smith & Wesson logo with an image of a revolver. The other t-shirt displayed the logo of the Wisconsin Carry, Inc., a gun rights group, and an image of a handgun. The students sued their respective school administrators in separate lawsuits alleging violations of their free speech rights under the First Amendment. The cases were consolidated and the district court ruled in favor of the school administrators2, finding the administrators' actions to be viewpoint neutral and reasonable. The students appealed to the Seventh Circuit.

The Court of Appeals first determined that one of the students' case was "moot" because the student had graduated from middle school and was now in high school.

With respect to the other student's challenge, the Court first determined that the student's actions implicated the student's free speech rights since the t-shirt conveyed an expression of political speech (a favorable opinion of firearms and support for the right to bear them). However, the Court acknowledged that a school can justify restrictions on speech activities if the school can show that the speech "would materially and substantially disrupt the work and discipline of the school" or invade the rights of others. That standard was established in a previous U.S. Supreme Court case called Tinker v. Des Moines Independent Comm. Sch. Dist, involving a First Amendment challenge to school policies that prohibited students from wearing black armbands to express opposition to the Vietnam War. Because the district court did not apply the Tinker standard in this case, the Court of Appeals sent the case back to the district court to conduct that analysis.

Constitutional Issues

Friday, June 17, 2022

Court Finds FOIA Challenge Moot But Remands Back to Trial Court to Analyze Whether Initial Denial Was in Bad Faith

Friday, June 17, 2022 Julie Tappendorf

In 2018, an inmate filed two FOIA requests with the Illinois Department of Corrections (DOC) seeking personal information about other inmates and certain inmate master record files. The DOC denied both requests on the basis that the records were specifically prohibited from disclosure by state laws. The inmate filed a pro se lawsuit against DOC seeking civil penalties, attorney fees, and costs alleging that DOC improperly denied the inmate’s requests. While the inmate’s complaint was pending, the DOC provided him with records responsive to the initial FOIA requests. The trial court ruled in favor of the DOC in the lawsuit, and the inmate appealed, alleging that (1) the DOC’s mid-litigation disclosure of responsive records did not render his lawsuit "moot" and (2) the court should have granted him costs and civil penalties.

In Staake v. Illinois Department of Corrections, the Fourth District Court of Appeals upheld the trial court’s ruling in favor of DOC due to the case being moot, finding that because the DOC provided the inmate with the requested records, there was no controversy any longer.

However, on the issue of civil penalties, the Appellate Court reversed and remanded the case back to the trial court to determine whether the DOC denied the inmate’s requests willfully, intentionally or otherwise in bad faith.

In remanding the case back, the Appellate Court noted that the DOC failed to provide a detailed factual basis, or any explanation at all, for why the DOC failed to redact certain exempt information from the responsive records pursuant to exemption 7(1)(a), and thereafter provide the inmate with redacted records, as required by FOIA sections 7(1) and 9(b). In addition, the Appellate Court noted that while the DOC’s re-assessment of its original interpretation of FOIA exemptions used to deny the FOIA requests, by itself, was not enough to demonstrate bad faith under FOIA, the fact that the DOC only did so after the inmate filed the lawsuit warranted further consideration by the trial court.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Thursday, June 16, 2022

New Laws Raise the Competitive Bidding Threshold for Some Units of Local Government

Thursday, June 16, 2022 Julie Tappendorf

The Illinois General Assembly recently passed several new laws to amend competitive bidding requirements for some units of local government, as follows:

Public Act 102-0728 amends the Illinois Township Code to increase the competitive bidding threshold for the purchase of services, materials, equipment, or supplies as well as construction projects to $30,000 from $20,000.

Public Act 102-0999 amends the Illinois Park District Code to increase the competitive bidding threshold for contracts for supplies, materials, or work to $30,000 from $25,000.

Public Act 102-0138 amends the Fire Protection District Act to provide that improvements to real estate by a fire protection board of trustees that result in an expenditure of $20,000 or more must be competitively bid in accordance with the procedures set forth in that Act.

Public Act 102-0460 amends the Conservation District Act, Downstate Forest Preserve District Act, and the Cook County Forest Preserve District Act to require competitive bidding for the purchase of supplies, materials, or work when the expenses exceed $30,000 (previously $25,000).

Post Authored by Tyler Smith & Eugene Bolotnikov

Wednesday, June 15, 2022

Court Dismisses FOIA Lawsuit as "Moot" Where Records Were Ultimately Provided

Wednesday, June 15, 2022 Julie Tappendorf

A requestor submitted a FOIA request to a municipality seeking all approved sales tax sharing agreements/settlements approved within the past 30 days. The City initially denied the request, stating it had no responsive records because there had been no agreements approved in the preceding 30 days or the agreements were not yet signed by all parties. The requestor then sued the City claiming it had violated FOIA. However, after the lawsuit was filed, the City provided the requestor with two signed agreements responsive to the FOIA request. Several months later, the City also provided the requestor with three more documents responsive to the FOIA request. Then the City filed a motion to dismiss the lawsuit as moot because the requestor had since received all documents responsive to the request. The trial court dismissed the case and the requestor appealed, claiming that (1) the lawsuit was not moot, and (2) the City should have been ordered to pay the requestor's attorneys fees and assessed civil penalties.

On appeal, the Appellate Court in Kraft v. City of Kankakee upheld the dismissal of the lawsuit. Specifically, the Appellate Court declared that once the requestor received all documents responsive to the request, the controversy ceased to exist and the requestor’s claim was moot.

The Appellate Court also determined that the requestor was not a “prevailing party" in the FOIA lawsuit since the City had provided all requested documents to the requestor without a court order. As a result, the requestor was not entitled to attorney fees and costs.

Finally, the Appellate Court rejected the requestor’s claim for civil penalties under FOIA because the requestor failed to demonstrate that the City willfully, intentionally, and in bad faith failed to comply with FOIA. Because the FOIA request had sought approved agreements/settlements, the City did not improperly deny the request when it first responded that it had no responsive records, because at the time the request was submitted, the City’s responsive agreements/settlements had not yet been signed or executed. The Court noted that "a plaintiff cannot maintain a cause of action under FOIA where the records sought did not exist at the time of the FOIA request."

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Tuesday, June 14, 2022

New Law Protects Park Districts in Leases with Utility Companies

Tuesday, June 14, 2022 Julie Tappendorf

Last week, P.A. 102-1084, the Park District and Public Utility Liability Act, was enacted, providing good news for park districts, forest preserve districts, conservation districts, or other local entities with a park and recreation department or facilities (Parks Entity) who have leases with public utility companies. The new law provides that any provision in a lease agreement between a public utility and a Parks Entity that requires the Parks Entity to indemnify or hold harmless the public utility company against liability for injury or property damage caused by or resulting from the negligence (in whole or in part) of the utility company is against public policy, void, and unenforceable. The law makes it clear that the new law does not prevent or prohibit an agreement from including provisions that require the public utility company to indemnify or hold harmless the Parks Entity.

Monday, June 13, 2022

Court Upholds Denial of Request for Shooting Incident Records as Unduly Burdensome

Monday, June 13, 2022 Julie Tappendorf

After an officer-involved shooting incident in 2020, a police department (CPD) received FOIA requests asking for various records about the incident, including audio and video recordings. The CPD produced certain records, but also withheld others based on several FOIA exemptions, including applicable law enforcement exemptions and the unduly burdensome exemption. The requestors filed a lawsuit against the CPD alleging that (1) the CPD improperly withheld requested records, (2) failed to conduct a reasonably diligent search, and (3) willfully and intentionally violated FOIA by denying their requests. The trial court ruled in favor of the CPD, finding that it had proved that the requested records were exempt under applicable FOIA exemptions, that it had conducted a sufficient search for the records, and that it did not willfully violate FOIA. On appeal, the plaintiffs challenged the trial court’s finding that the CPD properly withheld the requested records, and in Kraft v. Chicago Police Department, the Appellate Court also ruled in favor of the CPD.

First, the Appellate Court held that the CPD demonstrated that the requested records were exempt under FOIA’s unduly burdensome exemption. Specifically, the Appellate Court found that the categorical request seeking all videos and emails related to the incident was unduly burdensome because the CPD’s affidavits indicated that it would take CPD personnel at least 213 hours of review to review 71 videos, as well as at least 1,000 hours to review 30,000 potentially responsive emails.

Second, the Appellate Court rejected the requestor’s allegation that the CPD failed to confer with the requestors in good faith, finding that the CPD affidavits established that it offered the requestors an opportunity to narrow their requests to more manageable proportions, but the requestors failed to do so. Although the Appellate Court acknowledged that the public has a significant interest in obtaining information related to officer-involved shootings, CPD demonstrated that its burden of complying with the request outweighed the public’s interest in this information, because (1) the requestors refused to extend the time to respond to these categorical requests beyond 10 business days, which placed a significant operational strain on the CPD during the pandemic, (2) responding to this request would require the CPD to review over 30,000 records which would require more than 1,200 hours of work, and the requestors failed to reduce the scope of their requests, and (3) the CPD did not foreclose the possibility of providing some records in the future based on receiving modified requests.

Post Authored by Eugene Bolotnikov, Ancel Glink

Freedom of Information

Friday, June 10, 2022

Court Upholds Municipal Vacation of Street

Friday, June 10, 2022 Julie Tappendorf

In 2016, a property owner try to buy a portion of a nearby right-of-way abutting the owner’s property in order to make the area of the owner’s property large enough to subdivide into two lots without requiring a zoning variance. In 2018, the municipality agreed to vacate a portion of its right-of-way to the owner in exchange for $80,000 and an easement guaranteeing the municipality continued public use and access to the vacated right-of-way. That same year, the municipality approved the vacation ordinance, which authorized vacating part of the subject right-of-way, and a subdivision resolution, which approved a preliminary and final play for the subdivision of the combined owner’s property and the vacated portion of the right-of-way.

Later in 2018, several residents filed a lawsuit against the municipality challenging the legality of the street vacation and subdivision of the property. Both the trial court and appellate court ruled against the residents in Boros v. Village of Oak Brook

First, the court rejected the residents’ claim that the vacation ordinance does not serve the public interest, finding that the ordinance helped settle ongoing litigation between the owner and the municipality, alleviated the municipality's financial burden of maintaining underused and unimproved land, allowed for the productive development of the property, among several other reasons that collectively demonstrated that the ordinance served the public interest.

Next, the court rejected the residents' claim that the vacated land fell under the public trust doctrine, finding that doctrine inapplicable because the state did not deed the vacated land to the municipality, and the municipality followed the vacation process set forth in state statute.

The court also rejected the residents' claim that the compensation received by the municipality was insufficient since the compensation was based on a number of factors, including the compensation paid to the municipality as well as the value of retained easements allowing the public continued access and use.

Finally, the court found that the residents lacked standing to challenge the subdivision approval because plaintiffs’ failed to demonstrate either an actual injury or a legally cognizable interest.

Post Authored by Eugene Bolotnikov, Ancel Glink

Land Use and Environmental

Thursday, June 9, 2022

Seventh Circuit Rejects Takings and Other Constitutional Challenges to Governor's COVID-19 Measures

Thursday, June 09, 2022 Julie Tappendorf

In response to Illinois Governor Pritzker's Executive Orders 2020-32, 2020-38, and 2020-43 (which included requiring residents to “stay at home,” compelling all “non-essential businesses” to temporarily close, and prohibiting gatherings of more than a specified number of people), several individuals and businesses filed suit against Governor Pritzker, claiming that his Executive Orders violated various provisions of the U.S. Constitution, including that the restrictions violated the First Amendment free speech, religious exercise, and assembly rights, their Due Process rights under the Fourteenth Amendment, and the Fifth Amendment’s Takings Clause. A federal district court dismissed the lawsuit, and the case was appealed to the Seventh Circuit Court of Appeals.

On appeal, the Seventh Circuit upheld the district court’s dismissal in Nowlin et al. v. Pritzker. The court determined that the individual plaintiffs did not establish the necessary injury in fact to satisfy Counts I through V. The court of appeals also dismissed Count VI (the Fifth Amendment takings claim filed by the businesses), finding that the businesses failed to establish that the Governor’s COVID-19 restrictions constituted a regulatory taking. Citing prior U.S. Supreme Court precedent discussing the burden of proof necessary to prove a taking by governmental regulation, the court reasoned that the businesses failed to show that Governor’s Executive Orders deprived the businesses of all or a significant part of their economically beneficial use.

Post Authored by Cheyanne Pincsak and Eugene Bolotnikov, Ancel Glink

Constitutional Issues / Covid-19

Wednesday, June 8, 2022

Municipality Not Liable for Sidewalk Trip and Fall

Wednesday, June 08, 2022 Julie Tappendorf

In Batelli v. Village of Addison, a pedestrian was injured after tripping on a clearly visible raised sidewalk square while walking along a publicly maintained sidewalk. The pedestrian sued the municipality, alleging the municipality's negligent failure to properly maintain its public sidewalks breached its duty of care owed to her as a pedestrian using publicly maintained walkways. The trial court ruled in favor of the municipality, finding that the municipality did not owe her a duty of care because the raised sidewalk was an “open and obvious danger.”

The appellate court agreed, finding that the danger presented by the clearly visible raised sidewalk square was such an open and obvious danger that a reasonably prudent pedestrian could have recognized and avoided the risk it created, and the municipality owed no duty to the pedestrian independent of the open and obvious danger exception. After weighing the burdens local governments would face from identifying and curing obvious sidewalk defects against the potential safety benefits for pedestrians, the court further concluded that the potential safety benefits for pedestrians were minor and the burdens faced by local governments would be immense forcing disproportionate costs on the municipality. In support of that conclusion, the court emphasized the inability of local governments to prevent natural forces from causing minor damages to sidewalks and that it would be impracticable to force local governments to zealously guard against “injuries from open and obvious sidewalk defects.”

Post Authored by Tyler Smith & Eugene Bolotnikov

Monday, June 6, 2022

General Assembly Amends Exotic Weed Act to Address Buckthorn Eradication

Monday, June 06, 2022 Julie Tappendorf

Effective January 1, 2023, municipalities will have express statutory authority to adopt ordinances to eradicate buckthorn on all public and private property within its jurisdiction. P.A. 102-0840 amends the Illinois Exotic Weed Act to add the following new language:

(d) Notwithstanding any other provisions in this Section for the control of exotic weeds, a municipality may adopt an ordinance to eradicate common buckthorn (Rhamnus cathartica), glossy buckthorn (Rhamnus frangula), saw-toothed buckthorn (Rhamnus arguta), dahurian buckthorn (Rhamnus davurica), Japanese buckthorn (Rhamnus japonica), and Chinese buckthorn (Rhamnus utilis) on all public and private property within its geographic boundaries.

Land Use and Environmental

Friday, June 3, 2022

PAC Issues Binding Opinion on Remote Meeting Agendas

Friday, June 03, 2022 Julie Tappendorf

The Public Access Counselor of the Attorney General's Office (PAC) just issued a binding opinion finding a public body in violation of the OMA for failing to include language on a meeting agenda informing members of the public how they could remotely attend a meeting of the public body that was held virtually. PAC Op. 22-007.

A village board of trustees posted an agenda of a regular meeting with language indicating that the board members would be attending the meeting virtually. A member of the public filed a request for review with the PAC office alleging that the board violated the OMA by not informing members of the public how they could attend the virtual meeting. The village responded that the meeting was broadcast on YouTube where members of the public could view it and that the village had publicized the meeting on its Facebook page.

The PAC determined that the village board violated the remote meeting procedures of section 7(e) of the OMA because it failed to include a web-based link or other information describing how members of the public could attend the virtual meeting. The PAC read various provisions of Section 7(e) together to make the determination that specific language (i.e., a web-based link, telephone number, or other access information) must be expressly stated on the agenda and that agenda must then be posted on the public body's website.

Public bodies that are meeting remotely should ensure that they include language on the agenda informing the public how they can attend the remote meeting, either in the form of a web-based link, telephone number, or other means of access, and also make sure the agenda is posted on its website. Although the OMA only requires public bodies to post agendas on their websites if a full-time employee of the public body maintains the website, the PAC interpreted section 7(e) more broadly to require public bodies to post agendas of remote meetings on their websites regardless of how their website is maintained.

Covid-19 / Open Meetings

Thursday, June 2, 2022

New Record Retention Requirements for Local Governments Addressing Dangerous or Unsafe Buildings

Thursday, June 02, 2022 Julie Tappendorf

Municipality and county officials should be aware of a new recordkeeping obligation relating to demolition records submitted to the municipality or county.

P.A. 102-847 amends the Illinois Municipal Code and Counties Code to require a municipality or county that brings a court action to demolish, repair, remediate, or enclose a dangerous or unsafe building within its jurisdiction (under 65 ILCS 5/11-31-1 or 55 ILCS 5/5-1121) to maintain for a period of 3 years any documentation submitted by a contractor relating to the disposal of demolition debris or uncontaminated soil generated during the demolition or work that identifies the following information:

hauler
generator
place of origin of the debris or soil
weight or volume of the debris or soil
location, owner, and operator of the facility where the debris or soil is transferred, disposed, recycled, or treated.

There is an exemption for permitted pollution control facilities that transfer or accept this type of debris or soil.

The Act also amends the Freedom of Information Act to expressly state that these records are public records subject to release under FOIA.

Freedom of Information / Land Use and Environmental

Wednesday, June 1, 2022

Court Properly Dismissed Challenge to City's Executive Order Requiring Early Closing for Liquor Establishments

Wednesday, June 01, 2022 Julie Tappendorf

In response to the COVID-19 pandemic, the Mayor of the City of Carbondale issued Executive Order 2020-04 (EO 4) on June 2, 2020, changing the closing hour of existing beer gardens in the City from 1:59 a.m. to 10 p.m. The holder of a “beer garden” license from the City repeatedly refused to follow the closure requirement despite numerous police warnings. On June 4, 2020, the Mayor issued a five day suspension of the bar owner's license for violation of the EO 4.

The bar owner then filed a lawsuit against the City and several City officials, seeking to overturn the suspension and invalidate EO 4. The City filed a motion to dismiss the lawsuit and the circuit court ruled in the City's favor, dismissing the lawsuit.

The appellate court affirmed, agreeing with the dismissal of the lawsuit in Knoob v. City of Carbondale. The appellate court noted that the lawsuit asked the circuit court to issue an order declaring EO 4 invalid and preventing the City and its officials from enforcing that order. However, after the lawsuit was filed, the City had changed the closing time back to 1:59 a.m. As a result, the appellate court held that a court ruling on the validity of EO 4 would have no practical effect on the controversy between the parties since there would be no need to enjoin the City or any of its named officials from enforcing the order that was no longer in place. The appellate court also rejected the licensee's request for money damages since the licensee had alleged in his complaint that he had refused to follow the order and close his business early anyway.

Post Authored by Eugene Bolotnikov, Ancel Glink

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