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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, July 29, 2022

School Board Members Blocking of Parents on Social Media Violated First Amendment

We have reported in the past about the potential implication of the First Amendment when public officials engage on social media. Not all conduct or activities by public officials will trigger First Amendment protections and rights, but when a public official creates a public forum on social media and then takes action that censors protected speech, courts have held that this action violates the First Amendment. Recently, the Ninth Circuit Court of Appeals addressed this issue in a First Amendment challenge involving two school board members, finding the two officials had violated the First Amendment rights of individuals who they censored on their social media sites. Garnier v. Ratcliff, 9th Cir. July 27, 2022

The two school members had initially set up social media sites for their campaigns. After they took office, they used those same social media pages to engage with citizens about school board matters. On their pages, they informed citizens about upcoming school board meetings, solicited input about board decisions, and communicated with parents about school safety and other pending issues. Two parents who frequently posted critical comments on the school officials' pages, had their posts deleted by the school board members. Eventually, both school officials blocked the parents from their pages. Shortly after the parents were blocked, the school officials set up a word "filtering" setting on their pages that blocked a number of commonly used words that, in effect, eliminated any comments from their pages.

The parents sued, claiming that the deletion of their critical comments and blocking from the school officials' pages violated their First Amendment rights. The school officials first argued that their social media pages were not a public forum, so they were not acting as "state actors" for purposes of a civil right action. They further argued that even the pages were a public forum, their blocking of the parents was a reasonable time, place, and manner restriction. Finally, they argued that by establishing a word filtering setting that blocked all comments they had effectively "closed" the public forum, so the lawsuit was moot.

First, the court rejected the school officials' argument that the case was moot, finding that the closing of a public forum does not "cure" a previous First Amendment violation.

Second, the court found that the two officials were acting as "state actors" when they were engaging on their social media pages. Nearly all of their activities on their pages related to their school official duties, they identified themselves as school officials, engaged with constituents about school board business, and regularly posted about school board business. The court acknowledged that other circuit courts of appeals had similarly found activities and conduct similar to these two officials to have created a public forum that would trigger First Amendment protections, including cases involving a Facebook page set up by the Loudoun County commissioner, former President Trump's Twitter account. Here, the court determined that the officials' had created a designated public forum on their social media sites and their activities in deleting critical comments and blocking critical commenters violated the First Amendment because it did not serve a significant government interest and was not narrowly tailored.

This case is definitely worth a read for government officials who engage in social media activities related to their government duties because it provides a detailed analysis of when a personal social media page and activities can convert into government action triggering the First Amendment.

Wednesday, July 20, 2022

City's Citation for Business License Violation Upheld by Court

Recently, an Illinois Appellate Court upheld a circuit court's ruling in favor of a City's administrative decision imposing a fine against a parking lot owner for failure to obtain a business license. 895 Wood Dale LLC v. City of Wood Dale.

The owner of a commercial parking lot applied for a City business license, but the City refused to issue the license because the parking lot did not comply with the City's landscaping requirements contained in its zoning code. The City then cited the parking lot owner for operating its business without a business license, and the City's administrative hearing officer imposed a $500 fine. The owner filed a lawsuit to challenge the City's administrative decision, and the circuit court upheld the hearing officer's determination. 

On appeal, the parking lot owner argued that the City was "estopped" from enforcing the landscaping requirements of the City's zoning ordinance because the City had previously issued permits for the parking lot and had not required the landscaping at that time, had not informed the plaintiff of the landscaping requirements when the City inspected the improvements. The owner argued that it had relied on the City's inspection and permitting approvals and the City should not be allowed to enforce its landscaping requirements to hold up its business licensing. 

The Appellate Court rejected the owner's arguments and upheld the City's administration decision against the parking lot owner. The Court noted that the mere fact that a permit had been previously issued by the City does not preclude the City from enforcing its code and requiring a property to comply with code requirements. The Court also determined that the costs the owner would incur in complying with the landscaping requirements are not the type of losses that trigger equitable estoppel because the owner was always obligated to follow the code requirements. In sum, the Court determined that the owner failed to establish its equitable estoppel argument, so the City's administrative decision was proper.

Tuesday, July 19, 2022

Fourth District Interprets FOIA Attorneys' Fee Provision

In response to a three-part FOIA request submitted to a City in January 2020, the City responded two weeks later that it did not possess responsive records to part 1 of the request, that part 2 was unduly burdensome, and that part 3 was “vague and ambiguous.” In response, the requestor asked to confer with the City to reduce his allegedly burdensome request to manageable proportions and requested the City to perform another search for responsive records. Several weeks later, the City produced one record responsive to part 2 of the request. 

The requestor filed a lawsuit against the City alleging that the City (1) violated FOIA by failing to timely produce non-exempt public records to his request, (2) failed to perform an adequate search for responsive records, and (3) willfully, intentionally, or otherwise in bad faith violated FOIA. After the lawsuit was filed, the City agreed to conduct an additional search and produced certain records to the requestor. The trial court ruled in favor of the City finding that the City performed an adequate search for requested records, that the City properly classified part 2 as burdensome and the request failed to reasonably identify records sought for part 3, and that the City did not willfully or intentionally violate FOIA or otherwise act in bad faith in responding to the request.

On appeal, the Fourth District Appellate Court in Martinez v. City of Springfield determined that the trial court erred when it failed to award attorneys fees to the requestor under FOIA section 11(i). The Fourth District held that the requestor “prevailed” in its FOIA lawsuit because the City produced the requested records after the lawsuit was filed. The Court agreed with the requestor that a court order is not a prerequisite to an award of attorney fees under FOIA. Since the City failed to comply with the statutory deadline and only produced responsive records after the lawsuit was filed, the Court remanded the case back to the trial court to hear arguments on the reasonableness of requested attorney fees.

The Fourth District acknowledged that there is some disagreement among the Appellate Districts on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger the attorneys' fee provision of FOIA. The Fourth District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if the requested records are provided while the FOIA lawsuit is pending, a plaintiff cannot have "prevailed" in that lawsuit for purposes of an attorneys' fee award under Section 11(i), at least not in the Second District. On the other hand, the First and Fifth Districts hold that the attorneys' fee provision of FOIA can be triggered even without a court order, meaning a plaintiff could have "prevailed" in his or her FOIA lawsuit even if the public body provides the records while litigation is pending. In this case, the Fourth District joined the First and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." 

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Thursday, July 14, 2022

PAC Finds Board in Violation of OMA for Closed Session Discussion

The PAC issued its 10th binding opinion of 2022 this week finding a public body in violation of the OMA for exceeding the scope of permissible topics in closed session. PAC Op. 22-010

At one of its meetings, a school district board went into closed session for 3 separate topics. Following the meeting, a request for review was filed with the PAC challenging the closed sessions as exceeding the topics allowed by the OMA. The PAC listened to the recordings of the three closed sessions and determined that two of them were within the scope of the OMA's permissible topics for closed session. However, the PAC determined that one of the three closed sessions exceeded the board's authority under the OMA. Specifically, the PAC noted that the topic discussed in this closed session involved discussions about student transportation bids and contracts, which were not a permissible topic for closed session. The PAC rejected the board's argument that the discussion related to probable or imminent litigation or a criminal investigation. The PAC ordered the board to release the recording and minutes relating to this particular discussion.

Tuesday, July 12, 2022

Court Finds No Common Law Dedication of Detention Pond to City

An Illinois Appellate Court recently ruled in favor of a municipality in a dispute between the municipality and homeowners as to the ownership and responsibility over a detention pond on the homeowners properties. Reich v. City of Lake Forest. 

Two adjacent property owners filed a lawsuit against the City claiming that the detention pond that straddles their two lots had previously been dedicated to the City through a "common law" dedication when the subdivision was first built and, as a result, the City was responsible for maintaining the pond. The City argued that there was no evidence that the developer of the subdivision intended to dedicate the pond to the City, nor any evidence that the City ever accepted the pond as a public improvement. The circuit court ruled in favor of the City, finding no evidence of dedication where neither the plat of subdivision nor the subdivision agreement referenced the dedication of the pond to the City. The court also noted that the City had not taken any action to maintain the pond over the years. On appeal, the appellate court agreed and upheld the ruling in favor of the City, finding no evidence that the developer of the subdivision had any intent to dedicate the pond to the City. Because the court found no evidence of donation, it did not address the issue of whether the City accepted the pond because the court noted that there can be no common law dedication in the absence of donative intent.

Disclaimer: Ancel Glink represented the City in this lawsuit and appeal.

Monday, July 11, 2022

PAC Issues Binding Opinion on FOIA Denial of Request for Union-Related Records

In January 2022, an individual submitted a FOIA request to a municipality asking for the names, work addresses, work e-mail addresses, job titles, hire dates, department names and union membership information for each City employee covered by the collective bargaining agreement with SEIU Local 73. The City denied the request pursuant to FOIA exemption 7.5(zz), which exempts from disclosure information prohibited from being disclosed by the Illinois Public Labor Relations Act (IPLRA). Specifically, the City asserted that sections 6(c-5), 10(a)(8), and 10(a)(9) of the IPLRA prohibited disclosing information responsive to the FOIA request.

After the requestor appealed the denial, the PAC issued PAC Op. 22-009, which concluded that the City properly denied the FOIA request pursuant to FOIA exemption 7.5(zz).

The PAC noted that Section 6(c-5) of the IPLRA expressly prohibits disclosing any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation, including whether employees are members of such organization or the identity of the organization.

While a public body's staff roster, employee business addresses, and public body-issued e-mail accounts are not generally exempt under FOIA, in this case, the PAC noted that the FOIA request to the City only requested information about employees covered by the City's collective bargaining agreement with SEIU Local 73. The PAC determined that providing responsive records that confirmed whether specific City employees are within a bargaining unit represented by SEIU Local 73 would necessarily reveal the identity of the organization and information concerning employee membership or membership status, in direct contravention of the IPLRA.

Although the requestor argued that identifying which employees are in a particular bargaining unit does not indicate whether they are union members, the PAC rejected this argument, noting that the FOIA request specifically sought each employee’s union.

The PAC also noted that an employee's ability to bring an unfair labor practice charge before the Illinois Labor Relations Board or file suit in circuit court against an employer for disclosing employee information in violation of section 6(c-5) underscores the mandatory nature of the provision, which was intended to insulate employees from third party communications concerning their union membership status.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, July 5, 2022

Agenda Did Not Adequately Describe Action Items as Required by the OMA

In binding PAC Opinion 22-008, the PAC found a Farm Committee (Committee) of a County Board (Board) in violation of the OMA when it voted on two resolutions without adequately describing the actio items on the Committee's meeting agenda.

In April 2022, an individual submitted a request for review with the PAC, alleging that the Committee violated the OMA by voting to approve two resolutions to (1) hire a person to obtain crop insurance and (2) borrow money for crop expenses without listing either item on the Committee’s April 7, 2022 meeting agenda. In response to the PAC, the Committee asserted that item 3 of its April 7, 2022 meeting agenda, which stated “[d]iscussion and vote on recommendation to the County Board regarding farming options for the County Farm," provided sufficient advance notice of its final actions.

The PAC concluded that the Committee violated section 2.02(c) of the OMA by taking final action on the two resolutions without describing the general subject matter of those actions on the April 7, 2022 meeting agenda. Although the PAC acknowledged that the term general subject matter is inherently ambiguous and has not been "precisely" defined by the OMA or Illinois courts, the PAC stated that section 2.02(c) requires that a public body’s agenda include sufficient detail to notify members of the public about the types of final actions a public body anticipates taking. Here, the Committee took final action by recommending that the Board (1) attain crop insurance and (2) borrow money for crop expenses, but the PAC found that the agenda for the Committee’s meeting failed to list the general subject matter of either of those action items.

The Committee argued that even if it violated the OMA at its April 7, 2022 meeting, the Board cured its violation by considering and voting on the Committee's recommendations at its April 14, 2022 meeting. In response, the PAC rejected this argument, reasoning that because the Committee and the Board are separate public bodies for the purpose of complying with OMA requirements, the Board's actions at its April 14, 2022 meeting did not cure the Committee's violation of OMA at its April 7, 2022 meeting. That being said, because the Board already considered and voted on the Committee's recommendations, the PAC did not see a legal or practical reason for the Committee to prepare a new agenda and re-vote on its final actions.

Post Authored by Eugene Bolotnikov, Ancel Glink