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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

Wednesday, March 29, 2023

County's Cast Vote Records Exempt from FOIA

In a September 20, 2022 non-binding determination, the PAC determined that a county clerk's office properly denied a FOIA request for "cast vote records" (the digital equivalent of the ballots casts), finding that these records are exempt from disclosure under the Election Code, which limits access to ballots. Ill. Att'y Gen. PAC Req. Rev. Ltr. 73290.

Tuesday, March 28, 2023

PAC Finds Book Banning Discussion Improper Topic of Closed Session

In a non-binding determination letter issued on October 7, 2022, the PAC determined that a school board violated the OMA when it improperly engaged in closed session discussions about banning a particular book from the school libraries. The school board defended its action by arguing that the discussion was permissible because it related to specific employees of the district and their actions in placing the book in the school libraries. After listening to the verbatim recording, the PAC rejected the school board's argument, finding that the majority of the school board's discussion in closed session was about the content of the book itself and whether it should be removed from the school libraries, which the PAC determined were not proper topics for closed session. Ill. Att'y Gen. PAC Req. Rev. Ltr. 72733.

Monday, March 27, 2023

PAC Issues 2022 Annual Report and Provides Guidance on 48 Hour Agenda Postings

The Public Access Counselor of the Illinois Attorney General's Office (PAC) recently published its annual report for 2022 providing statistics on the work done by that office in 2022, including summarizing all of the binding OMA and FOIA opinions issued in 2022 (13 in total) and providing summaries of a few of the advisory opinions and informal resolutions from last year. You can find the report here

Regular readers of Municipal Minute know that we regularly report on the PAC's binding opinions. However, we can only report on advisory opinions and other more informal determinations of the PAC when we become aware of these unpublished records. Today, and in future posts, we will take the opportunity to inform our readers about some of these unpublished determinations from 2022.

Ill. Att'y Gen. PAC Req. Rev. Ltr. 70125

In March of last year, the PAC issued an advisory opinion that answers a question that occasionally comes up regarding the 48-hour agenda posting requirement under the Open Meetings Act, and whether that requires posting the agenda 48 "business" hours or "calendar" hours before the meeting. We have taken the position that unless a statute specifically refers to "business" days or hours, then the time is measured in calendar days and hours. The PAC confirmed that interpretation in a March 18, 2022 determination (issued on March 18, 2022), finding that the agenda posting requirement of 2.02(a) of the OMA does not require the public body to post its agenda 48 business hours before the meeting

So, if a public body has scheduled a meeting for Monday night at 7:00 p.m., the agenda for that meeting must be posted no later than Saturday night at 7:00 p.m., i.e., 48 "calendar" hours prior to the meeting.

Stay tuned for more summaries of recent PAC FOIA and OMA determinations.

Thursday, March 23, 2023

Court of Appeals Upholds City's Denial of Cannabis Dispensary

Although this case was decided by the Sixth Circuit Court of Appeals (which does not cover Illinois), it is still an interesting land use case worth reporting on.

The City of Detroit denied a permit application to operate a medical marijuana dispensary in the City. The City based its decision on the location of the proposed dispensary, which would fall within the City's "drug free zone" as established by the City Code. The City Code prohibits locating a medical marijuana facility “within 1,000 radial feet of the zoning lot” of certain sensitive places, including a school, and the City determined that the proposed facility would be within 1,000 feet of an existing school. 

The operator sued, claiming the City violated its substantive due process and equal protection rights, arguing, among other things, that the City had allowed similar facilities within the drug free zone. The federal district court dismissed the case, and the operator appealed to the Sixth Circuit Court of Appeals, which upheld the dismissal. The Court of Appeals rejected the operator's claims that two identified facilities were "comparators" under an equal protection argument, and noted that there were a number of other facilities that had been denied permits for similar reasons that the City denied the operator's permit. Green Genie v. Detroit

Monday, March 20, 2023

PAC Finds Public Body in Violation of OMA for its "Meet and Greet"

The Public Access Counselor of the Attorney General's Office (PAC) recently found a public body in violation of the Illinois Open Meetings Act for holding an improper meeting. PAC Op. 23-003.

A member of a library board of trustees filed a request for review with the PAC office alleging that the board president and two other trustees met to discuss various staffing, salary, and other issues of the public body without posting notice or complying with other OMA requirements. The board submitted a response to the PAC, arguing that the "Meet and Greet" that was attended by 3 members of the 7 member board of trustees as well as staff of the public body did not constitute a meeting under the OMA because it was an informal gathering for the board members to get to know the staff and to answer staff questions.

After reviewing the video recording of the "Meet and Greet," the PAC determined that the gathering reflected more than a social gathering and involved a majority of a quorum of the board of trustees answering questions from staff about substantive public business. The PAC noted that there does not need to be formal action taken by the board for a gathering to constitute a "meeting" under the OMA, and the substantive discussions held by a majority of a quorum of this public body was sufficient for the "Meet and Greet" to qualify as a meeting. Because the board did not provide advance notice of the meeting as required by the OMA, the PAC found the board in violation of the OMA, and ordered the board to release the video recording of the meeting and to prepare and approve meeting minutes.

This opinion is an important reminder to Illinois public bodies that a "gathering" of a majority of a quorum of a public body does not need to involve formal action or a vote to qualify as a meeting under the OMA. As the PAC stated in its opinion:

The requirements of the OMA apply not only to those gatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of collecting information.

Friday, March 17, 2023

Seventh Circuit Upholds Sign Code Variance Procedure

The Seventh Circuit Court of Appeals recently ruled against a billboard company in its First Amendment challenge to a county’s sign code. GEFT Outdoor, LLC v. Monroe County.  

A billboard company sought to install a digital billboard which did not comply with the county's sign code regulations. The company applied for a variance from the County’s Board of Zoning Appeals (BZOA). After the BZOA denied the variance request, the billboard company sued the county under a First Amendment challenge claiming the sign code contained unconstitutional content-based restrictions on speech, and that the sign code’s permit procedures and variance procedures were unconstitutional "prior restraints" on speech. The federal district court issued an injunction preventing the county from enforcing sections of its sign code, including the permit and variance procedures. However, the district court determined that the challenged provisions of the sign code were "severable" from the rest of the sign code and upheld the remaining content-neutral regulations of the county’s sign code.  

On appeal, the county challenged the district court’s ruling that the sign code’s variance procedures were an impermissible prior restraint on speech because the BZOA had broad discretion in making decisions to grant or deny a requested variance. The Seventh Circuit Court of Appeals ruled in favor of the county, finding the variance procedures to be a permissible prior restraint on speech. The Seventh Circuit also vacated the injunction that blocked the county from enforcing its zoning variance procedures. 

The Seventh Circuit also found that the billboard company had ample alternatives for speech (it could install a sign that complied with the sign code’s content-neutral restrictions), and that the variance procedures presented a low risk of censorship by the BZOA.  

Finally, the Seventh Circuit upheld the district court’s ruling that the challenged permitting provisions of the sign code were severable under Indiana state law. Since the sign code’s permitting provisions were severable from the rest of the sign code, the Seventh Circuit upheld the remainder of the content-neutral regulations in the county’s sign code and sent the case back to the district court for further proceedings.

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

Thursday, March 16, 2023

Amusement Tax on Tour Boat Operators Preempted by Federal Law

An Illinois Appellate Court recently struck down a municipality’s amusement tax, finding the tax was "preempted" by federal law. Wendella Sighting Company v. City of Chicago.

In 2008, a municipality amended its amusement tax ordinance to require that all amusement owners secure an amusement tax from patrons to be payable to the municipality’s revenue department. A sightseeing boat tour company operating on Lake Michigan and the Chicago River sought relief administratively after it was assessed $3.2 million in amusement taxes and interest from the municipality. An administrative law judge (ALJ) ruled in favor of the boat tour company on the grounds that federal law, "The Rivers and Harbors Act" (RHA), preempted the municipality’s amusement tax. The RHA limits local regulation of vessels that travel federal waters. Both the circuit and appellate courts upheld the ALJ’s decision in favor of the boat company. While the decision was pending with the ALJ, the municipality amended its amusement tax to solely impose the tax on the tour boat operator rather than requiring the collection of the tax from the patrons.

The boat tour company challenged the amended ordinance in court, asking the court to declare the tour boat tax void. The circuit court ruled in favor of the boat tour company, finding that the RHA preempted the amended ordinance as well. 

On appeal, the municipality argued there was no preemption because the tour boat operator tax was not a tax on a vessel as prohibited under the RHA but instead was a tax on the business revenue of the tour company. The Appellate Court rejected that argument, pointing to federal court decisions interpreting a vessel to include the passengers, crew, and captain of a ship. Further, the court noted the Tonnage Clause of the US Constitution had been interpreted to prohibit taxes on vessels, captains, and passengers. 

The Appellate Court also noted that because the tax was based on the fees that patrons paid to the tour boat operator, the tax is still placed on the patron as it was in the amusement tax ordinance. 

Finally, the Court found that the RHA was clear about what limited taxes are allowed on vessels operating on federal waters, and if Congress viewed a tour boat operator tax as permissible, it would have included it as an exception to the RHA's limitations. 

In conclusion, the Court was clear that any tax burden falling on the patron or owner of a tour boat operating on federal navigable waters is preempted by federal law.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Monday, March 13, 2023

APA-IL Looking for Pro Bono Planning Projects

The Illinois division of the American Planning Association (APA-IL) is seeking applications from Illinois municialities and neighborhood/non-profit/community organizations for pro bono assistance with a planning project. Applications are due March 27, 2023, and details about the pro bono planning assistance program and eligibility requirements are detailed on APA-IL's website (link below), with a brief summary of the mission of the program below:

Pro Bono Service Program
The mission of the APA-IL Pro-Bono Planning Service Program is to provide urban planning services on a pro bono basis by APA-IL members, to assist municipalities, nonprofits, and community / neighborhood groups in the initiation, organizing, and fine tuning of early stage planning projects.

Thursday, March 9, 2023

Proposed Bill Seeks to Limit Efforts to Ban Books in Illinois Libraries

House Bill 2789 was introduced last month in the Illinois General Assembly to address the acquisition and circulation of library materials by public libraries in the State of Illinois. The proposed legislation declares it to be State policy:

to encourage and protect the freedom of pubic libraries and library systems to acquire materials without external limitation and to be protected against attempts to ban, remove, or otherwise restrict access to books or other materials.

If passed, the bill would require Illinois public libraries to develop written policies to prohibit the practice of banning books or other materials in order to be eligible to receive grant funding from the State. 

We will monitor this bill and provide an update as it makes its way through the legislative process in Springfield.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, March 8, 2023

Appellate Court Upholds Code Enforcement Against Homeowners

An Appellate Court recently upheld a municipal code enforcement action against homeowners in City of Altamont v. Fritcher.

The City issued an abatement notice to homeowners after the homeowners extended their backyard privacy fence and encroached onto a City public utility easement. The homeowners appealed, requesting that the City allow them to keep the extended fence in place as a reasonable accommodation to protect their disabled child. An alternative reasonable accommodation was offered by the City but was rejected by the homeowners. The City then brought an ordinance violation action against the homeowners. The circuit court ruled in favor of the City, finding that the City did not selectively enforce the ordinance against the homeowners, and the City had offered a reasonable accommodation to the homeowners.

On appeal, the Appellate Court upheld the circuit court’s ruling in favor of the City.

First, the Appellate Court determined the landowner’s selective prosecution claim failed as the homeowners presented no evidence of discrimination in the City’s enforcement of its ordinances. The Court emphasized that the City had an independent and rational basis for its decision to prosecute the homeowners’ code violation as the homeowners “intentionally constructed a fence in violation of an ordinance and intentionally failed to obtain the required permit . . . after being given notice.”

Next, the Appellate Court upheld the dismissal of the homeowners’ reasonable accommodation claim. The Court noted that the Americans with Disabilities Act (ADA) and Fair Housing Amendments Act (FHAA) requires municipalities to offer a reasonable accommodation to disabled individuals for rules and policies which harm disabled individuals because of their disability. Because the City’s ordinance restricted use of privately owned land by all citizens, and not just disabled individuals, the Court held the homeowners were not entitled to a reasonable accommodation. Furthermore, the Court also found that the homeowners were not entitled to a reasonable accommodation because of their failure to provide the City with a meaningful opportunity to assess the requested accommodation before construction of the fence occurred. Finally, the Court noted individuals are not entitled to municipal code waivers when the requested waiver amounts to a fundamental and unreasonable change of the code.

Post Authored by Tyler Smith & Julie Tappendorf

Tuesday, March 7, 2023

Compliance with the Decennial Committees on Local Government Efficiency Act

On June 10, 2022, Governor Pritzker signed the Decennial Committee on Local Government Efficiency Act, 50 ILCS 70/1 et seq.,  into law. This law requires all Illinois local governments that impose a tax (as defined in the Act and excepting municipalities and counties) to convene a committee to study and report on local government efficiency. There are certain actions impacted local governments must take to begin compliance with this law by no later than June 10, 2023.

Under this law, impacted local governments must:

1     Form a committee to study local efficiencies and meet for the first time no later than June 10, 2023.  

2.  Have the committee meet at least three times.

3.  Prepare a written report with recommendations (if any) on efficiencies and increased accountability.

4.  File the report with the county (or each county in which your local government is located).


The Act applies to "all entities that levy taxes and are also units of local government, as defined in Section 1 of Article VII of the Illinois Constitution, except municipalities and counties."


Section 10(b) of the Act specifies that the committee’s membership must include the elected or appointed members of the governing board. In addition, it must include any chief executive officer (such as an executive director, administrator, or manager) and “other officer” of the local government. The committee must also include at least two residents within the territory served by the local government who are appointed by the committee chair. The committee chair can also appoint others to serve on the committee. Committee members are not compensated but can be reimbursed for any committee-related expenses.


The committee is required to meet at least three times, with the first meeting occurring no later than June 10, 2023. The committee meeting can be the same day as the governing body’s board meeting. It can even be a part of the regular board meeting, provided the committee meeting is listed as a part of the meeting agenda and there is a majority of the committee members present. All other requirements of the Open Meetings Act (notice, minutes, etc.) also apply to these committee meetings.


The committee must “summarize its work and findings within a written report, which must include recommendations in respect to increased accountability and efficiency and must provide the report to the county board in which the governmental unit is located no later than 18 months after the formation of the committee.” The goal is for the committee to study and report on local government efficiencies.  Ultimately, this can be as simple or complex as you make it. 

First meeting: This meeting would essentially be an “organizational” meeting to identify committee members, set deadlines for next steps, designate different committee members to compile information and identify efficiencies the local government currently has in place, and whether there are increased opportunities for efficiency and whether there are additional opportunities for accountability. This would include identifying any intergovernmental agreements currently have in place, or whether there are additional opportunities for intergovernmental cooperation (sharing equipment, personnel, resources, etc.). The committee can also discuss at this meeting whether the committee members want to gather and analyze information, or whether it wants to employ specialists in public administration and governmental management or other consultants. Keep in mind, however, that this law is an unfunded mandate, so payment for anyone hired by the committee will have to come from existing funds. 

Second meeting:  This meeting could be used to take the information gathered by the committee and compile it into a draft report. The committee can also identify any additional information that might be needed to prepare a final report.

Third meeting:  At this meeting, the committee can finalize and approve the report.

Remember, the Act requires a minimum of three meetings but a committee could have as many meetings as it needs or wants. These meetings could be held throughout the year leading up to the report deadline, which is 18 months after the first committee meeting. 

Additional Requirements:  At the end of each meeting, the committee must “conduct a survey of residents who attended asking for input on the matters discussed at the meeting.” A committee could poll the people present at the meeting while at the meeting or send out an email survey to those attendees who provided an email address.


Section 25 of the Act requires the committee to provide its report to the county board. 

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

Monday, March 6, 2023

Quorum Forum Podcast: Episode 70 (Case Law Update)

Ancel Glink has released its 70th episode of its Quorum Forum Podcast: Magistrate Madness (Case Law Update), described below:

This March, we’re headed from the basketball court to a court of law to hear the most important and interesting recent cases affecting local governments from Ancel Glink Today. 

From social media to sunshine laws, what important issues are impacting your organization? Email us, podcast@ancelglink.com!

Thursday, March 2, 2023

CORRECTED Update to PAC Email Address

Update to Correct Public Access Counselor's name

Just a quick heads up to Illinois FOIA Officers - the Illinois Public Access Counselor (PAC) has changed the PAC's email address so you should update your FOIA forms and other communications to use the updated email address. As you know, Section 9 of FOIA requires that every notice of denial (full or partial denial) must inform the requester of the right to review by the PAC and provide the contact information of the PAC. Below is the updated PAC contact information to update your forms and responses, and to use in any future communication with the PAC:

Leah Bartelt, Public Access Counselor

Office of the Illinois Attorney General

500 South 2nd Street

Springfield IL 62701



Tuesday, February 28, 2023

Seventh Circuit Upholds Ruling of Qualified Immunity in Arrest

In a recent ruling, the Seventh Circuit Court of Appeals upheld a ruling in favor of police officers in a Fourth Amendment lawsuit against the officers who arrested an individual for having a rifle, bayonet, handgun, and other weapons in a public park on the basis that the officers had qualified immunity. Pierner-Lytge v. Hobbs.

Police were contacted by a number of parents of children playing in a park that a woman was in the park wearing a rifle with a bayonet on her back and a handgun strapped to her hip, along with pepper spray, a baton, and two pairs of handcuffs. Police arrived at the scene and ultimately arrested her for disorderly conduct. She sued, claiming the police violated her civil rights in arresting her without probable cause. The district court ruled in favor of the officers, finding they had qualified immunity in this action. On appeal, the Seventh Circuit upheld the ruling in favor of the officers, finding that they were entitled to qualified immunity in this case because they reasonably believed they had probable cause to arrest the individual based on the circumstances at the time of arrest. 

Monday, February 27, 2023

Court Denies Award of Attorneys Fees and Civil Penalties in FOIA Challenge

A watchdog group filed suit against a township claiming the township violated the Freedom of Information Act (FOIA). The group had requested a "copy of the hard drive contents" of a specified township computer. The township responded that because it did not have the capability in-house to copy the entire hard drive onto an external hard drive to release to the group, it had to outsource that job, and informed the group it would have to pay $350 for the outsourcing services and an external hard drive. 

The circuit court ruled in favor of the group on its FOIA challenge, and ordered the township to make copies of the documents that were on the hard drive and release those to the group. The court rejected the group's request for an award of attorneys fees and civil penalties, finding that the lawsuit was unnecessary because the group could have made a reasonable attempt to clarify that its request was for copies of documents and not a copy of the actual hard drive.

On appeal, the Appellate Court upheld the circuit court's ruling, agreeing that the group was not entitled to attorneys fees or civil penalties in this case. The Appellate Court noted that the township was willing to produce the records, and the group could have avoided unnecessary litigation and litigation expenses had it clarified to the township what it was actually requesting. As a result, the Appellate Court held that the township did not willfully, intentionally, and in bad faith fail to comply with FOIA so as to justify an award of attorneys fees or the imposition of civil penalties against the township. Edgar County Watchdogs v. Joliet Township

Friday, February 24, 2023

Seventh Circuit Finds Due Process Violation in Police Chief Termination

In a recent decision, the Seventh Circuit Court of Appeals determined that a municipality violated its former police chief’s due process rights when it terminated him without providing an opportunity to be heard. Bradley v. Village of University Park,  

In 2014, a municipality hired a new police chief with a two-year written employment contract. The contract provided that if the chief was terminated “without cause,” he would be entitled to severance in the amount of four months’ salary. After the 2015 municipal election, the newly elected mayor and village board placed the chief on administrative leave and ultimately terminated him. The municipality argued that the termination was required by state law because the employment contract between the municipality and chief had a term that extended past the term of the mayor who had appointed him. The municipality asserted that because the termination was by "operation of law," the municipal board did not need to vote on the termination or provide reasons or a hearing. The chief subsequently requested a hearing before the municipality and subsequently sued the municipality, claiming that he was deprived of his constitutionally protected property interest in his position as police chief without due process of law and that the municipality breached his employment agreement.

The district court dismissed the chief’s due process claim, and the chief appealed to the Seventh Circuit. On appeal, the Seventh Circuit reversed the district court decision, finding that the chief had alleged a violation of his due process rights. The case was then remanded back to the district court, which ruled in favor of the municipality. The chief appealed a second time to the Seventh Circuit.

On the second appeal, the court ruled in favor of the chief on his due process claim.  First, the Seventh Circuit noted that the municipality had already stipulated the chief had a property interest in his position, so had waived any argument to the contrary on that issue. Second, the Seventh Circuit held that the chief successfully established that his due process rights were violated when he was not provided an opportunity to be heard regarding his termination. However, on the chief's breach of contract claim, the Seventh Circuit ruled in favor of the municipality, finding that the municipality had exceeded its authority under the Illinois Municipal Code when it entered into a contract that extended past the appointing mayor’s term, so the chief lacked a valid and enforceable contract. The Seventh Circuit remanded the case back to the district court on the issue of damages and the mayor’s claim of qualified immunity.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, February 22, 2023

Appellate Court Rejects Challenge to Chicago’s Short-Term Rental Ordinance

Earlier this month, an Illinois Appellate Court upheld the dismissal of a challenge to Chicago’s short-term rental (STR) ordinance. Mendez v. City of Chicago.

The City’s STR ordinance regulates short-term housing arrangements, like those offered on Airbnb and VRBO. In 2016, two residents filed a lawsuit to challenge the original STR ordinance and later added several claims to address the City's amended ordinance. The lawsuit included a variety of claims, including the following:

1. Inspection Requirement

Under the STR ordinance, hosts with more than one rental unit are subject to an inspection every two years. The plaintiff-hosts challenged the inspection requirement, arguing it authorized searches without their consent in violation of the Illinois Constitution. The Appellate Court upheld the dismissal of this claim, finding that the claim was not “ripe” because the building commissioner had not yet adopted rules governing these inspections, so no host was actually subject to a search that might "offend" their constitutional rights.

2. Primary Residence Requirement

Another provision of the STR ordinance requires short term rentals to be the host’s primary residence, with certain exceptions. The plaintiffs argued that the building commissioner was given too much discretion to determine whether a home is exempt from the primary residence rule, in violation of their due process rights. The Appellate Court rejected that argument, finding, among other things, that because neither plaintiff-host had applied for an exemption, they failed to exhaust necessary administrative remedies before filing a lawsuit.

3. Noise Restrictions

The STR ordinance prohibits “excessive loud noise” on STR properties between 8:00 PM and 8:00 AM each night, defined as noise “louder than average conversational level at a distance of 100 feet or more, measured from the property line of the . . . unit.” Plaintiffs challenged the noise standard as vague, and pointed out that similar regulations do not exist for hotels, bed-and-breakfasts, or other renting businesses. The Appellate Court dismissed this challenge, finding that the noise restrictions provided sufficient notice and clear standards to comply with due process and were not discriminatory since most hotels are located in commercial rather than residential districts.

4. Ban on Single Night Rentals

Under the STR ordinance, hosts are forbidden from renting their properties “for any period less than two consecutive nights” until City officials adopt future regulations ensuring that single-night rentals can be effectively and safely conducted. The Appellate Court found the ban to be a fair and reasonable exercise of the City Council’s legislative power.

5. Taxpayer Standing

Finally, the plaintiff-hosts claimed they had “taxpayer standing” to argue that enforcement of the STR regulations was a misuse of taxpayer dollars. The Appellate Court rejected their argument, finding that the hosts presented no evidence they will be required to pay increased sales or property taxes to account for the enforcement of the STR regulations so they could not establish taxpayer standing to challenge the ordinance.

In upholding the ordinance, the Appellate Court noted that municipal ordinances are entitled to a presumption of constitutionality that can only be overcome by clear and convincing evidence, which plaintiff-hosts failed to overcome.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, February 21, 2023

Bill Would Amend ARL Regarding "Parties of Record"

A bill was recently introduced in the Illinois General Assembly that would expand on existing language in the Administrative Review Law (ARL) regarding necessary "parties of record" in a lawsuit challenging an agency's decision. As a general rule, the ARL requires that "parties of record" be named as defendants in any ARL action to challenge the decision of an administrative agency. There is an exception in the statute that provides that only the zoning board of appeals and applicants are considered "parties of record," and individuals who appear before the zoning board of appeals and submit testimony or written evidence need not be named as defendants but only require notification of the lawsuit by the person challenging the decision. 

Senate Bill 283 would expand on the zoning board of appeals "exception" to also include actions against agencies that make decisions on historic preservation or architectural review matters, such as historic preservation commissions and architectural review commissions. If passed, this means that members of the public who testify or provide evidence at hearings of these type of administrative agencies would receive notice of the lawsuit challenging the administrative decision but would not need to be named as defendants in the lawsuit. The bill also provides these individuals with the right to intervene in the action if they choose to.

Thursday, February 16, 2023

Court Reverses Teacher's Dismissal for Facebook Posts

In a recent Illinois Appellate Court ruling, the Court reversed a school district's termination of a teacher for her personal social media activities. Kelleher v. ISBE.

After a parent raised concerns about a teacher's Facebook posts about her students, the school district investigated the teacher's social media page (which was publicly visible), and placed the teacher on paid leave while it discussed disciplinary options. After settlement negotiations were unsuccessful, the school district terminated the teacher, identifying 16 charges against her, including her Facebook posts which the district claimed violated the school's social media policy.

The teacher then requested a hearing, and the hearing officer upheld a number of the charges, including the teacher's violation of the school's social media policy and confidentiality of student information. The hearing officer found that the teacher had done the following on her public Facebook page: (1) made unprofessional, inappropriate, and disparaging remarks about students; (2) discussed her interactions with students; (3) disclosed her communications with parents; and (4) declared that she would share her parent communications with other individuals. The hearing officer found that, although the teacher did not refer to any of the students or parents by name, she did make references to specific incidents and problems. The hearing officer concluded that the teacher's “inappropriate Facebook posting” was not remediable conduct. The hearing officer rejected many of the school district's other charges. 

The school board accepted the hearing officer's findings of facts and recommendation to dismiss the teacher for cause, and affirmed the teacher's dismissal for cause based on the sustained charges. The teacher then filed suit in circuit court to challenge her termination, which upheld the board's dismissal of the teacher.

On appeal, the Appellate Court held that "despite the inappropriateness of the plaintiff’s Facebook posts and the problems that potentially could have occurred from them," the teacher was entitled to the statutory written warning from the school board before being dismissed based on this conduct. The Court also found that the evidence presented to the hearing officer did not demonstrate that the teacher's posts had caused any damage or injury at the time the school district discovered them and that a warning at that time could have have enabled the teacher to delete the posts and make her Facebook account private before the posts were seen by any students or other parents or community members. As a result, the Appellate Court reversed the school board's decision to terminate the teacher.

Wednesday, February 15, 2023

Remote Meetings After May 11th

The Governor has announced his intention not to renew the COVID-19 disaster declaration beyond April, letting it expire on May 11, 2023. This means that as of May 12, 2023, public bodies will no longer be able to conduct remote meetings under the current "public health" provision contained in section 7(e) of the Open Meetings Act. 

There have been a few bills proposed in the Illinois General Assembly that would expand the "public health" provision of the OMA to authorize the "chief elected or appointed official" of the public body to make a determination that an in-person meeting would pose a risk to the health or safety of the members of the public body or the public rather than requiring that a state-issued disaster declaration be in place. See Senate Bill 103 and House Bill 1408. You may recall that similar legislation was introduced last session but was never adopted. We will keep our readers posted on the bills as they move through this session.

Of course, individual members of public bodies can still attend meetings electronically under the provisions of 7(a)-(d) of the OMA, so long as the public body has adopted a policy authorizing remote attendance and the member meets the statutory eligibility requirements for attending the meeting electronically. 

Tuesday, February 14, 2023

No Taking Where Dam Removal Lowered Water Level Along Owner's Property

Property takings cases are pretty few and far between so land use professionals will be interested in today's case out of the Seventh Circuit Court of Appeals. Kreuziger v. Milwaukee County.

In the late 1930s, Milwaukee County built a dam on the Milwaukee River in an urban green space called Estabrook Park. In 2017, the County transferred the dam to the Milwaukee Metropolitan Sewerage District for the purpose of removing it. After the dam was removed, the water level immediately upstream fell by about 4 feet. A homeowner along the river sued the District and the County, claiming that the removal of the dam constituted a Fifth Amendment taking of his riparian right to the prior surface water level. The district court ruled in favor of the District and County, finding that the homeowner had no property right to the river remaining at its previous level.

On appeal, the Seventh Circuit upheld the ruling in favor of the District and County. The Court noted that in order to prevail on a federal takings claim, the homeowner had to show that the government had taken, either physically or by unduly onerous regulation, private property owned by the homeowner. Although the homeowner was a riparian owner (someone who owns land on a navigable waterway), those riparian rights are subordinate to and encumbered by the state's interest and authority to regulate and maintain its rivers and lakes for the benefit of the public (the public trust doctrine). As a result, the Court concluded that because the homeowner did not have a property right to a particular water level in the river, he could not have suffered an unconstitutional taking when the dam was removed.

Monday, February 13, 2023

Court Upholds Charge Against Owner For Removing Buckthorn on Neighbor's Property

A Village cited an individual for criminal damage to property, alleging the defendant violated the Village Code by knowingly hiring a landscaping company to enter onto her neighbor's property to remove buckthorn (an invasive tree species), which caused damage to her neighbor’s property. 

The trial court ruled in favor of the Village, finding it had demonstrated that (1) the defendant intentionally hired a landscaping company to remove buckthorn; (2) the buckthorn was on the neighbor’s property, and (3) the neighbor's property incurred damage because of the removal of the buckthorn. The court sentenced the defendant to six months’ supervision, $500 in fines, and 40 hours of community service. 

The defendant appealed and argued that the only property that was damaged was an invasive plant, and because the Village's own ordinance provides mitigation credit for the elimination of the invasive plant, she could not be guilty of destroying “an illegal substance.” The Appellate Court disagreed, concluding that the removed buckthorn was property of her neighbor and was not her property to destroy. Further, the Appellate Court found the defendant was properly notified of the charges against her, and rejected her argument that she could not be charged for actions taken by the landscaping company she hired. Village of Deerfield v. Merten.

Post Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Thursday, February 9, 2023

PAC Finds No Violation in FOIA Denial of Employee Survey Results

In 2022, a school received a FOIA request seeking certain employee survey results used in connection with preparing performance evaluations for staff members. The school denied the request citing FOIA section 7(1)(f), FOIA’s "deliberative process" exemption. After the requestor appealed the denial, the PAC issued binding PAC Op. 23-002, concluding that the school did not violate FOIA by denying the responsive survey results under FOIA exemption 7(1)(f).

Specifically, the PAC determined that the withheld employee survey responses reflected the anonymous opinions and recommendations of school employees which were used by the school as part of a specific pre-decisional and deliberative process to evaluate staff performances.

Although the requestor argued that the survey results were improperly withheld because the school failed to specifically state its intended use of the survey to evaluate staff performance, the PAC disagreed, stating that FOIA’s deliberative process exemption does not require a public body to provide advance notice of all possible uses of information it gathers before incorporating the information into its decision-making. Instead, FOIA exemption 7(1)(f) requires identifying what deliberative process is involved and the role the requested records played in the course of that process.

Here, the PAC determined that the school had sufficiently demonstrated that the disclosure of the employee survey results would be detrimental to the school’s deliberative process in evaluating staff performance and could discourage employees from providing candid opinions in the future on sensitive matters. As a result, the PAC determined that the records were properly withheld from disclosure pursuant to FOIA exemption 7(1)(f).

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, February 7, 2023

Court Interprets 60-Day Time Limitation For Filing OMA Lawsuits

Recently, an Illinois Appellate Court applied the 60-day time limitation for filing a lawsuit alleging a violation of the Open Meetings Act (OMA) to dismiss two of three claims made a City Council. Better Government Association v. Chicago City Council.

In mid-June 2020, an organization filed a lawsuit alleging that the City Council violated the OMA when it hosted three teleconferences (one each in March, April, and May 2020) without providing public notice or allowing the public to access the meeting. The City Council argued that (1) the teleconferences were not “meetings” under the OMA, (2) the claims regarding the March and April teleconferences were barred by the OMA’s 60-day statute of limitations, and (3) the third claim was “moot” because a recording of the May teleconference was later released to the public. The circuit court ruled in favor of the City, finding that the first two claims were time-barred and that the third claim was moot.

On appeal, the Appellate Court agreed that the claims relating to the March and April teleconferences were barred by the OMA, which provides that a lawsuit alleging a violation of the statute must be initiated “prior to or within 60 days of the meeting alleged to be in violation of the Act . . . .” The OMA provides exceptions to the 60-day statute of limitations where the allegedly improper meeting is not discovered in enough time to file a claim or there are procedural delays in the Attorney General’s review of an alleged violation. The Court held that no exception applied to extend the statute of limitations because the organization was aware of the March and April meetings prior to the expiration of the 60-day limitations period but the lawsuit was not filed until after that deadline.

With respect to the third claim relating to the May teleconference, the Court found that it was filed within the 60-day period. Furthermore, the Appellate Court reversed the circuit court, finding that the third claim was not moot simply because a recording of that teleconference was later released. According to the opinion, the “released” audio of that call was a leaked recording which had not been authorized for release by the City Council. The Court explained: 

That an audio recording has made its way into public domain does not substitute for the City releasing the official audio (or minutes), especially since audio recordings as well as minutes can be altered, portions erased, or mutilated.

The Appellate Court sent the case back to the circuit court to determine whether the City Council violated the OMA with respect to the May teleconference.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, January 31, 2023

Court Rejects Claims Against Village for Basement Flooding

The Seventh Circuit Court of Appeals recently upheld the dismissal of a lawsuit brought by homeowners who claimed their Village was liable for damages they incurred when their basements flooded. Billie v. Village of Channahon.

The residents (current owners of homes in a subdivision) contended that the Village violated the  Constitution when it approved their subdivision and issued building permits for their homes in the early 1990s. The district court dismissed their case, finding the residents did not state a valid cause of action. 

On appeal, the Seventh Circuit upheld the dismissal, holding that the Constitution does not "compel governmental intervention to assist persons in distress" nor does it "entitle private parties to accurate enforcement of local, state, or federal laws." The Court acknowledged that while there may be a private claim against the builders if they or the original owners concealed the flood risks, the Constitution does not require governments to prevent private citizens from making decisions. Finally, the Court rejected the residents' takings claims, finding that the Village did not take anyone's property, whether by physical invasion or by regulation. Instead, the Court noted that it was the DuPage River that invaded the residents' properties, and that "the Village did not create the rain, the river, or the floodplain." In sum, the Court held that the lawsuit was properly dismissed because it was not a proper cause of action against the Village.

Monday, January 30, 2023

Court Finds No Violation of FOIA in Inmate Case

In 2021, an inmate at a county jail filed a pro se complaint against a County Sheriff, seeking civil penalties and costs, after the Sheriff denied the inmate’s request that asked for the law enforcement records of another person. The Sheriff argued that the records were exempt because inmate was a prisoner who was requesting law enforcement records under the following FOIA provision: 

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.  5 ILCS 140/7(1)(e-10). 

The circuit court ruled in favor of the Sheriff, and the inmate appealed, arguing that (1) the Sheriff waived the right to assert the exemption because it did not cite the exemption in its initial FOIA denial, and (2) that the Sheriff was required to show that the requested records did not pertain to the inmate’s current or potential case.  

In Shehadeh v. Sangamon County Sheriff, the Appellate Court affirmed the circuit court’s ruling in favor of the Sheriff. 

First, the court held that the Sheriff did not waive FOIA exemption by failing to cite the exemption in its FOIA denial letter. 

Second, the court held that the Sheriff properly denied the request under section 7(1)(e-10). The court held that the Sheriff had no way of knowing whether the responsive records were relevant to the inmate’s small claims case, because the inmate (1) withheld the information about the existence of the small claims case at the time he filed his FOIA request; and (2) failed to share the relevance of the requested records to the inmate’s potential or current case or claim.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, January 25, 2023

Illinois Supreme Court Upholds Home Rule City's Administrative Penalty in Impoundment Ordinance

A number of individuals filed a lawsuit to challenge the City of Chicago's authority to adopt an ordinance imposing administrative penalties on the owners of impounded vehicles, claiming that section 11-208.7 of the Illinois Vehicle Code only authorizes fees for towing, storage, and other reasonable administrative costs.  

The circuit court dismissed the complaint, finding that section 11-208.7 of the Illinois Vehicle Code did not preempt home rule authority. The appellate court agreed, finding no limitation or preemption in the statute that would prohibit a home rule unit from charging an administrative penalty or fine when impounding vehicles.

The plaintiffs appealed to the Illinois Supreme Court, which upheld the dismissal of the case. Lintzeris v. the City of ChicagoThe Illinois Supreme Court agreed with the circuit and appellate courts that there is no express language of prohibition or exclusion in the Illinois Vehicle Code that would preclude a home rule municipality from imposing additional fees, including administrative penalties. The Court also held that the imposition of local administrative penalties would not circumvent the authorization of fees, create an obstacle to charging fees, or derail any state function. In short, the Court upheld the City's administrative penalty provision in its impoundment ordinance. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Monday, January 23, 2023

U.S. Supreme Court Will Hear Challenge to Local Government's Retention of Surplus in Tax Forfeiture Action

The U.S. Supreme Court will be considering an appeal that will be of interest to local governments. Tyler v. Hennepin County. In 2015, a Minnesota county seized a condominium unit to cover an unpaid tax debt of $15,000. The county then sold the condo for $40,000, which it retained after distributing some of the proceeds to other taxing bodies as required by state law. The condo unit sued, claiming that the county violated the Takings Clause and the Excessive Fines Clause of the U.S. Constitution by not returning the surplus (i.e., the difference between the tax debt amount and the sales price) to the condo owner. The Court of Appeals ruled in favor of the county, finding that the county's actions were authorized by a Minnesota statute that authorized the county to take absolute title, extinguishing the owner’s equity in exchange only for cancelling a smaller tax debt, code enforcement fine, or debt to government agencies. The condo owner appealed to the U.S. Supreme Court, which agreed to hear the case in the next term.

Thursday, January 19, 2023

Court Applies "Subsidiary Body" to Non-Profit Organization in FOIA Challenge

In 2018, a requestor submitted several FOIA requests to Aurora Downtown, a not-for-profit organization, seeking certain records relating to the 2017 election. After Aurora Downtown failed to respond to all of the requests, the requestor filed a lawsuit, claiming that Aurora Downtown violated FOIA by providing incomplete responses to the FOIA requests. Aurora Downtown responded that it was not a “public body” subject to FOIA, but was instead an “independent” body organized as a not-for-profit corporation.

FOIA section 2(a) defines a public body, in relevant part, as follows: 

Public body" means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing...”  (emphasis added)

The circuit court agreed with Aurora Downtown and dismissed the complaint, finding that Aurora Downtown was not a “subsidiary body” of a public body and so was not subject to respond to FOIA.

After the requestor appealed, the Appellate court in River Breeze,LLC v. Granholm overturned the circuit court’s dismissal and sent the case back for further proceedings, finding that the circuit court erred when it prematurely concluded that Aurora Downtown was not a “subsidiary body” subject to FOIA.

The Appellate Court noted that determining whether a private organization is a subsidiary public body under FOIA requires application of the Illinois Supreme Court’s four-factor “subsidiary body” test. In this case, the Appellate Court found that the requestor had alleged in his complaint enough facts in support of Aurora Downtown being a subsidiary body of the City of Aurora to survive a motion to dismiss. Specifically, the requestor alleged that Aurora Downtown was created by a City of Aurora ordinance, which identified Aurora Downtown as a City agency, and that Aurora Downtown operated as an advisory body to the City in implementing certain City projects. The Appellate Court rejected Aurora Downtown's argument that it had an independent legal identity as a duly organized not-for-profit corporation, finding that this fact alone cannot establish that Aurora Downtown is not a subsidiary public body under FOIA, and therefore, this fact could not justify the trial court’s dismissal of this allegation. The Appellate Court sent it back to the circuit court for further proceedings.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, January 17, 2023

PAC Issues Binding Opinion Regarding Failure to Respond to FOIA

The Attorney General's Public Access Counselor (PAC) has released its first binding opinion for 2023. In PAC Op. 23-001, the PAC found a school district in violation of FOIA for failing to respond to a FOIA request. The requester had asked for records relating to teaching staff levels, including emails with certain key words. The requester subsequently filed an appeal with the PAC claiming that although the school district acknowledged receipt of the request, it did not provide the requested documents or provide a response to the request. It will come as no surprise that the PAC determined that the district's failure to respond was a violation of FOIA.

As we have noted before, these type of binding opinions do little to provide guidance to public bodies on how to apply particular exemptions, interpret other provisions of FOIA, or address novel issues that public bodies may encounter in responding to FOIA requests. Of course, these opinions remind public bodies of their obligations under FOIA, but there is nothing new here that hasn't already been said in numerous other binding opinions. 

Friday, January 13, 2023

City's Foreclosure Action Stands Where Petition for Relief Filed too Late

In Rockford v. Gilles, an Illinois Appellate Court dismissed a lawsuit filed by a property owner that challenged a City’s foreclosure of the owner’s property finding that he did not file his petition to vacate that foreclosure judgment within the required two year period.

Over the course of 13 years, the City recorded 20 special assessment liens against two vacant lots owned by Gilles, totaling $11,465. The City then brought an action to foreclose on the property for failure to pay the liens. The City made three failed attempts to serve Gilles personally and the trial court granted the City’s motion to serve notice by publication. After Gilles failed to appear after notice was published, the trial court entered an order of default against Gilles, including a judgment of foreclosure and a sale of the property.

More than two years later, Gilles filed a petition with the court for relief from the foreclosure and sale of property. State statute provides a process for filing a petition to vacate a final order or judgment but the petition must be filed within two years of the judgment being entered. Gilles argued that he should be allowed additional time because he never received actual notice of the foreclosure proceeding (he had moved to Colorado). Gilles also argued that due to the extraordinary circumstances of his case (the pandemic, his wife’s ailing health), the court should provide him with relief even though the two year period for vacating the judgment had passed. The trial court ruled in his favor and vacated the prior orders, finding that his lack of diligence in defending the underlying lawsuit was the result of excusable mistake and not negligence since he did not know his property was in foreclosure. The City appealed.

The Appellate Court overruled the trial court’s decision, finding that relief from the two year filing period is appropriate only if the “defendant has actively misled the plaintiff or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights in the wrong forum.” The Appellate Court did not find those circumstances to exist in this case, and reversed the trial court’s ruling in favor of the property owner.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, January 11, 2023

Quorum Forum Podcast: Planning Law Cases of the Year

Ancel Glink's podcast, Quorum Forum, is out with a new episode called: Episode 68: Planning Law Cases of the Year.

In this episode, Ancel Glink’s David Silverman, Greg Jones, and Dan Bolin join the American Planning Association’s Planning Webcast Series to discuss some of their favorite planning law cases from 2022! 

What do you think the hottest legal issues in planning will be for 2023? Email us at podcast@ancelglink.com!

Tuesday, January 10, 2023

Bill Would Raise Tourism Revenues from Fee on Hotel Rates

There are a few bills that have been introduced in the recent Illinois General Assembly session that are worth watching, including a bill that would authorize hotel owners to petition local governments to create a tourism preservation and sustainability district by ordinance, after a public hearing process. If established, the district could impose a "transaction charge" in an amount equal to or less than 5% of the hotel room rate. The revenues would then be passed on to either a locally created and state-certified convention and visitors bureau or an existing nonprofit organized for tourism purposes. HB 268 (Senate Amendment 1) has passed the Illinois senate and has been sent to the Illinois house.

Monday, January 9, 2023

Seventh Circuit Upholds Digital Sign Ban Citing Recent Supreme Court Case

We have written a number of posts on Municipal Minute discussing the U.S. Supreme Court's rulings in cases challenging municipal sign codes under the First Amendment. In 2015, we reported on the Court's decision in Reed v. Gilbert that struck down the Town of Gilbert, Arizona's temporary sign regulations. The Reed case had subsequently been applied by a number of courts across the country in challenges to municipal sign regulations where sign companies and others made an argument that the challenged regulations treated signs differently based on content, even where a regulation appeared to target sign location (i.e., on-premises versus off-premises signage) rather than the content of the sign itself. 

In April of 2022, we reported on the U.S. Supreme Court's ruling in National Advertising of Austin v. Austin where the Court upheld a City of Austin, Texas ordinance that distinguished between on-premises and off-premises signs, finding that the locational regulation was more in the nature of a time, place, and manner restriction rather than a restriction on the content or message of the sign. The Court rejected the argument that if an official had to read the sign to determine whether it was on-premise or off-premise (i.e., a "need to read" regulation), then it was a content-based regulation, holding that this interpretation of Reed was too extreme. 

Just last week, the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois and nearby states), issued a ruling in a billboard challenge consistent with the Austin case, upholding a Madison, Wisconsin ordinance that that prohibited digital billboard signs. In Adams Outdoor Advertising LP v. City of Madison, Wisconsin, the Seventh Circuit rejected the billboard company's argument that Reed should control the outcome of the case. Instead, the Seventh Circuit relied on the more recent ruling in the Austin case to uphold Madison's ban on digital off-premises signs as a content-neutral "time, place, or manner" regulation, finding that the regulation targeted the location of the sign, and not the content or message. The Seventh Circuit also noted that Madison's stated government interests in promoting traffic safety and preserving visual aesthetics were significant government interests to support Madison's digital sign ban. In sum, the Seventh Circuit rejected the billboard company's challenge to Madison's digital off-premises sign ban.

Friday, January 6, 2023

Court Reverses Pension Board’s Calculation of Benefits

In June 2013, the former fire chief of a fire protection district (District), and the District entered into a three-year employment contract that included a 3% annual salary adjustment. In August 2015, the chief was placed on paid administrative leave, and the District and the chief entered into a retirement agreement stating that the chief would continue to be on paid administrative leave until his deferred retirement date of January 4, 2016. 

In October 2017, the chief (now 50 years old) submitted an application for a retirement pension. In his application, he listed his last day of work as January 4, 2016 (his deferred retirement date after paid administrative leave) and his annual pensionable salary as $186,449 (including the employment contract’s 3% annual salary adjustment).  The Board of Trustees for the District (Board) submitted paperwork indicating that the chief's final date of service was August 20, 2015 (prior to the paid administrative leave) and that his annual salary was $181,200 (not including the 3% adjustment not included).

In August 2018, the Public Pension Division of the Illinois Department of Insurance (Department) provided an advisory opinion regarding the chief's pension calculation  pursuant to 40 ILCS 5/1A-106.  The Department opined that section 4-108(a) the Pension Code bars unpaid leave exceeding 30 days from being included in creditable service. Since the statute does not address how to treat paid leave, the Department found it would “be reasonable that a paid leave of absence would count toward creditable service.” However, the Department concluded that the chief was not a “firefighter” during his paid administrative leave, meaning that the retirement agreement voided the chief's earlier employment contract, including the provision regarding the 3% annual salary adjustment.  As a result, the Department concluded that the chief's pension should be calculated based on his salary on August 21, 2015. 

In May 2019, the Board entered a written decision relying on the Department’s advisory opinion and awarded pension benefits without the 3% salary increase or taking into account any creditable service for the period of paid leave. The chief filed a complaint for administrative review, and the circuit court upheld the Board’s decision.

On appeal, the Appellate Court reversed the Board’s decision and ruled in favor of the chief. Brucki v. Orland Fire Protection DistrictThe Appellate Court first noted that the Department’s advisory opinion was of limited value, and was not binding on the court. Next, the Court determined that the Department’s interpretation of “firefighter” was too restrictive and contrary to the principle that the provisions governing firefighter's pensions must be liberally constructed in favor of the applicant.  In addition, the Court held that the 2015 retirement agreement did not negate the 2013 employment contract because the chief's final paycheck (dated January 11, 2016) included the 3% adjustment, and the final payments to the chief for unused sick and vacation days was calculated based on the 3% adjustment. 

The Appellate Court concluded that a mistake had been made in the pension calculation and instructed the Board to award pension benefits to the chief based on a final date of service of January 4, 2016 and an annual salary amount that includes the 3% adjustment. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink

Thursday, January 5, 2023

Court Finds that Pension Code Does Not Require In Person Medical Examinations

In July 2020, a firefighter applied for an occupational disease pension, claiming that a stroke prevented him from performing normal work activity. The Pension Board selected three physicians to submit written medical opinions based upon the firefighter's medical records. The Pension Board conducted a hearing on the pension application and awarded an occupational disease disability pension to the firefighter. that Melton was disabled for service as a firefighter.  

The City appealed the Pension Board's award, arguing that the Pension Board's decision should be reversed on several bases, including that the three physicians selected by the Pension Board were required to have examined the firefighter in person as opposed to having provided opinions based solely on the applicant's medical records.  Section 4-112 of the Pension Code states, in part:

A disability pension shall not be paid until disability has been established by the board of examinations of the firefighter at pension fund expense by 3 physicians selected by the board and such other evidence as the board deems necessary.” 40 ILCS 5/4-112. 

The City argued that the selected physicians performed “only half their duties,” where they issued reports without first conducting in-person examinations. The Pension Board responded that conducting further in-person exams would only needlessly increase the cost of the hearing and delay its resolution. The trial court upheld the Pension Board's decision finding nothing in section 4-112 that precluded the physicians from reaching their opinions based on the firefighter’s medical records alone. 

The Appellate Court upheld the Pension Board's award in City of East Peoria v. Melton, holding that the plain language of Section 4-112 of the Pension Code does not require that the examination of the firefighter be in-person or that the applicant be subject to a physical examination, and the Court refused to read any such requirement into the statute. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink

Wednesday, January 4, 2023

Court Finds Tax Map Files Exempt from FOIA

In 2021, a commercial requestor submitted a FOIA request to a County seeking a copy of the most recent county tax map file maintained by the County in accordance with section 9-35 of the Property Tax Code for all parcels in the County. The County denied the FOIA request citing exemption 7(1)(i), which exempts, in relevant part, the following: 

[v]aluable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. 

In its denial letter, the County stated that because the requested tax maps constituted computer geographic systems data that, if disclosed, could reasonably be expected to result in private gain or public loss. 

The requestor then filed a lawsuit against the County alleging that it violated FOIA when it denied the request. The trial court ruled in favor of the County, finding that (1) the requested tax maps were stored in a "shapefile format" that qualified under FOIA exemption 7(1)(i) and (2) the County’s previous voluntary disclosure of the requested records did not waive the County’s ability to invoke exemption 7(1)(i). 

On appeal, the Appellate Court upheld the trial court's ruling in favor of the County in Hurlbert v. Edmonds. The Appellate Court determined that because the county tax maps were part of a computerized geographic system and disclosure of these records was reasonably expected to produce a private gain to the requestor, the County properly denied release of the records under FOIA exemption 7(1)(i). 

The Appellate Court also rejected the requestor’s argument that the County waived the ability to assert the exemption because it had previously produced the GIS data in various formats to the requestor and others, The court noted that individuals had obtained the data previously pursuant to a licensing agreement with the County that required payment of a fee and prohibited the reproduction or redistribution of the data. The court determined that with payment of a user fee, no private gain or public loss would result from disclosure of GIS data under a licensing agreement, which the Court distinguished from disclosure pursuant to a FOIA request.

Post Authored by Eugene Bolotnikov, Ancel Glink