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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

Thursday, September 14, 2023

Board Violated OMA in Restricting Content of Public Comment

In a recent binding PAC Opinion, the PAC found a public body in violation of the Open Meetings Act (OMA) for restricting the content of public comment. PAC Op. 23-013

A member of the public submitted a request for review to the PAC claiming that a school board violated the OMA when the board president interrupted her during public comment when she referred to a hiring policy and informed her that she could not discuss personnel issues at a public board meeting. 

The PAC concluded the school board violated section 2.06(g) of the OMA by imposing a restriction on public comment that was not authorized by the board's "established and recorded" public comment rules. Although the school board had adopted public comment rules, those rules did not restrict public comment on personnel matters. The board responded that its restriction on discussing personnel issues was authorized by language on the board's annotated board meeting agenda stating that the school board requests that any matters concerning personnel or students be privately communicated to the board. However, the PAC rejected the board's argument, finding that there was no evidence that the board had communicated this restriction to the public. 

Although the PAC did not make a formal determination on whether the board could establish this type of restriction on public comment since its opinion was based on the requirement in section 2.06(g) that public comment rules be "established and recorded," the PAC did state that this type of restriction might constitute an impermissible content-based restriction on the speaker’s First Amendment rights. As we have noted on Municipal Minute before, the PAC has weighed in on constitutional issues in the past when deciding requests for review although the First Amendment was not the basis for this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, September 12, 2023

Public Body Did Not Act in Bad Faith in FOIA Response

An Illinois Appellate Court determined that a public body did not act in bad faith when it denied a request for postmortem photographs even though the trial court ordered the public body to release the records. Thomas v. County of Cook, 2023 IL App (1st) 211656-U

While Thomas was serving 75 years in prison for a murder conviction, he filed a FOIA request with the County requesting all postmortem photographs, autopsy photographs, and x-rays of the decedent. The County withheld 35 of the 38 requested records, explaining that the release would constitute an "unwarranted invasion of personal privacy" and the records were exempt from release under section 7(1)(c) of FOIA. The County cited to binding PAC Opinion 10-003 in support of its denial.

Thomas sued the County, claiming its refusal to release the photographs was willful and in bad faith and violated FOIA. The trial court ruled in favor of Thomas, in part, and ordered the County to release the 38 autopsy photographs; however, the court rejected Thomas' argument that the County's denial was in bad faith. Thomas appealed the court's ruling that the County did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith. 

The appellate court agreed with the trial court that the County's denial of the request was not in bad faith because the County had relied on a binding PAC opinion that had determined that family members of the decedents have a privacy interest in keeping postmortem photographs from being released to the public. 

The appellate court did not address the trial court's substantive ruling that the photographs requested by Thomas were releasable nor did the appellate court distinguish the PAC Opinion that protected those records from release, likely because the County did not appear to appeal the substantive ruling. It is possible the trial and appellate courts may have weighed the interest of Thomas (who was serving time for the murder of the decedent) in receiving the photographs in this case as more significant than the interest of the reporter in the PAC opinion cited by the County. 

When relying on the "invasion of personal privacy" exemption of 7(1)(c) of FOIA, public bodies should make sure they balance the interests of the requester in the release of requested records against the privacy interests at stake. 

Monday, September 11, 2023

Quorum Forum Podcast Ep. 75 - APA-CMS Bar Exam 2023

Ancel Glink's Quorum Forum Podcast just released a new episode: Quorum Forum Ep. 75 - APA-CMS Bar Exam 2023. In this episode (recorded live at the Haymarket Pub and Brewery), Ancel Glink attorneys discuss the most important planning law cases of the year in a simulated law school experience format targeted to planners and land use professionals. 

Wednesday, September 6, 2023

PAC Binding Opinions and Indexes of OMA/FOIA Opinions

The last two binding opinions issued by the Public Access Counselor (PAC Op. 23-011 and 23-012) didn't provide public bodies with any guidance on compliance with FOIA or OMA, except to reiterate that public bodies are required to respond to FOIA requests, so we didn't see a reason to summarize those opinions.

However, we did want to remind our readers of two great resources for FOIA and OMA guidance that public bodies may find helpful. The PAC has posted on its website an index of binding OMA opinions and FOIA opinions. These indexes categorize the various binding opinions over the past 13 years and it looks like they have been regularly updated. 

So, if you are looking for guidance on public comment at meetings, or topics that can be discussed in closed session, or FOIA exemptions or fees, or any other topic addressed by the PAC in one of its binding opinions, these indexes could be a great starting point.

Thursday, August 31, 2023

PAC Finds OMA Violation Where Committee Members Discussed Committee Business Outside Proper Meeting

In another advisory PAC opinion shared by a reader, the PAC reviewed a complaint that two committees of a public body violated the OMA where committee members discussed public business outside of a properly noticed meeting. 2023 PAC 75602.

The PAC found one committee in violation of the OMA while finding the other committee did not violate the OMA. Although the topic of discussion between the respective committee members was the same, the reason for the distinction was the nature of the respective committee's jurisdiction. In one case, the PAC determined that the committee's jurisdiction included the topics discussed by the members so a majority of a quorum of that committee discussing that topic outside of a properly noticed meeting violated the OMA. With respect to the other committee, however, the PAC determined that this committee's jurisdiction had nothing to do with the topic discussed by the committee members, so their discussion outside of a meeting did not trigger the OMA.

This is a good reminder to members of public bodies to be careful not to discuss with a majority of a quorum of their public body any topics related to the business of the public body of which they are a member outside of a properly noticed meeting.

Wednesday, August 30, 2023

PAC Finds No Violation of OMA for Meeting Notice and Location

Thanks again to a Municipal Minute reader for forwarding today's PAC advisory opinion which provides more guidance on notice posting requirements under the OMA.

In this advisory opinion, the PAC addressed a complaint that an advisory body of a city (a TIF joint review board or JRB) did not comply with the OMA. The complainant argued that the advisory body violated the OMA for several reasons, including that it did not post the notice of the JRB on the city's website, did not properly post its notice, and that its meeting should have been held at city hall rather than a city-owned museum. 2023 PAC 76681.

First, the PAC noted that the OMA only requires website posting of meetings of the governing body (in this case, the city council), and not other public bodies of the city. This issue was also discussed in yesterday's blog post.

Second, the PAC accepted the city's affidavit of city staff that the meeting notice was posted both at city hall and at the museum where the meeting was held as sufficient evidence that the meeting notice was properly posted absent any counter evidence by the complainant.

Third, the PAC found no violation in the JRB holding its meeting at a city-owned museum, noting that the OMA requires open and convenient meetings but does not mandate that meetings take place at the same location. Here, the notice specified the location of the meeting and there was no indication that the meeting location was either remote or inconvenient to deter the public from attending. The PAC also noted that the city stated that the location was chosen because of construction work on conference rooms at city hall.

Finally, the PAC rejected the complainant's argument that the JRB violated the OMA by not posting its minutes on the city's website, noting that the OMA only requires the "governing body" to post its minutes on the city's website and that, in any event, the JRB had not yet approved those meeting minutes.

Note that the complainant had also argued that the meeting time (1:30 pm on a workday) was inconvenient under the OMA. The PAC did not make a determination on this issue because it was later withdrawn by the complainant but did note that a public body conducting a meeting during regular business hours does not violate the OMA.

Tuesday, August 29, 2023

PAC Finds OMA Violation Where Public Could Not View Meeting Notice From Outside Building

As we have said before, the PAC issues some of its more interesting opinions in a non-binding, advisory form - those opinions often provide public bodies with guidance on the day-to-day issues they confront in complying with FOIA and OMA. Thanks to a Municipal Minute reader, we are reporting on one of those opinions today. 

In a recent advisory opinion, the PAC determined that a committee of a public body did not violate the OMA when it failed to post a meeting notice on the public body's website but that the committee did violate OMA when it failed to ensure that its posted meeting notice was "continuously available" for 48 hours in advance of the committee meeting. 2023 PAC 75604

The PAC acknowledged that the OMA only requires the "governing body" of the public body to post meeting notices on its website, and the website posting requirement does not extend to meeting notices of subsidiary bodies of the public body, such as committees (see section 2.02(b) of the OMA, emphasis added):

In addition, a public body that has a website that the full-time staff of the public body maintains shall post notice on its website of all meetings of the governing body of the public body.

However, the PAC found that the committee's posted meeting notice did not meet the OMA requirements. Although the notice was posted at least 48 hours in advance on a scrolling screen in the main hallway of the public body's building, that building was not open to the public the entire 48 hour period, so the notice was not continuously available to the public in violation of the OMA. Interestingly, the PAC also questioned whether a "scrolling" screen would satisfy the OMA's "continuously available" requirement since the meeting notice would not be viewable at all times while the screen scrolled through other electronic materials, although the PAC did not decide the request for review on that issue and instead encouraged the public body to post a paper copy of its meeting notices in a location where the public can view the notice from the outside of the building at any time during the 48 hours prior to a meeting.

This is a good reminder to make sure that a public body's meeting notices can be viewed by the public from outside the building if that building is closed at any time during the 48 hour period prior to a meeting. Also, although the website posting requirement for meeting notices only applies to "governing bodies," it's good practice to post the meeting notices of subsidiary bodies on the public body's website as well because that practice can offer some protection to a public body if the posted meeting notice is somehow not "continuously available" for the 48 hour period, pursuant to the following provision in section 2.02(c) of the OMA (emphasis added):

The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. Posting of the notice and agenda on a website that is maintained by the public body satisfies the requirement for continuous posting under this subsection (c)

Tuesday, August 22, 2023

FOIA Amended for Records Maintained by HIPAA Covered Entities

The General Assembly recently enacted amendments to the Freedom of Information Act (FOIA) that become effective on January 1, 2024 and will apply to public bodies that are also "covered entities" under HIPAA. P.A. 103-554.

First, the Act amends the definition of "private information" in FOIA to clarify that this exemption applies to electronic medical records and all information (including demographic information) that is contained within or extracted from an electronic medical records system operated or maintained by a public body that is also a "covered entity" under HIPAA.

Second, the Act adds a new exemption 7(1)(pp) that exempts from disclosure protected health information (PHI) that is maintained by a HIPAA covered entity.

Wednesday, August 16, 2023

Illinois Supreme Court Upholds the Protect Illinois Communities Act

On August 11, 2023, the Illinois Supreme Court upheld the Protect Illinois Communities Act, an Illinois law that took effect on January 1, 2023, which prohibits the sale, manufacture, delivery, and import of assault weapons and large capacity magazines. The Act does contain exemptions for (1) trained professionals, such as law enforcement, correction, military, and privacy security and (2) "grandfathered" individuals who possessed assault weapons or large capacity magazines before the law took effect. Caulkins v. Pritzker, 2023 IL 129453.

A group of licensed pawn brokers, Illinois residents, and an association whose members possess valid Firearm Owner Identification cards challenged the new law in court, claiming it violated their equal protection rights and constituted special legislation. In March of 2023, a circuit court ruled in their favor, holding that the right to bear arms under the state and federal constitutions were fundamental rights, and that the law (1) denied plaintiffs equal protection by infringing on their gun rights, and (2) constituted special litigation by providing an arbitrary right to the exempt individuals while excluding plaintiffs. 

The case made its way to the Illinois Supreme Court on a direct appeal from the circuit court. The Illinois Supreme Court reversed the circuit court decision. First, the Supreme Court concluded that the law does not deny equal protection nor does it constitute special legislation because plaintiffs did not sufficiently allege that they are similarly situated to and treated different from the exempt classes. The Supreme Court noted that the law balances public safety against the expertise of the trained professionals and the expectation interests of the grandfathered individuals. Second, the Illinois Supreme Court found that the plaintiffs had waived any Second Amendment challenge to the law because their complaint failed to include a challenge under that provision of the U.S. Constitution.

Note that this new law does not change the legal landscape regarding municipal regulation of assault rifles, which we discussed in 2015 when we reported that Illinois preempted municipalities from enacting their own assault rifle bans. 

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

Monday, August 14, 2023

Court Rules in Favor of Municipality in FOIA Case Involving Records Not Kept by Municipality

The Appellate Court recently ruled in favor of a public body in a FOIA case that involved records and data that the public body did not maintain or keep. Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation.

The Coalition filed a FOIA request with the City seeking a number of records, including third-party hauler reports submitted to the City as required by a City ordinance and residual rate and contamination data regarding non-recyclable materials collected from receptacles. The City provided the Coalition with copies of third party hauler reports, as well as other data submitted by third party haulers relating to rate and contamination data. The Coalition filed a lawsuit claiming that the City violated FOIA by not turning over all third-party hauler reports and by not providing rate and contamination data relating to City services. The City argued that it had searched its records and did not have reports from all of its third party haulers (some of the third party haulers had not submitted reports to the City as required by the Ordinance) and that it did not create, keep, or maintain rate and contamination data for services provided directly by City employees. The circuit court ultimately ruled in the City's favor, and the Coalition appealed.

On appeal, the Appellate Court upheld the ruling in favor of the City, finding no violation of FOIA. 

First, the Court held that the City was only obligated to turn over records it actually had in its possession, and that it had no obligation to reach out to the third-party haulers to have them create reports to submit to the City. Although the Court acknowledged that the City's ordinance required the haulers to file these reports, FOIA was not the mechanism to enforce that ordinance nor did the City's ordinance provide a basis for defining a public body's obligations under FOIA. The Court concluded that since "FOIA does not obligate a public body to create a new record, it also does not obligate a public body to compel a nonpublic, third-party entity to create and submit a record, even if the submission of such record is mandated by law."

As to the residual rate and contamination data, the Court acknowledged that the City had submitted an affidavit of a City official certifying that the City does not create, maintain, or keep this data where services are provided by City employees rather than third-party haulers. As a result, the Court found no violation of FOIA in the City's denial of this data, holding that "an agency cannot improperly withhold records that it does not maintain."

Thursday, August 10, 2023

New Law Authorizes Use of Design-Build Contracts for Municipalities and Schools

The Illinois General Assembly recently enacted P.A. 103-491 (SB 1570) authorizing municipalities and school districts to enter into design-build contracts. This authority builds on the statutory authorization to choose the design-build delivery method that was previously given to the Chicago Park District, and then to all Park Districts formed under the Illinois Park Code, and has now been extended to municipalities through the Illinois Municipal Code and school districts through the the Illinois School Code. 

Non-home rule municipalities and school districts – like all units of non-home rule local government – are subject to the provisions of the Local Government Professional Services Selection Act which requires the unit of government to undertake a "quality-based" selection process for contracting with design professionals (e.g., architects and engineers) and which severely limits the ability to select a design professional on the basis of the design professional’s fee. In addition, other state laws mandate that certain public works contracts be competitively bid. Based on these current laws, non home rule municipalities and school districts have to follow a more traditional design-bid-build delivery method that involves the use of separate contracts - one with a design professional and one with a general contractor (or multiple contractors and a construction manager). 

With the enactment of this new law, municipalities and schools now have the option to choose the design-build delivery method. The new law establishes a two-phase selection process that includes development of the scope and performance criteria for design-build contracts, a procedure for selection of contracts, requirements for submission of proposals, procedures for awarding contracts, and requirements of reports and evaluation of contracts (and a shorter process if the total overall cost of a project is estimated to be less than $12,000,000). 

Post Authored by Derke Price, Ancel Glink

Wednesday, August 9, 2023

New Law Gives Non-Home Rule Municipalities Authority to Adopt Administrative Adjudication System

The General Assembly recently enacted Public Act 103-0260 to expand the authority of non-home rule municipalities to adopt administrative adjudication hearing systems. In the past, this power was reserved to home rule municipalities. Administrative hearing systems can be a cost effective and efficient method for municipalities to pursue local ordinance and code violations. There are a few violations that cannot be adjudicated through a local administrative hearing system such as moving vehicle offenses under the Illinois Vehicle Code, among others.

In order to operate a local administrative hearing system, a municipality must first adopt an ordinance establishing the system and outlining the municipal code violations that will be adjudicated through the system. The ordinance establishing the adjudication system must include due process provisions providing for advance notice and the opportunity for a hearing. Parties must be provided notice of a violation in a manner reasonably calculated to give them actual notice, including, as appropriate, personal service, service by mail, or service by posting on the property where the violation is found. The notice of violation must describe the nature of the alleged code violation, the date of the hearing, penalties for failure to appear at the hearing, and the jurisdiction under which the hearing will be held. The party may be represented by an attorney at the hearing and has the ability to present witnesses and cross-examine opposing witnesses. Adjudication hearings are presided over by a hearing officer appointed by the municipality who is an Illinois state licensed attorney who has practiced for at least three years and who has completed a formal training on rules of procedure and the subject area of the ordinance violations that will be adjudicated. 

Adopting an administrative hearing system under this Act does not prevent a municipality from using other methods of enforcement.

This Act takes effect on January 1, 2024.

Post Authored by Megan Mack, Ancel Glink

Tuesday, August 8, 2023

Amendments to Affordable Housing and Appeal Act Enacted

P.A. 103-478 (SB 1476) was enacted last week to amend certain provisions of the Affordable Housing and Appeal Act, as follows:

First, the Act modifies provisions regarding the content of required affordable housing plans to require plans to also include a description of the following:

  • A consideration of affordable housing for both owner-occupied dwelling units and dwelling units for rent as part of the identification of land most appropriate for the construction of affordable housing;
  • housing market conditions;
  • infrastructure limitations; 
  • local government ordinances (including zoning or other land use ordinances), policies, or practices that do not affirmatively further fair housing;
  • any other local factors that constrain the local government's ability to create and preserve affordable housing.
The plan must also include a plan or potential strategies to eliminate or mitigate any identified local constraints to affordable housing.

The Act also requires plans to include proposed timelines within the first 24 months after the plan is adopted for actions to implement the plan. 

The Act requires non-exempt local governments to submit a report within 4 years after adopting or updating a plan to IHDA summarizing actions the local government has taken to implement its affordable housing plan.

Second, the Act modifies provisions relating to developer appeals to the State Housing Appeals Board, expanding the parties that can file an appeal to include not only the affordable housing developer, but also persons who would be eligible to reside in the proposed development and housing organizations

Third, the Act modifies the make-up of the State Housing Appeals Board.

Wednesday, August 2, 2023

New Laws Amend Illinois Prevailing Wage Act

There were a number of changes to the Illinois Prevailing Wage Act this session affecting government contracting that local governments should be aware of. We've summarized some of these amendments below, which will take effect on January 1, 2024, except for PA 103-188 which became effective June 30, 2023:

PA 103-48 (HB 3491) - This amendment to the Prevailing Wage Act provides a right of action  to workers employed by a contractor or subcontractor who is paid less than the prevailing wage rates for the work performed on a project covered by the Act.

PA 103-188 (HB 3351) - This law extends the Prevailing Wage Act requirements to projects that are undertaken pursuant to an incentive program or initiative described in the Illinois Power Agency Renewable Energy Resources Fund and Illinois Solar for All Program, except for residential buildings or houses of worship. Effective June 30, 2023

PA 103-327 (HB 2845) - This new law amends the Prevailing Wage Act to add the removal, hauling, transportation, and disposal of biosolids, lime sludge, and lime residue from a water treatment plant or facility.

PA 103-346 (HB 3370) - This new law amends the Prevailing Wage Act to add power washing to remove paint or other coatings, oils or grease, corrosion, or debris from a surface, or to prepare a surface for a coating to the Act.

PA 103-347 (HB 3400) - This new law amends the Prevailing Wage Act to add new reporting requirements that include reporting demographic information of workers on public work projects, to include gender, race, and ethnicity broken down by the following categories: (1) type of trade; (2) whether the worker is a journey worker or apprentice; and (3) total work hours performed.

PA 103-359 (HB 3792) - This new law amends the Prevailing Wage Act to add projects involving fixtures or permanent attachments to light poles owned by a public body with an exception for work performed by employees of the public body.

Tuesday, August 1, 2023

Act Expands Reasons for Remote Attendance by Member of Public Body

The Governor recently approved P.A. 103-311 that amends the Illinois Open Meetings Act to expand the permissible reasons for a member of a public body to attend a meeting electronically. 

Section 7 of the OMA currently authorizes a member of a public body to attend a meeting electronically if the public body has adopted a policy to authorize electronic attendance and the member's reason for attending electronically meets the statutory qualifications. Prior to this amendment, a member could attend electronically (if approved by the public body) if he or she was absent due to (1) personal illness or disability; (2) employment purposes or the business of the public body; or (3) a family or other emergency. With this recent OMA amendment, Section 7 of the OMA also authorizes a member of a public body to attend remotely if the absence is due to an "unexpected childcare obligation."

Monday, July 31, 2023

Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

A former police officer brought a lawsuit against the Police Chief alleging that his First Amendment rights were violated. The officer had raised concerns about the Chief's actions at a fire and police commission meeting and claimed that the Chief harassed and retaliated against him because of his protected speech. The district court dismissed the lawsuit, finding that the officer's criticism of the Chief was not First Amendment protected speech because he made those remarks in his role as a public employee and not a private citizen. The Seventh Circuit Court of Appeals agreed with the district court, holding that a First Amendment retaliation claim requires a showing that the challenged speech was constitutionally protected, which the officer could not demonstrate in this case because the officer's criticism of the Chief was made as a public employee and not actionable under the First Amendment. Fehlman v. Mankowski.

Thursday, July 27, 2023

Court Rules in Favor of School District in Impact Fee Dispute with Builder

Like many other municipalities, the City of Sycamore has enacted an impact fee ordinance that requires subdividers and developers to pay a fee in lieu of school sites to be transmitted to the school districts. The school impact fee is imposed on new residential dwelling units and the amount of the fee is based on the number of bedrooms of the proposed dwelling unit. The school impact fees imposed by the City for single family dwelling units were $817 for a two-bedroom home; $3,269 for a three-bedroom home; $5,560 for a four-bedroom home; and $4,310 for a five-bedroom home.

A school district filed suit against a home builder alleging that the builder had misrepresented in its building permit applications the number of bedrooms for some of the residential dwellings in order to pay a lesser school impact fee, depriving the district of at least $66,649 in impact fees. The school district presented testimony that the builder had submitted building plans for a certain number of bedrooms but later added closets to rooms described as dens or offices to create additional bedrooms without paying the additional impact fee attributable to the modified home. 

The builder argued that some of the homes had been modified after permits had been issued but that the City (as collector of the impact fees) did not have a process in place to require the builder to supplement the impact fees. The builder also argued that the school district was applying the wrong definition of "bedroom," which the builder argued required an egress window, smoke detector, and a carbon monoxide detector to qualify as a bedroom, as required by the City's building codes.

The trial court ruled in favor of the school district on its argument that the developer was required to pay impact fees for bedrooms that were "designed and ultimately used principally or primarily for sleeping purposes," applying the definition of bedroom contained in the City's Unified Development Ordinance. The court also rejected the builder's argument that the school improperly deposited the school impact fees. Board of Ed. of Sycamore v. Silverthorne Dev't

The builder appealed and the Appellate Court upheld the ruling in favor of the school district. First, the Court held that the proper definition of bedroom is the one contained in the City's UDO, which is where the impact fee regulations were contained. The UDO focuses on the residential uses and the need for adequate school facilities rather than the building code which focuses on building safety. Applying the UDO definition of bedroom, the Court held that the testimony and evidence supported the school district's argument that the rooms at issue (described in the building permit application as a den/office with a closet added later) were designed to be used principally or primarily for sleeping purposes. The Court also upheld the trial court's ruling that the school district did not improperly deposit impact fees into the wrong fund, determining that the state statute authorizing impact fees does not require school impact fees to be deposited into a special fund, just that the fees only be used for proper purposes as set out in the statute. In sum, the Court upheld the ruling in favor of the school district.

Wednesday, July 26, 2023

Appellate Court Upholds Finding that Disputed Road was a Public Road

An Appellate Court recently resolved a dispute as to whether a roadway was a private driveway (as claimed by the owner of property on both sides of the road) or a public roadway (as claimed by the county and an intervening party who argued the road provided access to other property, upholding the trial court's ruling that the roadway was a public road. Hicks v. Pope County Board

After the county informed the plaintiffs that they had to remove certain obstructions from the roadway, the plaintiffs filed suit to ask the trial court to declare the roadway as a private driveway. The county presented evidence to support its argument that it was a public road, including the county plat book, topographical maps, traffic maps, highway maps, and various other records to support its argument that the road was, in fact, public. The county also presented witnesses who testified that they had used the road for decades until the plaintiffs obstructed it. The plaintiffs testified that they had maintained the road since they moved to the property and had improved it from a dirt road to a gravel road at their expense. The trial court held that the evidence supported the county's argument that the road was public prior to the plaintiffs moving to their property and ruled in favor of the county. The plaintiffs appealed and the Appellate Court upheld the ruling in favor of the county that the road was public.

Tuesday, July 25, 2023

7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

The Seventh Circuit Court of Appeals recently upheld the dismissal of a lawsuit filed by a candidate for a States Attorney office against various public officials claiming that their actions violated his civil rights. Reardon v. Danley et al.

Reardon ran for States Attorney in Coles County against the incumbent, one of the defendants. After he lost the election, he filed a lawsuit that included the following claims: (1) seeking an injunction against the release of certain Facebook account information that was the subject of a subpoena issued by the Mattoon Police Department, which subpoena had been upheld by a circuit court judge; (2) that a county board member violated his First Amendment rights by removing one of his campaign signs from a resident's lawn a few weeks before the election; and (3) that the Police Chief and City violated his First Amendment rights when the Chief endorsed his opponent on the City's Facebook page.

The Court of Appeals rejected all of Reardon's claims and upheld the district court's dismissal of his case. First, the Court held that injunctive relief was not an appropriate civil rights remedy to stop the release of the subpoenaed records. Second, the Court held that Reardon failed to demonstrate how the county board member was acting under any authority of the county or in furtherance of his county board member role when he removed the campaign sign. Finally, the Court held that Reardon failed to show how the Chief's Facebook post violated any of his constitutional rights. 

Monday, July 24, 2023

Appellate Court Upholds $1.7 Million in Fines for Violations of Municipal Codes

An Illinois Appellate Court recently upheld a municipality's imposition of fines against property owners for certain ordinance violations relating to six accessory structures on the owners' property, including a tree house, shed, dog house/chicken coop, gazebo, detached garage, and covered patio. The municipality brought an ordinance enforcement action against he owners for failure to obtain permits for the structures, violations of building and electrical codes, setback encroachments, height violations, and the illegal keeping of chickens on the property. The trial court found in favor of the municipality and imposed fines of $100/day the violations had continued on the property ($100 was the minimum fine in the municipal code) for 20 continuing code violations on the property in the total amount of $1,766,000. 

The owners appealed, claiming the fines were excessive in violation of the Eighth Amendment to the U.S. Constitution and that the evidence presented by the municipality was insufficient to support the fines. On appeal, the Appellate Court rejected the owners' excessive fines claim. The Court acknowledged that the fine was large but noted that it was calculated based on 20 separate code violations which remained unabated for a lengthy period of time (from 2018 to 2021). Second, the Court determined that the evidence presented before the multiple hearings conducted by the trial court sufficiently demonstrated the owners' continuing violations of municipal codes up to November 4, 2021, although the Court did reduce the fine for the period of November 4, 2021 to December 30, 2021. In sum, the Appellate Court upheld the $1,766,000 fine that was imposed by the trial court, but reduced the fine by $5,600. City of South Beloit v. Casique, et al.

Thursday, July 20, 2023

PAC Upholds Denial of Police Reports Involving Both Juvenile and Adult Arrests

The PAC issued its tenth binding opinion for 2023 finding a public body did not violate FOIA in withholding arrest report in its entirety that involved a minor arrestee even though the report also included information about an adult arrestee. PAC Op. 23-010

The public body had denied a FOIA request filed by a reporter for certain police records and withhold the reports in their entirety, citing the Juvenile Court Record Act which protects the confidentiality of minors who have been arrested. The requester filed a request for review with the PAC, arguing that the police report should have been released with redactions since the report also involved an adult arrestee who was not protected under the JCRA. 

The PAC reviewed the JCRA and found that it protected the police reports from release because they constituted "juvenile law enforcement records" under the JCRA since they concerned the investigation of multiple minors and charges against one of the minors. The PAC stated that the JCRA "does not permit disclosure of any portion of the report to an unauthorized party, regardless of the extent to which a portion of the report focuses on an adult arrestee." The PAC also noted that the public body had released other information about the adult arrestee, including the arrest information sheet, arrest card, and mugshot report. 

Wednesday, July 19, 2023

Illinois Supreme Court Rules on Constitutionality of Challenged Provisions of the SAFE-T Act

We previously reported on the SAFE-T Act that modified Illinois state statutes in a number of ways, including provisions regarding cash bail and pretrial release. The Safety, Accountability, Fairness, and Equity Today Act (Act) was enacted by P.A. 101-652, as amended by P.A. 102-1104. As many of you may recall, the constitutionality of the Act was challenged in a Kankakee County circuit court and last December, the circuit court held that certain provisions of the Act violated the Illinois Constitution's bail clause, the crime victims clause, and the separation of powers clause. The State appealed the circuit court's order, and the Illinois Supreme Court issued a ruling today reversing that order, vacating the circuit court's stay effective September 18, 2023, and directing circuit courts to conduct hearings consistent with the Act and Illinois Supreme Court rules implementing the new pretrial release provisions of the Act. 

The Illinois Supreme Court's rationale for reversing the circuit court's order is set out in its opinion, but the crux of the ruling is the Court's rejection of the argument that the Illinois Constitution mandates that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. The Court emphasized that the Illinois Constitution creates a balance between the individual rights of defendants and individual rights of crime victims, holding that the Act's pretrial release provisions include procedures that balance those rights. Rowe v. Raoul, 2023 IL 129248.

Tuesday, July 18, 2023

Court Upholds Denial of PSEBA Benefits to Firefighter

After a firefighter/paramedic was granted an on-duty disability pension for a back injury, he applied for benefits under the Public Safety Employee Benefits Act (PSEBA), which provides health insurance benefits for police officers and firefighters who are catastrophically injured in the line of duty. After a hearing on the application, the Village denied the PSEBA benefits, finding that although the firefighter was injured on duty, the circumstances of his injury did not meet the requirements of PSEBA that the injury occurred as the result of a response to an emergency. The firefighter appealed to the Illinois Appellate Court which upheld the Village's denial of PSEBA benefits.

The firefighter had argued that he was injured when he slipped on ice stepping out of an ambulance at an emergency call. The Village, on the other hand, claimed his injury occurred later in the day, after he had returned to the station, when he was trying to start a chainsaw and moving heavy tools. The Appellate Court reviewed the evidence submitted before the Village's hearing examiner and determined that the evidence supported the Village's decision to deny PSEBA benefits. First, there was no corroborating evidence that the firefighter reported the ice incident to a supervisor. Second, there were no eyewitnesses to the ice incident. Third, none of the incident reports for that day reference the ice incident; instead, all of the reports discussed the chain saw and tool incident as causing his back injury. The Court concluded that the hearing examiner's analysis of the evidence and application of the PSEBA test in reaching his decision was not arbitrary and his decision to deny benefits was not unreasonable. Thomsen v. Village of Bolingbrook

Friday, July 14, 2023

Court Rules in Favor of Village on Neighbor Zoning Lawsuit

The Illinois Appellate Court recently ruled in favor of a municipality in a lawsuit filed by property owners challenging the Village's approval of rezoning and a PUD for a newly annexed development. Lys v. Village of Mettawa, 2023 IL App (2d) 220255-U.

The Village had annexed 170 acres of land that had been developed in unincorporated Lake County as a corporate headquarters. The annexation ordinance included certain provisions regarding the company's ability to continue operation as it did in the County with certain restrictions on future development that would require Village zoning relief. Three months after annexation, the company filed an application for rezoning of the property to the O-H "office/hotel district" and approval of a planned unit development for the existing uses. The Village conducted public hearings on the rezoning and PUD request and the request was ultimately approved.

The plaintiffs (neighboring residents) filed a three count complaint shortly after the zoning request was approved, claiming that the zoning approval violated their due process rights, among other claims. The trial court ruled in favor of the Village on the due process counts. A count against the property owner regarding certain fencing remained pending. The plaintiffs appealed the ruling in favor of the Village on the due process claims.

The Appellate Court also rejected the plaintiffs' due process claims finding that there was no evidence of procedural irregularities in the zoning process and that the rezoning approval ordinance had a presumption of validity. The Court noted that the plaintiffs acknowledge they received notice of the hearings and were given an opportunity to be heard at multiple hearings and meetings. The Court also rejected their argument that the negotiations between the Village and property owner constituted "contract zoning" or were improper secret meetings, finding no factual basis to support that argument. Instead, the Court found the zoning approval to be an example of valid conditional zoning that was approved after public hearings. The Court also rejected the plaintiffs' LaSalle Factors substantive due process argument, finding that the record overwhelmingly showed that the Village had a reasoned, rational basis for rezoning the property and did not act arbitrarily in approving the rezoning request. As a result, all claims against the Village were resolved in the Village's favor.

Friday, July 7, 2023

New Laws Affect Illinois Park Districts

Today, we report on a couple of new Illinois laws that affect park districts.

P.A. 103-146 amends the Park District Code to authorize park districts to enter into a lease or other agreement related to the acquisition of solar energy, including the installation, maintenance, and service of solar panels, equipment and similar technology. The lease or agreement is limited to a term not to exceed 2 1/2 times the term authorized for equipment or machinery leases (8 years), and must be approved by a vote of 2/3 of the park district board.

P.A. 103-153 amends the Child Care Act of 1969 to amend the definition of "day care center" that is subject to the Act to expressly exempt certain programs offered by park districts for children 3 years or older so long as the program does not meet more than 3 1/2 continuous hours at a time or less and no more than than 25 hours during any week, and provided the park district conducts a background investigation on employees of the program pursuant to section 8-23 of the Park District Code.

P.A. 103-235 amends the Park District Code to expand the authorized use of the special "police program" tax that is authorized by Section 5-9 of the Park District Code to include the implementation and maintenance of "public safety and security measures" within the parks and playgrounds maintained by the district. The new law defines "public safety and security measures" to include security personnel, special events staff, safety audits, safety drills, active shooter training, security improvements, or safety-related upgrades to buildings, grounds, or facilities such as security lighting, video cameras, medical detectors, and emergency call boxes. Those districts where a majority of voters have already approved a police program tax by referendum are authorized to use their tax revenues for these new public safety and security measures. 

Thursday, July 6, 2023

Wednesday, July 5, 2023

Act Amends Drones as First Responders Act

P.A. 103-101 was recently signed by the Illinois Governor and amends the Drones as First Responders Act to provide law enforcement agencies with more latitude to use drones at certain special events, parades, races, and similar routed events. The Act also includes a number of other changes regarding drone usage by law enforcement. 

First, the Act modifies the language that allowed law enforcement agencies to use drones for locating missing persons to apply to any search and rescue operation or aiding a person who cannot otherwise be safely reached, so long as the agency is not undertaking a criminal investigation.

Second, the Act expands the exemptions for law enforcement agency use of drones to include the following new activities:

  • To conduct infrastructure inspections of designated buildings at the request of a local government agency.
  • To demonstrate the capabilities and functionality of police drones for public relations purposes.
  • To locate victims, assist with victi health or safety needs, or to coordinate emergency responses in response to PSAP dispatched calls for service.

Third, the Act adds a new exemption to allow use of drones by law enforcement agencies at a routed event or special event. A routed event is defined as a parade, walk or race, that is hosted by a state or local government and open to the public with estimated attendance of more than 50 people. A special event includes concerts or food festivals hosted by state or local governments that meet certain estimated attendance numbers based on the population of the venue, as set out in the Act. 

In order to use a drone for a routed event or special event, notice must be posted at least 24 hours prior to the event about use of the drone for participant safety. The notice should be posted at major entry points. 

The Act allows the agency to use the drone in advance of the event to create maps and determine appropriate access routes, staging areas, and traffice routes so long as no personal identifying information is recorded and that no recorded information is used in criminal prosecutions. During the event, the drone can be used to detect any breach of the event space, evaluate crowd size, identify public safety issues, assist in emergency response to a real-time incident, and assess traffic and pedestrian flow. 

The Act modifies the record retention requirements of the Act, including requiring information gathered by the drone for these events must be destroyed within 24 hours except for information relating to terrorist attack, locating a missing person, or photographing a crime or traffic scene, which would have to be destroyed within 30 days. The Act does include some exceptions to these requirements for training or criminal investigations.

Fourth, the Act prohibits use of facial recognition except to counter a high risk of a terrorist attack, to prevent imminent harm to life, or to prevent the imminent escape of a suspect or destruction of evidence.

The Act aksi expressly prohibits equipping a drone with a weapon.

Finally, the Acct requires each law enforcement agency that uses drones to adopt a policy consistent with the Act.

Monday, July 3, 2023

PAC Orders Release of Police Report Involving Crimes Against Minor Victim

The Public Access Counselor of the Illinois Attorney General (PAC) issued its ninth binding opinion for 2023 finding a public body in violation of FOIA for withholding police reports for a teacher who had been arrested and convicted of a crime against a minor victim. PAC Op. 23-009.

A reporter had filed a FOIA request for records pertaining to the conviction of a public school teacher for criminal behavior against a minor student. The police department denied the request, arguing the report was exempt from release because disclosure would constitute an unreasonable invasion of personal privacy to the alleged minor victim. The reporter appealed to the PAC, and the PAC disagreed with the police department's claim that release of the report would be an invasion of privacy of the minor, finding that identifying information could be redacted and the remainder of the report released. Although the PAC acknowledged that a 2017 Appellate Court had issued an opinion finding that the public has little interest in the salacious and explicit details of crimes against a minor so the entire report could be withhold because disclosure would constitute an invasion of personal privacy of the minor victim; nevertheless, the PAC distinguished that case and ordered the police department to release the requested report to the reporter, with redactions of the minor's identifying information and limited instances where explicit details were included.

In its conclusion, the PAC stated it would provide the police department with a copy of the report with its own notes as to which portions of the record the PAC believed could be redacted. This is the first opinion that we are aware of that included such specific direction from the PAC.

Note that the opinion does not deal with any claim that the teacher had a right to privacy in not having the report released, likely because the teacher had been charged, convicted, and sentenced for his crimes. 

Tuesday, June 27, 2023

Supreme Court Settles on Subjective Test for "True Threats" in First Amendment Social Media Case

Today, the U.S. Supreme Court issued a ruling in a Colorado case involving a First Amendment challenge by an individual who had been convicted of stalking for his social media communications. Counterman v. Colorado. We reported on this case previously and the Supreme Court's pending ruling. In today's ruling, the Supreme Court reversed the person's stalking conviction based on its application of a new "subjective" test for determining what constitutes a "true threat" of violence. Since the State had applied an "objective test" in convicting him of the stalking crime that was based on a reasonable person's understanding that the speech was threatening violence rather than the speaker's understanding that its speech was threatening, the case was remanded back to the trial court.

The defendant had been convicted of stalking based on Facebook posts he made about a local musician. The case involved thousands of Facebook posts made from 2014 to 2016, and just a few examples were provided in our previous reporting on this case and more are detailed in the Supreme Court's decision. The Colorado man defended his conduct by arguing that the First Amendment protects speech from government interference even when that speech may be offensive to others. He argued that he could not be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argued that the proper standard in these cases is whether a reasonable person would see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

In the appeal, the Supreme Court acknowledged that "true threats" of violence are not protected by the First Amendment. The Court stated that a true threat is a “serious expression” conveying that a speaker means to “commit an act of unlawful violence.” If an individual's speech constitutes a true threat, the First Amendment would not provide that person with a defense against charges brought because of that speech (in this case, stalking charges). The issue before the U.S. Supreme Court was whether a subjective or objective test should be applied in determining whether the "speech" constituted a true threat. 

The Court ultimately determined that in order for speech to constitute a "true threat," there must be some subjective understanding by the speaker that his speech could be viewed as threatening violence. The Court held that the State must show that the speaker consciously disregarded a substantial risk that his communications would be viewed as threatening violence (i.e., a reckless standard) but is not required to prove any more demanding form of subjective intent to threaten another. Because the defendant's conviction was based on an objective test rather than the Court's new subjective standard, the Court vacated his conviction and sent the case back for further proceedings consistent with its ruling.

This is an important case for governments because the Court has adopted a more narrow test as to when a person's speech might constitute a "true threat" of violence and not be protected by the First Amendment. This case could affect how governments moderate comments on their social media pages, regulate speech at government meetings, and determine when speech might rise to the level of criminal conduct (stalking, for example). Governments may need to review their social media comment and meeting policies as well as discuss this new "subjective standard" with law enforcement to ensure that the government does not overstep when threatening speech is involved.

Monday, June 26, 2023

Illinois Supreme Court Analyzes Breach of Contract Claims in Development Agreement Case

We previously reported on an Appellate Court decision in a case involving claims of breach of contract relating to the development of a 62 acre parcel of land. The developer had initiated the lawsuit by filing a breach of contract claim, among other claims, against the municipality arguing that the municipality interfered with its proposed development that was the subject of a development agreement between the two parties. The municipality filed a counterclaim against the developer, arguing that it had breached the development agreement when it failed to transfer ownership of certain property, pay property taxes on the property, and fund an escrow account with the municipality. The circuit court found that both parties had breached the development agreement but ultimately ruled in favor of the developer because finding that the municipality could not enforce the terms of the agreement because the municipality had breached the development agreement first. The circuit court awarded the developer over $6 million in damages and attorneys fees. Both parties appealed, and the Appellate Court found the circuit court erred in finding that the municipality's breach excused the developer of its own breach, as discussed here.

The case was appealed again and the Illinois Supreme Court issued its ruling on the breach of contract claims made by both parties last week. PML Development LLC v. Village of Hawthorn Woods. In its ruling, the Illinois Supreme Court upheld the circuit court's ruling in favor of the developer on its breach of contract claim against the municipality but reversed that part of the circuit court's ruling that was in favor of the developer on the municipality's breach of contract counterclaim. The Supreme Court held that both parties had viable breach of contract claims against the other party and neither was excused from its own obligations under the development agreement merely because the other party had also breached the contract or based on which party breached first. The Supreme Court remanded the case back to the circuit court and directed the court to calculate each party's respective damages for the other party's breach of contract. 

This breach of contract case is a complicated one with a long history and we have only discussed a small part of the case here but the case could provide some guidance to developers and municipalities on how the Illinois Supreme Court will analyze and decide breach of contract claims involving development agreements.

Thursday, June 22, 2023

Court Addresses 911 Recordings and Caller Identity in FOIA Case

The Illinois Appellate Court recently ruled in favor of a sheriff's department in a case involving a FOIA request for 911 recordings. Edgar County Watchdogs v. Will County Sheriff's Office

A watchdog group filed multiple FOIA requests to a sheriff's department asking for copies of 911 calls and reports and other records relating to two parks. The department provided activity and police reports, with redactions, but denied the requests for 911 recordings. The group filed a lawsuit against the department claiming its denial of the request for 911 recordings and its redaction of reports violated FOIA. The lawsuit sought attorneys fees and costs.

The department argued that the 911 recordings were exempt under FOIA because they included statements by individuals who file complaints or provide information to law enforcement and could not be altered or redacted to protect the speaker's identity. The circuit court ruled in favor of the watchdog group and ordered the department to provide either (1) altered audio recordings to mask callers' identities or (2) transcripts of the 911 calls. The court also ordered the department to provide unredacted versions of the victim statements in the police reports. 

The department appealed the court's decision ordering it to release altered video recordings. In a previous decision on this appeal, the Court upheld the circuit court's order that the department provide altered versions of the 911 calls but rejected the circuit court's order that the department provide a transcript. On the department's motion for a rehearing, the Appellate Court modified its ruling on the altered 911 recordings, holding that because the department did not have the ability to scramble or disguise audio recordings to mask the identity of a 911 caller, it did not have to provide the recordings in their unaltered form. The Court again held that producing a transcript of the 911 calls constitutes the creation of a new record which is not required by FOIA. 

It is important to note that the Court rejected the department's argument that all 911 calls are "automatically" exempt from disclosure because the content would reveal the caller's identity, finding that not all recordings would necessarily disclose a caller's identity. 

Wednesday, June 21, 2023

EV Charging Act Will Impose New Construction Standards on Residential Buildings

Governor Pritzker recently signed into law the Electric Vehicle Charging Act, P.A. 103-0053, imposing new requirements on residential buildings to have a certain number of parking spaces be "EV capable." The Act becomes effective January 1, 2024, although some of the requirements do not take effect immediately.

The new law requires all new single family homes and multiple family buildings containing 2 to 4 units that are constructed after January 1, 2024 to have an electric panel installed that meets the "EV capable" requirements of the Act for at least one dedicated parking space per residential unit. Affordable single family homes and units in multiple family buildings with 2 to 4 units do not have to become "EV capable" until January 1, 2026 and the requirement only applies to code-required parking spaces for affordable units.

For new or converted multiple family buildings containing 5 or more units, 100% of all parking spaces must be "EV capable" for buildings issued a building permit after April 1, 2024. There is an exception to the requirement if the parking lot or structure would have to be excavated to comply with the Act. New affordable housing buildings have a more gradual rollout for EV capability, starting in 2026. 

The Act also includes provisions that restrict homeowners and condominium associations from prohibiting or unreasonably restricting the installation of EV charging systems, as well as provisions that apply to the installation of charging systems in rental properties.

"EV-capable" is defined under the Act and includes language requiring parking spaces subject to the Act to have installed, at a minimum, the electrical panel capacity and conduit to support future implementation of EV charging with 208-volt or 240-volt or greater, 4-ampere or greater circuits.

Tuesday, June 20, 2023

New Illinois Laws Apply to Townships

Today, we report on a few new Illinois laws that were recently enacted that concern Illinois townships:

P.A. 103-0016 prohibits township officials from withholding township funds from an organization based on the perceived citizenship or immigration status of the person who would receive funds from that organization.

P.A. 103-0025 amends the Illinois Public Officer Prohibited Activities Act to modify the conflict of interest restrictions that apply to municipal and county officers that also serve on the board of a non-profit organization to also apply to township officers.

P.A. 103-0072 provides that townships on a cash or modified cash basis of accounting can only count levied tax funds towards the total township funds if received within the township's fiscal year. The law also provides that a highway commissioner's equipment and building fund is considered a capital fund that is not subject to the limitation on the accumulation of funds provision of Section 85-65 of the Township Code.

Friday, June 16, 2023

New Law States that Records Provided by Public Body to PAC for FOIA Request for Review Are Not Releasable

Over the next week or two, we will be reporting on a number of bills that are now Illinois law. 

P.A. 103-0069 (SB 0325) was enacted on June 9, 2023, and amends Section 9.5(c) of the Freedom of Information Act to make it clear that records that the Public Access Counselor of the Illinois Attorney General's office (PAC) is prohibited from releasing to the public or the requester any of the records provided to the PAC by a public body in response to a request for review filed with that office. That amendment also expressly states that these records are exempt from release under FOIA while in the possessio of the PAC. 

Thursday, June 15, 2023

No Qualified Immunity for Commissioner who Displays Rifle During Speaker's Public Comment

A 6th Circuit Court of Appeals allowed a First Amendment retaliation case against a county commissioner to move forward where one of the commissioners displayed a high-powered rifle while a member of the public was speaking during public comment at a commission meeting. MacIntosh v. Clous.

At a county commission meeting held by Zoom, members of the public spoke during public comment to express concerns about the commission's prior invitation to the Proud Boys to attend a previous commission meeting. One speaker asked the commissioners to make a public statement condemning the Proud Boys' violent behavior. In response to her comments, a commission member briefly left the Zoom video area and returned with a high-powered rifle that he displayed on camera while she spoke.  

Following the meeting, the speaker sued the commissioner and the county, alleging that the commissioner unconstitutionally retaliated against her for exercising her First Amendment rights. She argued that the display of the rifle while she spoke during public comment made her feel fearful, intimidated, and physically threatened, and had deterred her from speaking at subsequent commission meetings. Other members of the public and officials also expressed concern and fear, and one commission member proposed a censure resolution that the commission voted down. 

The commissioner filed a motion to dismiss the lawsuit, claiming he had qualified immunity for his actions. The district court disagreed and denied his motion to dismiss and he appealed to the 6th Circuit Court of Appeals. 

On appeal, the commissioner argued the case should be dismissed because the speaker's allegations did not rise to the level of retaliation and that he had qualified immunity for his actions. The Court of Appeals disagreed with him, finding that the speaker had plausibly alleged that the commissioner violated her free speech rights. 

First, the Court held that the speaker's public comments at the commission meeting was a protected First Amendment activity. Second, the Court found that the commissioner's display of a firearm to the camera was a threat with a deadly weapon that could be interpreted as a message to "stop or else" the weapon would be used against her, and a threat to shoot someone because of protected speech is an adverse action required to show retaliation. The Court also noted that the commissioner's conduct could fall under the crime of "brandishing" a weapon. Third, the Court held that the display of the firearm by the commissioner was in direct response to the speaker's comments at the commission meeting, finding a connection between the two. Finally, the Court rejected the commissioner's qualified immunity argument finding that no reasonable official could believe that it was permissible to brandish a deadly weapon in response to a speaker's public comment that was asking the official to condemn violence. 

As a result, the Court of Appeals concluded that the district court properly denied the commissioner qualified immunity and sent the case back for further proceedings on the speaker's First Amendment claims.

Wednesday, June 14, 2023

New Law Ties State Library Funding to Policies on Book Bans

At a signing ceremony at Chicago’s Harold Washington Public Library on June 12th, Governor Pritzker signed into law P.A. 103-0100. This new law, effective January 1, 2024, states that if a library or library system wants to be eligible for state funding, it must either:

(1) adopt the American Library Association’s Library Bill of Rights that indicates materials should not be proscribed or removed because of partisan or doctrinal disapproval; or

(2) develop a written statement declaring the inherent authority of the library or library system to prohibit the practice of banning specific books or resources. 

The State Librarian and Illinois State Library Staff are charged with administering the provisions of this new law, and are authorized to create appropriate rules and regulations to carry out the new law. 

Included in the new law is the following policy statement:

It is further declared to be the policy of the State to encourage and protect the freedom of 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.

Illinois appears to be the first state to pass this type of law that ties state funding to library policies on book banning.

Post Authored by Britt Isaly & Julie Tappendorf, Ancel Glink

Tuesday, June 13, 2023

New Law Modifies "Parties of Record" in Challenges to Historic Preservation and Architectural Review Decisions

The Illinois Governor recently signed P.A. 103-0067 into law amending the Administrative Review Law to modify who the "parties of record" are that must be named as defendants in an administrative review of a historic preservation or architectural review decision of a local commission or board.

Prior to this legislation being enacted, interested persons who appeared before a historic preservation or architectural/design review board or commission were named as defendants in any administrative review action before a circuit court to challenge the board or commission's decision. This new law will treat interested persons who appear before historic preservation or appearance review boards or commissions the same as those persons who appear before a zoning board of appeals, meaning they will no longer have to be named as defendants in the lawsuit challenging the adminsitrative decision.

Note that the new law does require the person who files a lawsuit to challenge the decision of the historic preservation or architectural review board or commission to provide notice to those persons who appeared at and provided oral testimony or written testimony at the board or commission informing them of the filing of the lawsuit and their right to intervene in the lawsuit, if they choose to do so.

Monday, June 12, 2023

Employee Terminated for Social Media Posts Not Entitled to Unemployment Benefits

An Illinois Appellate Court recently held that an employee who had been fired for making threats against his co-workers on Facebook was not entitled to unemployment benefits. Termini v. Board of Review of IDES

A City truck driver posted on a Teamster union's Facebook page that he objected to his co-workers coming to work while exhibiting COVID-19 symptoms. According to the opinion, his posts read as follows:

This is really getting old. I’m sick of this. How is it that money comes before safety? Well, you’ve been warned. You better pray this doesn’t touch my life because I’ll take you all with me.

* * * 

You've been warned.

The City fired the driver as a result of his social media posts, and he filed an application for unemployment benefits. The City objected to his application on the basis that he was not eligible for unemployment benefits because he had been terminated for misconduct. The City argued the driver was dismissed because he used social media to "willfully and deliberately make threatening statements towards his coworkers" in violation of a law prohibiting harassment through electronic communication and the City's electronic communication policy. After the IDES granted him unemployment benefits, the City filed an administrative appeal before the ALJ, which also upheld the approval of benefits.

The City then appealed to the IDES Board of Review, which determined that the driver was not eligible for benefits because his public threat of violence in the workplace constituted "misconduct," which violated state law and the City's policies and disrupted the City's operations. The driver then filed a lawsuit, which case ultimately went to the Appellate Court.

The Appellate Court agreed that the driver was not entitled to unemployment benefits, finding that his social media postings constituted "misconduct" because they violated laws prohibiting harassment through electronic communications. The Court found his postings were an "illegal threat" because his statements, when read together, could reasonable be read as a threat of violence, whether the statements were interpreted to mean the driver would physically harm his co-workers or threaten to infect his co-workers if he were to contract COVID-19 from his co-workers.

Wednesday, June 7, 2023

Extension of "Cocktails-to-Go" Statute Signed by Governor

The Governor has signed P.A. 103-004 into law, which law amends a number of state statutes, including statutes relating to the state energy code, sports wagering, court fees, and various others. One provision that will be of interest to local governments is the extension of the previous amendment to the Illinois Liquor Control Act that authorized the delivery and carry out of mixed drinks until August 1, 2028 - this "cocktails to go" enactment was set to expire in January of 2024, and now will extend for an additional four plus years.

We reported on the 2020 "cocktails to go" legislation here.

Tuesday, June 6, 2023

Public Body Improperly Imposed a "Review Fee" for FOIA Request

In its eighth binding opinion of 2023, the PAC found a public body in violation of FOIA because it improperly treated a FOIA request as a commercial request and imposed an improper "review" fee. PAC Op. 23-008.

The Natural Defense Council filed a FOIA request with a county requesting records pertaining to flood-related home buyout programs. The Council requested a fee waiver stating that the request was in the public interest and the Council was a non-profit organization. The county responded that it had compiled the requested records and the fee for the request would be $90 in copying fees and $130 for a "review" fee. The Council said it would pay the fee "under protest" but shortly thereafter was notified that the fee would actually be over $1,000 because the county had printed out more than 3,000 pages of responsive records. The county also explained that $600 of the $1000 fee was for the county's "review" of the records. 

The Council then filed a request for review with the Public Access Counselor (PAC), arguing that the county improperly charged a "review fee" even though the Council's request was not for a commercial purpose. The county responded that it properly treated the request as a commercial request under section 6(f) of FOIA, which allows a public body to charge a fee for searching and reviewing records.

The PAC disagreed with the county's assertion, finding that the Council was a non-profit organization, its stated purpose for its FOIA request was for "academic, scientific, or public research or education," and there was no evidence that the Council intended to use the records "for sale, resale, or solicitation or advertisement for sales or services." In short, the PAC found the county in violation of FOIA for treating the Council's request as a commercial request and for imposing a "review" fee and directed the county to provide the records subject only to permissible copy charges.

Monday, June 5, 2023

PAC Rejects City's Reliance on "Unduly Burdensome" Provision to Deny FOIA Request

The PAC recently issued a binding opinion finding a public body in violation of FOIA by improperly denying a request as unduly burdensome. PAC Op. 23-007.

A requester submitted a FOIA request for "all emails" sent or received or circulated by a city's planning and development department in calendar year 2021 relating to a particular parcel of land owned by the municipality. The city responded by requesting additional information about the request, including the name or email address of specific city employees, the timeframe for the search, and any specific search terms or criteria for the search. The requester replied that it was not required to identify specific employees for its request for emails and that the other requested information was already described in the original FOIA request. The city then notified the requester that it was treating the request as "unduly burdensome" under section 3(g) of FOIA because it would require the city to review all department emails to determine which were responsive to the request. The requester subsequently filed a request for review with the PAC. The city did not file a response.

The PAC reviewed section 3(g) of FOIA and determined that it requires a public body to explain the reasons why a request would be unduly burdensome and the "extent to which compliance will so burden the operations of the public body." Here, the PAC found that the city did not adequately explain why or how the request was unduly burdensome. The PAC also noted that public bodies are expected to make "judgment calls" about the manner in which to conduct a search for responsive records. When a request asks for "all emails," the PAC acknowledged that a public body isn't required to search every email account of every employee and official ut instead will need to make a "judgement call" to identify specific employees whose emails are reasonably likely to contain responsive records since the public body is in a better position than members of the public to know which employees are likely to have sent or received emails on a particular subject. 

In conclusion, the PAC determined that the city's insistence that the requester identify specific employees or email addresses to be unreasonable, and the city's reliance on the "unduly burdensome" provision of section 3(g) of FOIA to be improper and directed the city to conduct a search of its email system for the requested records.

Friday, June 2, 2023

Quorum Forum Podcast - Tips for Newly Elected Officials

Quorum Forum just released Episode 73: Tips for Newly Elected Officials

In this episode, Ancel Glink attorneys called the Quorum Forum hotline with their tips and congratulations for newly and not-so-newly elected local government officials in Illinois, including helpful tips on local government meetings, public comment, working with staff, and more!

Thursday, June 1, 2023

Federal Court Tackles First Amendment Challenge to University’s Public Comment Procedures

Recently, a federal district court denied a university's motion to dismiss a First Amendment lawsuit brought by union membersSEIU Local 73 v. Board of Trustees of the University of Illinois.

In early 2022, three SEIU Local 73 Union members (who also sat on the Union’s bargaining committee) sought prior permission to speak during the public comment period of the upcoming University Board of Trustees (Board) meeting. Each member noted on their request that they planned to address the Board regarding collective bargaining and labor relations at the University. The Board denied their request to speak based on its public comment procedures which prohibit presentations on “issues under negotiation as part of the University’s collective bargaining process.” The Union and its three members then sued the Board, claiming its policy violated its free speech rights under the First Amendment, and the University filed a motion to dismiss the lawsuit.

The district court first engaged in a "forum analysis," which is a common first step in assessing First Amendment claims brought against government bodies when they restrict speech in public places. The Union argued that the Board meeting should be considered a “designated public forum,” which means it would be a forum held open for speech during certain times with little to no restrictions on the speech. The Board argued that the meeting was a “limited public forum,” meaning it was open for speech on a selective basis and only for a distinct purpose. The district court determined that the Board meeting was a limited public forum based on the numerous rules and procedures governing public comment: members of the public are required to seek advance permission to participate, have a limited time to address the Board, and may only speak on matters which the Board has authority to address. Additionally, the Board had specific restrictions on comments addressing particular topics―including matters falling under collective bargaining negotiations. Because it was a limited public forum, the court noted that the restrictions imposed by the Board were subject to a less stringent review than under a designated public forum.

Next, the Court found that because it was a limited public forum, the Board could constitutionally impose reasonable restrictions on speech during public comment, so long as it did not discriminate against speakers based on their viewpoint. The Union argued that the Board's policy prohibiting all labor-related speech was unreasonable so their First Amendment claim should not be dismissed. The University, on the other hand, argued that its policy was reasonably drafted to avoid a violation of Illinois labor laws, which require that all collective bargaining be done with a union’s chosen exclusive representative.

On this issue, the court agreed with the Union and determined that its claim should not be dismissed. It distinguished collective bargaining procedures from comments made during a public meeting, noting that “merely listening” to unioni employees during public comment does not constitute bargaining or unlawful direct dealing. Because the meeting was held open to the public, the court determined there was minimal risk that an unauthorized "agreement" would be formed between the union members who spoke during public comment and the Board. The court also noted that the Board was not obligated to respond to the comments made during public comment, which further limited the risk of direct dealing. As a result, the court denied the University’s motion to dismiss the Union’s First Amendment claim, and the case will continue through litigation.

The Court made it clear that its opinion should be interpreted narrowly, based on the unique restrictions that the University adopted on public comment at its Board meetings. However, forum analysis applies equally to local government meetings, and readers should be aware that Free Speech rights may be implicated when public comment is restricted.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink 

Wednesday, May 31, 2023

Illinois General Assembly Spring Session Ends

The Illinois General Assembly adjourned its spring session over the weekend. Before the session ended, the General Assembly acted on a few bills of interest to local governments. We have summarized a few of these below for informational purposes but note that these bills have not been enacted and are awaiting Governor action. We will report on a few other bills of interest over the next couple of weeks and provide updates if these bills become law.

Affordable Housing Planning and Appeal Act (SB 1476)

We previously reported on this bill that proposed certain changes to the AHPAA. Note that the version that passed the Illinois Senate and House is substantially different than what was originally introduced. The version that passed both houses would retain the current definition of an "exempt" municipality as a municipality that has at least 10% of its housing stock as "affordable" or a municipality with a population of less than 1,000. The bill does modify the reporting requirements for non-exempt municipalities, including a new requirement that non-exempt municipalities submit a report of their progress to the Illinois Housing Development Authority no later than 4 years after adopting or updating their plans. The bill also includes a requirement that plans include a proposed timeline of actions for implementation, and a summary of actions already taken. The bill also modifies the appeals process for developers.

Law Enforcement Drone Surveillance (HB 3902)

If signed by the Governor, this bill would modify the "Freedom from Drone Surveillance Act" to authorize law enforcement agencies to conduct drone surveillance of parades, races and other "routed events," and certain outdoor special events hosted by a unit of local government. The bill would not allow use of drones for protests, marches, demonstrations, or other First Amendment protected activities. The bill includes detailed regulations regarding law enforcement use of drones and requires law enforcement agencies using drones under these provisions to adopt a policy consistent with the bill. 

Amusement Taxes (HB 3808)

If this bill is signed by the Governor, it would expressly exempt Internet streaming services from cable/video franchise fees.