Wednesday, March 29, 2023 Julie Tappendorf
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 Julie Tappendorf
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 Julie Tappendorf
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we can only report on advisory opinions and other more informal determinations of the PAC when we become aware of these unpublished records. Today, and in future posts, we will take the opportunity to inform our readers about some of these unpublished determinations from 2022.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 Julie Tappendorf
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 Julie Tappendorf
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 Julie Tappendorf
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 Julie Tappendorf
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 Julie Tappendorf
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 09, 2023 Julie Tappendorf
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 08, 2023 Julie Tappendorf
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 07, 2023 Julie Tappendorf
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).
WHO HAS TO COMPLY?
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."
WHO HAS TO BE ON THE COMMITTEE?
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.
WHAT DOES THE COMMITTEE HAVE TO DO?
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.
WHAT NEEDS TO HAPPEN AT
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.
WHAT DO WE DO WITH THE REPORT ONCE IT HAS BEEN PREPARED?
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 06, 2023 Julie Tappendorf
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 02, 2023 Julie Tappendorf
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
public.access@ilag.gov
877-299-3642
