Supreme Court Will Hear Cases Involving Local Officials' Social Media Activities

Supreme Court Will Hear Cases Involving Local Officials' Social Media Activities

  Thursday, April 27, 2023    Julie Tappendorf

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Earlier this week, the U.S. Supreme Court agreed to hear two appeals of court of appeals decisions on challenges to local government officials' actions on social media. 

The first case involved a challenge to two California school board members who had blocked parents from their personal social media pages. The parents had filed suit claiming that the school board members' actions violated their First Amendment rights. The 9th Circuit Court of Appeals agreed with the parents, finding that the school board members actions in blocking them from their pages violated the parents First Amendment rights. We wrote about this case last year and now the Supreme Court will decide the school board members' appeal of the adverse decision against them.

The second case involves a lawsuit against a Michigan city manager who had blocked a city resident after he had posted critical comments about the city manager's handling of the COVID-19 pandemic. In this case, the 6th Circuit Court of Appeals ruled in favor of the city manager, finding that he had not operated his Facebook page as part of his city manager duties so the blocking of the resident did not violate the resident's First Amendment rights. The resident is now appealing that decision to the Supreme Court.

So, it looks like the Supreme Court will finally weigh in on whether the actions of local government officials and employees on their personal social media pages and accounts (i.e., deleting critical comments and blocking or banning individuals) implicate the First Amendment rights of those individuals. It is certainly possible that the Supreme Court takes a "fact specific" approach to this issue which could end up with different conclusions based on how the officials and employees used their social media accounts (i.e., did they use it as a tool of governance or were the personal and official activities so intermingled as to blur the line between a personal page and a government forum?). It will certainly be interesting to see how the Justices deal with these two cases, particularly since the Court did not decide the only other case to reach them with similar issues (the challenge to former President Trump's actions on Twitter) because it was "moot" since he was no longer the President.

For more information, see Amy Howe, Justices add two cases on liability of officials who block critics on social media, SCOTUSblog (Apr. 24, 2023, 11:31 AM).

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Reminder of Cybersecurity Training Requirement for Municipalities and Counties

Reminder of Cybersecurity Training Requirement for Municipalities and Counties

  Wednesday, April 26, 2023    Julie Tappendorf

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We wanted to remind Illinois municipalities and counties of a state law that became effective earlier this year that imposes new cybersecurity requirements, including annual cybersecurity training for municipal and county employees and for some municipalities and all counties, the appointment of a cybersecurity designee.

P.A. 102-0753 was enacted last year and became effective January 1, 2023. The Act includes the following changes and new obligations.

First, the Act requires that every employee of a municipality or county complete an annual cybersecurity training program. That training must include, at a minimum, the following:

• detecting phishing scams;
• preventing spyware infections and identity theft; and
• preventing and responding to data breaches.

Second, the Act requires the "principal executive officer, or his or her designee" of any municipality with a population of 35,000 or greater and all counties to designate a local official or employee as the primary point of contact for local cybersecurity issues and to provide the name and contact information to the Department of Innovation and Technology (a state agency). 

Third, the Act amended FOIA to expand the security plans and policies exception of section 7(1)(v) of FOIA to cover policies and plans addressing cybersecurity vulnerabilities so that these records are now exempt from release under FOIA.

Finally, the Act directs the Department to put together a cybersecurity training program and make it available to municipalities and counties. As an alternative, the Act does allow counties and municipalities to create their own training program. 

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PAC Allows Limited Discussion of Request for Review in Closed Session

PAC Allows Limited Discussion of Request for Review in Closed Session

  Tuesday, April 25, 2023    Julie Tappendorf

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As we've noted in the past, some of the more interesting opinions issued by the Public Access Counselor (PAC) that often provide helpful guidance to public bodies are the advisory/non-binding ones. 

In 2017, the PAC issued an advisory opinion (2017 PAC 46034) finding a public body in violation of the OMA for discussing certain improper topics in closed session. However, in a portion of this PAC opinion, the PAC determined that the "litigation exception" of 2(c)(11) of the OMA allows a public body to enter closed session to discuss strategies for responding to a PAC request for review. The PAC determined that a PAC request for review "constituted litigation pending before an administrative tribunal" (being the PAC office) so the public body could go into closed session to discuss the "strategies, posture, theories, and consequences of the litigation itself." The PAC noted that this exception can only be cited and used during the initial 60 day period within which the PAC can issue a binding opinion and cautioned that the exception does not extend to a public body's discussions about compliance with the OMA generally.

In sum, the PAC acknowledged in this advisory opinion that a public body that is the subject of a PAC request for review can use the "litigation exception" of the OMA to discuss the request for review in closed session so long as that discussion takes place within the initial 60 day period after the request for review has been filed and is limited in scope.

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Court Reverses Issuance of Judicial Deed in Abandonment Proceeding

Court Reverses Issuance of Judicial Deed in Abandonment Proceeding

  Thursday, April 20, 2023    Julie Tappendorf

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A City filed an action in circuit court to declare a property "abandoned" under a procedure authorized by the Illinois Municipal Code (65 ILCS 5/11-31-1(d)). The City sought to demolish the "Tower," an historic building that was constructed over 100 years ago and that had fallen into disrepair. According to the lawsuit, the Tower had not been used for some time except for the use of the rooftop for cell antennas leased by two cellular companies.  

The circuit court granted the City's requested relief and issued a judicial deed to the City. The owner of the Tower appealed, arguing that that the circuit court erred when it declared the Tower abandoned because the City failed to show all of the statutorily required elements under 65 ILCS 5/11-31-1(d), which provides as follows:

(d) In addition to any other remedy provided by law, the corporate authorities of any municipality may petition the circuit court to have property declared abandoned under this subsection (d) if: 

   (1) the property has been tax delinquent for 2 or more years or bills for water service for the property have been outstanding for 2 or more years; 

   (2) the property is unoccupied by persons legally in possession; and 

   (3) the property’s condition impairs public health, safety, or welfare for reasons specified in the petition.” 

Specifically, the owner argued that the City failed to show that that the Tower had been tax delinquent for 2 or more years or that water invoices have been outstanding for 2 or more years. The City argued that the property had no water service for decades which, in the City's view, demonstrated abandonment.

The Appellate Court rejected the City's argument, finding that it failed to meet all three elements required to establish abandonment. Because the plain language of the statute is "clear and unambiguous," the Appellate Court would not read into the statute additional requirements or exceptions. As a result, the Appellate Court reversed the circuit court's finding of abandonment and found the court's issuance of a judicial deed to be in error. 

City of Danville v. C.A. Collins Enterprise.

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U.S. Supreme Court Will Hear "True Threat" First Amendment Case

U.S. Supreme Court Will Hear "True Threat" First Amendment Case

  Wednesday, April 19, 2023    Julie Tappendorf

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Today, the U.S. Supreme Court will hear oral argument in the appeal of a stalking conviction of a Colorado man relating to Facebook posts he made about a local musician. The case involved thousands of Facebook posts made over a period of 18 months, and included the following:

“Die, don’t need you.”

“F-ck off permanently.” 

“Staying in cyber life is going to kill you.” 

"Knock, knock…. five years on FB. I miss you, only a couple physical sightings, you’ve been a picker upper for me more times then I can count…." 

The Colorado appeals court upheld his conviction finding that his Facebook posts qualified as "true threats" so were not protected by the First Amendment. He then appealed to the U.S. Supreme Court.

The Colorado man argues that the First Amendment protects speech from government interference even when that speech may be offensive to others. He also argues that he cannot be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argues that the proper standard in these cases is whether the recipient would reasonably see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

The issue before the Supreme Court is whether the government has to show that the speaker subjectively knew or intended the threatening nature of his or her statement in order to qualify as a "true threat" that would be unprotected under the First Amendment (the Colorado man's argument) or, alternatively, whether it is enough to show that an objective "reasonable person" would consider the statement a threat of violence (the State's argument). We will provide an update when the Supreme Court issues a ruling in this case as it could have an impact on how local governments enforce their own social media policies when comments or posts on the government's page contain threatening language. 

For a good summary of this case and appeal, see Amy Howe, Colorado man’s First Amendment challenge will test the scope of protection for threatening speech, SCOTUSblog (Apr. 17, 2023, 10:12 PM).

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Bill Proposes Changes to Affordable Housing Planning and Appeal Act

Bill Proposes Changes to Affordable Housing Planning and Appeal Act

  Tuesday, April 18, 2023    Julie Tappendorf

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A bill has been introduced in the Illinois Senate that would amend the Affordable Housing Planning and Appeal Act that will have an impact on many Illinois municipalities. 

If passed, SB 1476 would make the following changes to the Act, among others:

The Act would modify the definition of "exempt local government" so that local governments with 15% affordable housing units would be exempt from the Act (rather than those with 10% of their housing stock as affordable). The definition would also exempt local governments with a population under 2,500 (currently 1,000).

In calculating the cost of rental units, any costs for parking, maintenance, or landlord-imposed fees would be included in the calculation if available from the Census Bureau. 

The affordable housing plan requirements have been expanded or modified as follows:

• A description of housing market conditions, infrastructure limitations, local government ordinances, local government policies or practices that do not further fair housing, and other local factors that constrain the local government's ability to create and preserve affordable housing
• A plan or strategies to eliminate or mitigate the above-identified constraints
• A change to the goals required in the plan to increase from 3 to 5% the increase in the overall percentage of affordable housing and to increase from 10% to 15% the minimum affordable housing units
• A 5 year target for reaching one or more of the goals, and a requirement that the plan include timelines within the first 24 months for actions to implement the components of the plan

The bill would require non-exempt local governments that have submitted a plan previously to IHDA to include a summary of actions taken to implement the previously submitted plan and a summary of progress made towards achieving the goals.

The bill would require local governments to submit a report no later than 36 months after adopting or updating a plan summarizing actions taken to implement the plan.

The bill would require IHDA to post affordable housing plans submitted by local governments on its website.

The bill also would modify the process for affordable housing developers to appeal a decision on a proposed affordable housing development starting January 1, 2026 to restrict appeals against non-exempt local governments until 6 months after they have been notified of their non-exempt status. 

The bill makes some changes to the make-up of the appeals board, including removing the prohibition on more than 4 members being of the same political party.

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Court Finds Grand Jury Subpoenas Not Categorically Exempt from FOIA Disclosure

Court Finds Grand Jury Subpoenas Not Categorically Exempt from FOIA Disclosure

  Tuesday, April 11, 2023    Julie Tappendorf

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In 2019, Chicago Public Media filed a FOIA request with the Illinois State Toll Highway Authority requesting “any and all subpoenas from federal, state, or local law enforcement authorities seeking documents or testimony that have been filed with the Illinois State Tollway since January 1, 2018.” The Tollway Authority turned over 86 of the 126 responsive documents, but withheld 43 on the basis that the issuing agencies objected to the disclosure. The Tollway Authority cited the FOIA exemption in section 7(1)(a) and argued that federal and state codes of criminal procedure prohibit disclosure of material that reveal secret aspects of grand jury investigations and proceedings. 

In Chicago Public Media v. Illinois State Toll Highway Authority, the Appellate Court rejected the argument that federal and state criminal codes expressly prohibit the Tollway Authority from disclosing the full contents of grand jury subpoenas. The Appellate Court held that if the requested subpoena does not reveal some secret aspect of the grand jury’s investigation (such as the identity of the witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like) then it is not exempt from disclosure under the criminal codes of procedure, stating as follows: 

In sum, the Appellate Court held that grand jury subpoenas are not categorically exempt from FOIA under state or federal criminal codes of procedure, stating as follows:

Because there is no specific prohibition on a grand jury subpoena recipient disclosing the subpoena, and because we cannot expand FOIA’s exemptions by judicial proclamation, we reject the notion that defendant is entitled to redact the documents prior to production pursuant to section 7(1)(a). We cannot expand section 112-6, nor Federal Rule of Procedure 6, to encompass recipients of grand jury subpoenas. There is no federal or state law that “specifically prohibits” defendant from disclosing the full content of its subpoenas. See 725 ILCS 5/112-6(b) (West 1-21-0629 11 2020); Fed. R. Crim. P. 6(e) (West 2020). Therefore, we find that defendant cannot rely on section 7(1)(a) of FOIA to withhold or to redact the relevant documents.

Note that the Court did send the case back to the trial court to conduct an "in camera" review of the records to determine if other FOIA exemptions might apply to protect certain information in the subpoenas and to allow the Tollway Authority to assert any applicable exemptions to protect portions of the records. 

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

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Quorum Forum Podcast on Statements of Economic Interest

Quorum Forum Podcast on Statements of Economic Interest

  Monday, April 10, 2023    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast has released Episode 71: Statement of Economic Interests

Many local government officers and employees are required to file a statement of economic interests each year and the questions on the revamped form are causing confusion for many filers. However, a careful review of the definitions in the law will make the questions easier to answer. 

Email your questions to podcast@ancelglink.com!

Secretary of State Guidance for Statements of Economic Interests

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Appellate Court Upheld Rulings in Favor of Village in Lawsuit for Property Damages

Appellate Court Upheld Rulings in Favor of Village in Lawsuit for Property Damages

  Tuesday, April 04, 2023    Julie Tappendorf

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In three related decisions, the Appellate Court upheld a trial court's ruling in favor of a municipality in three lawsuits brought by a resident claiming the municipality damaged his property. Ferrari v.Village of Glen Carbon, 2023 IL App (5th) 210373-U; Ferrari v. Village ofGlen Carbon, 2023 IL App (5th) 210374-U; Ferrari v. Village of Glen Carbon,2023 IL App (5) 210375-U.

A resident brought several small claims actions against a municipality alleging that actions of Village employees and agents resulted in damages to the resident’s property and seeking monetary damages. Three of the resident’s claims were consolidated and heard together in a single hearing by the trial court.

In the first case, the resident claimed he incurred damages when Village employees allegedly trimmed back and killed bushes on the resident’s property. The trial court ruled that the Village was not liable for damages because Village employees have a common law privilege to trim the residents’ bushes in order to maintain public roadways.

In the second case, the resident argued that Village employees trespassed and caused damage to his property when repairing a public roadway. The trial court noted that although Village employees had a legal privilege to temporarily access the resident’s property to make repairs to a public roadway, the Village's actions in leaving its equipment at the resident’s property for several days constituted a "trespass." However, the trial court only awarded nominal damages of $1.00 because the trespass was incidental to needed repairs of a public roadway.

In the third case, the resident claimed the Village was liable for damages to the resident’s car when the Village accessed the property to mow the resident’s grass when the resident failed to maintain its lawn in accordance with Village requirements. The trial court determined the Village had a right to access the resident's property, but that the Village was negligent and damaged the resident’s car, and the court awarded damages to cover the resident's costs of repair.

On appeal of all three rulings, the resident argued the trial court erred in its rulings and violated the resident’s Sixth Amendment rights when it denied him an opportunity to conduct a second cross-examination of a Village witness and refused to allow the resident to introduce evidence rebutting the witness’s testimony. The Appellate Court rejected the resident's arguments, finding that the trial court record that was submitted by the resident was incomplete and the resident had waived the Sixth Amendment claim. 

Additionally, the resident also argued on appeal that the trial judge was biased in favor of the Village and engaged in an impermissible ex-parte communication with the Village’s attorney and improperly advised and assisted the Village's attorney with its defense. The Appellate Court rejected the resident’s bias arguments, holding that the resident's vague allegations of bias were unsupported by the record and insufficient to “overcome the presumption that the trial judge was fair and impartial.” 

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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PAC Directs School Board to Re-Vote on Severance Agreement Due to Agenda Deficiency

PAC Directs School Board to Re-Vote on Severance Agreement Due to Agenda Deficiency

  Monday, April 03, 2023    Julie Tappendorf

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The Public Access Counselor of the Illinois Attorney General recently found a school district board in violation of the OMA for failing to indicate the general subject matter of an action taken after executive session. PAC Op. 23-004.

According to the opinion, a school board went into executive session at one of its meetings to discuss a severance agreement for a school employee. After returning to open session, the board voted to approve a severance agreement as part of its action on personnel matters. Four months after the meeting, an individual filed a request for review with the PAC, claiming the board's vote on the severance agreement violated the OMA because the meeting agenda did not adequately describe the action to be taken at the meeting. 

The agenda included the following items relating to the closed session and immediately following open session:

10. Closed session

For the purpose of discussing

• The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body 5 ILCS 120/2(c)(1), amended by P.A. 101- 459.

Immediately following closed session, action may take place as a result of closed session discussion.

11. Reconvene in open session

• The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body 5 ILCS 120/2(c)(1), amended by P.A. 101­459

Immediately following closed session, action may take place as a result of closed session discussion.

In its response to the PAC, the school board argued that the request for review was not filed within the 60 day statutory time-period and that the individual who filed the complaint could have discovered the issue within the 60 day period if he had exercised due diligence because the action was publicly discussed the meeting, the agreement was publicly available after final action was taken, and the minutes explained the final action. 

The PAC rejected the board's argument that the request for review was untimely, determining that the individual did not discover the issue until the press published articles about the action, so the PAC found the complaint timely.

In considering the substantive claim that the vote violated the OMA, the PAC noted that section 2.02(c) of OMA states, in pertinent part, as follows:

(c) Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.

It is important to note that the opinion does not state whether the severance agreement that was voted on by the board was approved by ordinance or resolution to trigger this section (not all actions taken by a public body are by ordinance or resolution). In any event, the PAC interpreted section 2.02(c) in an expansive manner, stating that it applies to any final action a public body intends to take at a meeting. Applying this section to the issue raised in the request for review, the PAC found the board violated the OMA because its meeting agenda did not set forth the "general subject matter" of the board's vote on the severance agreement. The PAC then directed the board to re-vote on the severance agreement in a manner consistent with its opinion and to ensure that future agendas complied with the OMA.

Author commentary:  Putting aside the PAC's expansive interpretation of section 2.02(c) to apply to any final action of a public body rather than just action on a resolution or ordinance as stated in the statute, it is important to remember that previous court cases have required agenda items to be "sufficiently descriptive" to inform the public about matters that will be the subject of final action at a meeting. For example, an Illinois Appellate Court ruled in 2002 that an agenda item called "NEW BUSINESS" was not sufficiently descriptive for the public to be informed that a board would be voting on a matter at the meeting. Rice v. Board of Trustees of Adams County. 

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