Approval of Contract Extending Beyond Mayor’s Term a Valid Exercise of Home Rule Authority

Approval of Contract Extending Beyond Mayor’s Term a Valid Exercise of Home Rule Authority

  Tuesday, April 30, 2024    Julie Tappendorf

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UPDATE - the Appellate Court filed this ruling as a published opinion on June 7, 2024, which published opinion can be accessed here.

In 2021, a home rule municipality (Village) entered into a contract with a vendor (Vendor) for IT services. The Village approved the contract for a 5-year term through a resolution unanimously adopted by the Village Board. The terms of the contract provided that either the Village or the Vendor could terminate the contract, but only after providing written notice to the other party that there had been a breach. For several months, the Village paid the Vendor for services under the contract. At that point, however, the Village Manager informed the Vendor that the contract was not “working out,” and the Village prohibited the Vendor from providing the services for the remainder of the term. The Vendor sued the Village and Village Manager, claiming that the Village had wrongfully terminated the contract without a notice of breach, and that the Village Manager had unlawfully interfered with their performance of the agreed-upon IT services.

In response to the lawsuit, the Village claimed the contract was invalid and void because it violated Section 8-1-7(b) of the Illinois Municipal Code, which provides that municipalities cannot enter into contracts for a term exceeding the term of the mayor or president holding office at the time the contract is signed. Since the contract was signed in April 2021, and the then-Village President’s term was set to end in May 2021, the Village argued the contract was not valid. The trial court agreed with the Village and dismissed the lawsuit.

On appeal, the Vendor argued that because the Village is a home rule municipality, it was not bound by the statute. The Vendor argued that the Village's resolution approving the contract clearly stated it was acting “in the exercise of its home rule powers,” and that evidenced the Village’s intent to enter into the contract for the full 5-year term. In response, the Village argued  it could only exercise its home rule authority by passing an ordinance, not a resolution.  

The Appellate Court ruled in favor of the Vendor, finding the Village had superseded state statute by adopting the resolution and expressly invoking its home rule authority in the text of the resolution. Proven Business Systems LLC v. Village of Oak Lawn. The Court determined that a home rule municipality has the authority to enter into contracts for an extended term so long as (1) the contract is approved by a majority vote of the corporate authorities and (2) the approval shows an intent to supersede the requirements of the statute. Because both of these circumstances were satisfied by the resolution and contract in this case, the Court found the Vendor's lawsuit should not have been dismissed by the trial court. 

Post Authored by Erin Monforti, Ancel Glink

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Court Rejects First Amendment Challenge to Public Comment Policy

Court Rejects First Amendment Challenge to Public Comment Policy

  Friday, April 26, 2024    Julie Tappendorf

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An Illinois Appellate Court recently upheld the dismissal of a First Amendment and civil rights challenge to a municipality's public comment policy and various other actions. Eberhardt v. Village of Tinley Park.

The plaintiff had previously filed a lawsuit in federal court against the village challenging a variety of actions, including a First Amendment challenge to the village's public comment policy that restricted comments at a special village board meeting to those that are "germane" to agenda items at that special meeting. In 2021, the federal court dismissed the lawsuit on several bases, including that the special board meeting was a "non-public forum" and the "germaneness requirement" was both reasonable and viewpoint neutral. 

In 2022, the same plaintiff filed a lawsuit in state court raising similar challenges to the public comment policy, but also raising an argument that the policy violated the Illinois constitution. This state lawsuit also claimed that the public comment policy violated the Illinois Open Meetings Act and that a complaint filed with the ARDC (the attorney disciplinary commission in Illinois) violated his civil rights as retaliation and suppression of his First Amendment rights.

The circuit court dismissed all of the claims raised in the state court complaint. On appeal, the Appellate Court upheld that dismissal, as discussed below:

First Amendment Claims

First, the Illinois Appellate Court determined that the federal district court's decision involving the same parties precluded his claims in state court with respect to the federal constitution, finding "collateral estoppel." The Court discussed the federal court's forum analysis as well as other courts' analysis on the type of forum that a municipal board meeting operates as, and concluded that the appropriate test for this particular case (involving restrictions on a special board meeting) is whether the restriction is reasonable and viewpoint neutral. The Appellate Court agreed with the federal district court's 2021 decision that the restriction was both reasonable and viewpoint neutral, citing U.S. Supreme Court decisions finding "relevancy" restrictions for municipal meetings to be reasonable. 

The Court also acknowledged that the "germaneness" restriction was a blanket prohibition and did not selectively suppress speech to a single viewpoint, message, or speaker.

The Court also noted that members of the public could address the village board on any topic at regular board meetings since the germaness restriction only applied to special board meetings.

In short, the Court found that the First Amendment challenge to the public comment policy was properly dismissed, and determined that the Illinois constitution provided no greater protection on this issue.

Open Meetings Act Claims

With respect to plaintiff's Open Meetings Act claim, the Court first held that the OMA expressly provides that public bodies can adopt rules on public comment, which is what the village did in this case. In any event, the Court held that even if the rule violated the OMA, it would not establish a First Amendment violation.

Civil Rights Retaliation Claims

The Court also rejected his civil rights claim that the filing of a disciplinary complaint with the ARDC was retaliatory or interfered with his First Amendment rights. The Court found no facts to support that the filing of this complaint actually did deter him from speaking at meetings or filing lawsuits.

Appointment of Outside Counsel

Finally, the Court rejected his argument that the retention of outside counsel was unauthorized or violated the village code. First, the Court found he did not have "standing" to challenge the village's decision since he was not a taxpayer. And, even if he had standing, the Court determined that his complaint was deficient as it did not include facts to support his argument. The Court rejected his argument that outside counsel was an "officer" that was subject to mayor appointment. The Court further rejected his argument that the village manager did not have authority to retain outside counsel, pointing to language in the purchasing ordinance authorizing this action. Finally, the Court noted that the village board ratified the manager's decision to retain outside counsel, curing any deficiency if there was one.

In sum, the Appellate Court found that the case was properly dismissed by the circuit court.

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Appellate Court Upholds Revocation of Firefighter’s Pension Benefits for Felony Conviction

Appellate Court Upholds Revocation of Firefighter’s Pension Benefits for Felony Conviction

  Thursday, April 25, 2024    Julie Tappendorf

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An Illinois Appellate Court recently upheld a pension board’s decision rescinding a firefighter’s retirement pension benefits due to a felony conviction. Trapp v. City of Burbank Firefighter’s Pension Fund.

A city firefighter retired in 2017 after allegations were raised that he had an inappropriate relationship with a high school intern cadet at the fire department. The Pension Fund Board (Board) approved the firefighter's application for a retirement pension in 2017. In 2020, the firefighter pled guilty to knowingly possessing child pornography by soliciting sexually explicit photos and videos from a high school cadet while he was employed as a city firefighter.

The Board held a hearing to determine if the firefighter’s felony conviction forfeited his right to pension benefits under the Pension Code. The firefighter argued the Board lacked jurisdiction to hold a revocation hearing since the Board did not appeal its initial decision awarding the firefighter pension benefits in 2017. The Board rejected that argument, finding that the felony conviction was related to firefighter’s service as a city firefighter, and issuing a decision revoking the firefighter’s pension benefits.

On appeal, the Illinois Appellate Court upheld the Board’s decision revoking the firefighter’s pension benefits. The Court rejected the firefighter’s argument that the Board lacked jurisdiction to hold the revocation hearing, determining that the revocation hearing was a new hearing authorized by the Pension Code and not an appeal of the initial hearing. Based on the Pension Code, the Appellate Court held that a pension board has the authority to hold new hearings to divest a firefighter of pension benefits for conviction of service-related felonies without needing to appeal the initial award of pension benefits.

Post Authored by Tyler Smith, Ancel Glink

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8th Circuit Finds First Amendment Violation in Government Official Blocking User from Twitter Account

8th Circuit Finds First Amendment Violation in Government Official Blocking User from Twitter Account

  Tuesday, April 23, 2024    Julie Tappendorf

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An interesting case about government social media was decided by the 8th Circuit Court of Appeals in January of this year. Felts v. Green. This decision came out before last month's U.S. Supreme Court decision in Lindke v. Freed that adopted a new "test" for when a government official or employee is engaging in "state action" on their personal social media account for purposes of First Amendment challenges. It's still worth reporting on even if it preceded the USSCT ruling because the test applied in the Felts case is pretty similar to the test adopted by the U.S. Supreme Court.

The President of the City of St. Louis Board of Alderman was sued after he blocked an individual from his Twitter account for posting criticism of his support for closing a local jail. The district court ruled against the President, finding that he used his Twitter account primarily for government business and his actions in blocking the user constituted "viewpoint discrimination." The City then appealed.

The 8th Circuit Court of Appeals first rejected the City's argument that the case was "moot" because (1) the President had since resigned and (2) the President had unblocked the user after she filed the lawsuit. The Court determined that a voluntary unblocking of the user did not prevent the same action from happening again and that the City could still be held liable for the former President's actions even after his resignation. 

Next, the Court of Appeals analyzed whether the President's blocking of the  user qualified as "state action" under the civil rights statute, applying a "policymaking authority" test. The Court determined that the President had final authority regarding communication on behalf of the City, and that his decision to block a user from Twitter was a "deliberate choice of a guiding principle and procedure to silence online critics." The Court noted that the President had alternatives such as ignoring the Tweet or replying to the Tweet and his decision to block the user was an exercise of his final policymaking authority as President of the Board of Aldermen. As a result, the Court found the City of St. Louis liable under Section 1983 for the President's actions in blocking the user from Twitter in violation of her First Amendment rights.

The test that the Court of Appeals applied is pretty similar to the test that the U.S. Supreme Court adopted in Lindke, and seemed to focus on the official's "actual authority" and his exercise of that authority. This differs from the "appearance" test that the Supreme Court expressly rejected in Lindke and that the 8th Circuit seemed to rely on in an earlier case involving the social media account of a Missouri State Representative (Campbell v. Reich). That "appearance" test focuses more on the "trappings" of the account or page that is the subject of the challenge (i.e., the account is primarily used for government business, references the official's title/position, etc.) rather than a focus on the authority of the official to communicate or take action on behalf of the government body.

It will be interesting to see how the district and courts of appeals apply the new Lindke test as they face these First Amendment challenges that are likely continue to be filed as government officials and employees increase their use of social media to communicate about government business.

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Administrative Review Law Was the Exclusive Remedy for Backpay Claim

Administrative Review Law Was the Exclusive Remedy for Backpay Claim

  Tuesday, April 16, 2024    Julie Tappendorf

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An Illinois Appellate Court upheld the dismissal of a lawsuit brought by a Sheriff's office employee that sought backpay related to an unpaid suspension in Coduto v. Cook County.

In August of 2016, an employee in a Sheriff's office was suspended without pay after he was arrested for his third offense of driving while under the influence. The Sheriff then filed charges with the Sheriff’s Merit Board seek terminationation of the employee. While the charges were pending, the employee remained on an unpaid suspension, and two years after charges were filed, the Merit Board suspended the employee for 180 days.

The Sheriff appealed and the circuit court upheld the Merit Board’s decision. Neither party appealed this decision. However, the employee subsequently filed a separate lawsuit seeking back pay from the Sheriff's office for the period of time he was on an unpaid suspension in excess of the Merit Board's 180-day suspension.

The Sheriff filed a motion to dismiss the backpay lawsuit based on the following: (1) the employee's coplaint failed to state a valid mandamus claim; (2) the employee's sole recourse was to appeal the Merit Board's decision under the Administrative Review Law; and (3) his claim was brought too late. The circuit court ruled in favor of the Sheriff and dismissed the case. 

On appeal, the Appellate Court upheld the dismissal of the employee's lawsuit, finding that the employee should have raised the issue of backpay at the original administrative hearing and then by filing a  Administrative Review Law action within 35 days of the final decision of the Merit Board, and his  failure to seek relief through administrative review was fatal to his case.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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In the Zone: Appellate Court Determines Zoning Restrictions From 50-Year-Old Case Still Applicable

In the Zone: Appellate Court Determines Zoning Restrictions From 50-Year-Old Case Still Applicable

  Monday, April 15, 2024    Julie Tappendorf

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An Illinois Appellate Court reversed a trial court’s decision that denied a family that owned neighboring property owners the right to intervene in a 1970 lawsuit in order to enforce certain zoning restrictions and remanded the case back to the trial court for further proceedings. Hatch v. City of Elmhurst

In 1970, four landowners successfully sued the City over zoning rules that prevented them from building apartments. The decision forced the City to allow the project subject to certain restrictions which included prohibiting structures on certain areas of the property unless specified adjoining lots were held by common ownership. The court retained jurisdiction over the case to enforce these restrictions.

In 2017, a developer purchased several of those adjoining properties with the intent to construct parking lots. In 2021, the City held several public hearings on the proposed parking lots, and a family that owned an adjoining lot, unrelated to the original landowners, appeared with their attorney at multiple hearings to object to the plan. Ultimately, the City Council passed an ordinance to approve the parking lots. 

In 2023, the family filed a motion to join the 1970 lawsuit and enforce the zoning restrictions against the proposed parking lots, claiming the proposed project violated those zoning restrictions. The trial court denied the request, and the family appealed.

The Appellate Court disagreed with the trial court's decision to deny the family the ability to join the 1970 lawsuit. First, the Court noted that the court had expressly retained jurisdiction to enforce the zoning restrictions, and when those conditions were not met, the family whose property was expressly identified in the 1970 lawsuit had a unique property interest that supported their request to join the case and enforce the restrictions. Second, the Appellate Court rejected the City’s argument that the family's challenge was actually to the 2021 zoning approval and should have been brought within 90 days of the approval of that ordinance under state statute. The Court determined that the family was enforcing their rights under the 1970 case, and not challenging any City action concerning the 2021 ordinance.

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Court Dismisses Due Process Claim Relating to Tobacco License Revocation

Court Dismisses Due Process Claim Relating to Tobacco License Revocation

  Friday, April 12, 2024    Julie Tappendorf

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In AZ SPE, LLC v. City of Chicago, an Appellate Court dismissed a due process lawsuit brought by a company whose tobacco licenses had been revoked.

AZ SPE, LLC (AZ) leases property to gas station operators. Advanced Petroleum, one of AZ’s tenants, received notice from the City's Department of Business Affairs and Consumer Protection (Department) of a hearing to determine if its tobacco retail license should be revoked as a result of alleged sales of tobacco to minors. At the hearing, the City presented evidence of three violations and the hearing officer found Advanced Petroleum responsible and revoked its tobacco license.

Section 4-64-935(c) of the City's Code provides that when a tobacco license is revoked, no tobacco license can be granted to any entity for a year for the premises described in the revoked license. AZ was notified by the Department that the revocation of Advanced Petroleum’s license would apply to AZ’s property and that any new application for a tobacco license for that property would be denied during the one-year ban.

AZ sued, alleging that the City Code deprived it of its property interest because the ban lasts for one-year on the premises, making its property less attractive to prospective tenants. AZ also argued that it was entitled to notice of the revocation hearing and an opportunity to be heard at the hearing under the 14th Amendment as the owner of the property. Finally, AZ argued that punishing the property owner for the actions of its tenant violated its due process rights. 

The Appellate Court first held that the right to sell tobacco is not a protected property right under the constitution so AZ's due process claims were not viable. The Court also noted that the City Code provisions authorizing revocation for selling tobacco to minors were not arbitrary nor discriminatory and were rationally related to the City’s interest in protecting minors from the sale of tobacco products. As a result, the Appellate Court upheld the trial court's dismissal of AZ’s lawsuit against the City.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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In the Zone: Quorum Forum Podcast Ep. 82 - APA-CMS Bar Exam 2024

In the Zone: Quorum Forum Podcast Ep. 82 - APA-CMS Bar Exam 2024

  Thursday, April 11, 2024    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast Episode 82: APA-CMS Bar Exam 2024, has been released featuring a recording of the live planning law session at this year's "bar exam" hosted by the APA-CMS. A summary of this episode is below:

The American Planning Association Chicago Metro Section recently teamed up with Ancel Glink’s Quorum Forum podcast for the ninth annual “Bar Exam” planning law session, a realistic simulated law school experience testing planners and land use professionals on important planning law cases related to social media, short-term rentals, and more! Recorded live at Vintage Bar on Taylor Street on March 13, 2024 with Ancel Glink attorneys Dan Bolin, Megan Mack, and Greg Jones, everyone literally "passed the bar" after attending this session. 

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In the Zone: Illinois General Assembly Considers Land Use Legislation

In the Zone: Illinois General Assembly Considers Land Use Legislation

  Wednesday, April 10, 2024    Julie Tappendorf

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Since the Illinois General Assembly convened in mid-January, several bills concerning zoning and land use have been introduced that may be of interest to our readers. We have summarized a few of these bills below and will provide timely updates as they make their way through the legislative process.

House Bill 4213 – Accessory Dwelling Units

House Bill 4213 was introduced during the General Assembly’s veto session in November, and if passed would create the “Local Accessory Dwelling Unit Act.” The bill seeks to limit local government authority, for both home rule and non-home rule units, to prohibit the building or use of accessory dwelling units (ADUs). However, the bill makes clear that local governments may provide reasonable regulations relating to the size and location of ADUs similar to other accessory structures, so long as the regulations do not “have the effect” of prohibiting them outright.

Senate Bill 2716 – Judicial Review of Zoning Decisions

Senate Bill 2716 seeks to amend Section 11-13-25 of the Illinois Municipal Code to limit the authority municipalities have when considering zoning decisions, including special use and variance applications, text amendments, and map amendments. The first part of the bill proposes that zoning decisions should not be considered legislative decisions, but rather administrative decisions, meaning these zoning decisions would be subject to a different standard of review if challenged in court. The second part of the bill provides for “protection against disregard of the decision-making body’s own ordinances or regulations,” which, if enacted, would appear to be an attempt to limit the exercise of home rule authority. 

Senate Bill 2881 – Annexation Agreements

Senate Bill 2881 seeks to limit municipalities’ ability to annex property. If passed, the bill would require any land subject to an annexation agreement to be contiguous (directly touching) to a municipal boundary. The bill creates uncertainty regarding the status and validity of existing pre-annexation agreements for properties that are not yet contiguous to a municipal boundary, and invites differing interpretations that could result in litigation over these agreements’ terms and conditions.

Additionally, the bill would significantly restrict communities from using annexation agreements to address a variety of issues that have long been regulated by agreement, such as local land use regulations, contributions of land or money to government bodies who are impacted by potential development, and property tax abatements. The bill contains an express list of topics municipalities are not allowed to address in annexation agreements, including mandatory rezoning and terms regarding “nonspecific, future” development projects.

Senate Bill 3680 – Crime-Free Housing

Senate Bill 3680 seeks to amend the Illinois Municipal Code to prohibit local governments from adopting crime-free housing ordinances. The bill, which contains express language clarifying it would apply to limit home rule authority, prohibits any “program, ordinance, resolution, or other regulation” that:

• Penalizes landlords or tenants, guests, or others for contact with law enforcement;
• Requires or encourages landlords to evict tenants or household members for contact with law enforcement, a criminal conviction, or alleged unlawful conduct;
• Requires or promotes the use of criminal background checks for current or prospective tenants;
• Defines nuisance behavior to include contact with law enforcement;
• Requires tenants to secure certificates of occupancy as a condition for leasing rental housing or turning on utilities;
• Creates or promotes the use of a registry of individual tenants for the purposes of discouraging or prohibiting renting to particular tenants;
• Penalizes tenants, guests, or other for contacting the police or emergency services; or
• Requires a crime-free lease addendum that sets forth limitations on any of the above activities.

Many municipalities have regulations concerning crime reduction in housing that would be affected if this bill passes. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Illinois Supreme Court Rules that Home Rule Units Not Restricted From Adjudicating Moving Violations or Traffic Offenses

Illinois Supreme Court Rules that Home Rule Units Not Restricted From Adjudicating Moving Violations or Traffic Offenses

  Tuesday, April 09, 2024    Julie Tappendorf

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On April 4, 2024, in Cammacho v. City of Joliet (2024 IL 129263), the Illinois Supreme Court used a case involving municipal tickets issued to truckers driving overweight vehicles to clarify that Section 1-2.1-2 of the Illinois Municipal Code does not prohibit home rule municipalities from using an administrative hearing process to assess fines in cases involving the movement of motor vehicles or reportable offenses under the Illinois Vehicle Code because Division 2.1 does not contain language restricting home rule authority. However, because the tickets issued to the truckers did not comply with the procedures required by the City's own ordinances, the fines assessed by an administrative hearing officer were reversed.

Division 2.1 of the Illinois Municipal Code (65 ILCS 5/) sets forth a system of administrative adjudication which, at the time the overweight tickets were issued, applied only to home rule municipalities (the statute now permits non-home rule municipalities to adopt Division 2.1 by ordinance). Section 1-2.1-1 excludes two types of offenses from adjudication under Division 2.1: “(i) proceedings not within the statutory or the home rule authority of municipalities; and (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code.”

Two appellate courts had interpreted subsection (ii) of Section 1-2.1-1 as a restriction on home rule powers; according to those appellate decisions, Division 2.1 of the Municipal Code deprived home rule units of the jurisdiction to adjudicate traffic regulations governing the movement of vehicles or reportable offenses under Section 6-204 of the Illinois Vehicle Code.

The Supreme Court noted that the powers of home rule units when exercising any power pertaining to its government and affairs are limited only by the Illinois Constitution itself or preemption of home rule authority by the General Assembly. It also cited Section 7 of the Statute on Statutes (5 ILCS 70/7) to point out that since January 12, 1977, whenever the General Assembly chooses to limit the powers of a home rule unit by statute the legislature is required to insert into the statute specific language limiting or denying the power or function of a home rule unit and specifically setting forth how it is a limitation or denial of home rule powers.

Since Section 1-2.1-1 does not use language explicitly restricting or denying home rule authority, it is not a restriction on home rule powers. The portions of the previous appellate decisions which had held otherwise were explicitly vacated. The Court noted that the language in Division 2.1 stating that only home rule units could use Division 2.1 was simply a grant of authority to home rule units, not a restriction of home rule power (as mentioned above, the statute now grants non-home rule units the authority to use Division 2.1).

The Supreme Court stated that, although home rule units were not required to use Division 2.1 of the Municipal Code to adjudicate ordinance violations, the advantage to doing so is that the findings, decisions, and orders of hearing officers may be enforced in the same manner as a court of competent jurisdiction (65 ILCS 5/1-2.1-8). If another method of adjudication is used, the municipality must first commence an action in circuit court to convert the administrative decision into a collectable judgment. (An adjudication of a moving violation or a reportable offense requires the municipality to register the adjudicative decision with the circuit court if it seeks to enforce the decision as a debt. The strong implication of the decision is that the remedies of Section 1-2.1-8 are not available.) The opinion is silent as to what procedures should be used to report the adjudication to the Secretary of State.

The Court concluded by examining the language of the City's Code of Ordinances. It noted that the Code required police officers to issue a uniform traffic citation “in the case of a reportable offense of the Illinois Vehicle Code…”. Since the drivers who received the tickets for driving overweight trucks were CDL holders, violations of overweight vehicle ordinances were reportable violations under Section 6-204 of the Illinois Vehicle Code. Since the City's own ordinances required such offenses to be prosecuted in the circuit court, the administrative decisions issued by the City’s hearing officer were reversed.

Post Authored by Todd Greenburg, Ancel Glink

 

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PAC Finds Sheriff's Office in Violation of FOIA for Withholding Deceased Person's Records

PAC Finds Sheriff's Office in Violation of FOIA for Withholding Deceased Person's Records

  Monday, April 08, 2024    Julie Tappendorf

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In December 2023, an investigative journalist submitted a FOIA request to a Sheriff's Office seeking police reports about a person who went missing from a local hospital and was subsequently confirmed as deceased by a local coroners officer. The Sheriff's Office denied the request in its entirety claiming the responsive reports were highly personal and private, and the privacy interests of the parties involved in the reports outweighed the requestor and public interest in this information. 

The requestor submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC), claiming that because the missing person is deceased, the decedent has a diminished expectation of privacy and the circumstances surrounding how the decedent went missing is a matter of public interest. In its response to the PAC, the Sheriff's Office also argued that one of the reports was exempt from disclosure because the records related to an ongoing investigation and law enforcement proceedings.

In PAC. Op 24-006, the PAC concluded that the Sheriff's Office improperly withheld the responsive records in violation of FOIA. 

With respect to the Sheriff's Office claim that release would be an unwarranted invasion of privacy, the PAC balanced the journalist's and the public's interest in disclosure against the degree of invasion of personal privacy to the decedent’s family members and determined that the journalist and the public had significant interests in learning about the facts concerning the highly publicized disappearance and death of a missing person, and those interests outweighed the privacy interests of the decedent’s surviving family members.

The PAC acknowledged that the immediate surviving family members of a decedent possess distinct privacy interests in highly sensitive, gruesome, intrusive or anguish-inducing records concerning decedents (e.g., postmortem photographs of decedent’s body). However, the request at issue did not seek graphic images, recordings, or details, nor does the Sheriff's Office have any such responsive records. Instead, because the responsive records to this FOIA request concerned the Sheriff's Office investigation into decedent’s disappearance, which pertains to the public duties of the Sheriff's Office, the responsive reports were not exempt from disclosure in their entirety pursuant to FOIA exemption 7(1)(b) or 7(1)(c).

The PAC also rejected the Sheriff's Office argument that the public interest was diminished because there was no threat to the public, finding that the legitimate public interest in a highly publicized investigation into the disappearance of a community member was not diminished simply because the incidents did not involve threats or harm to the public at large.

The PAC also rejected the Sheriff's claim that the records would interfere with pending or contemplated law enforcement proceedings or obstruct an ongoing criminal investigation. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Finds Firefighter Eligible for Health Benefits and Entitled to Reimbursement for Healthcare Expenses

Court Finds Firefighter Eligible for Health Benefits and Entitled to Reimbursement for Healthcare Expenses

  Thursday, April 04, 2024    Julie Tappendorf

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An Illinois Appellate Court recently held that a firefighter qualified for health insurance benefits under the Public Safety Employee Benefits Act (PSEBA) and reversed a hearing officer's ruling that the Village was not required to reimburse the firefighter for premiums paid to a private insurer. Mertes v. Village of Mt. Prospect

In this case, a firefighter worked for the Village between 1997 and 2012. During that time, he injured his back numerous times in both emergency and non-emergency situations, which ultimately required him to undergo multiple spinal fusions and resulted in the firefighter filing an application for a disability pension. Once he was approved for an on-duty disability pension, the Village informed the firefighter it would no longer cover his health insurance premiums under the Village health insurance plan. In April 2014, the firefighter joined his wife’s private insurance and filed an application for the Village to cover the private insurance premiums.

In 2017, having been paying those premiums since April 2014, the firefighter filed a lawsuit demanding reimbursement for those premiums pursuant to PSEBA. The court ordered the Village to hold a hearing regarding his PSEBA application. At that hearing, the hearing officer determined the firefighter was eligible for PSEBA benefits, but the Village had no obligation to reimburse his private insurance premiums. The hearing officer’s rulings were reviewed by the trial court which upheld both decisions. Both parties then appealed.

On appeal, the Appellate Court heard two issues:

1) The Village appealed the decision that the firefighter qualified for PSEBA benefits; and

2) The firefighter appealed the decision that the Village was not required to reimburse his private insurance premiums when the Village stopped paying premiums on the Village health insurance plan.

On the first issue, the Appellate Court noted that eligibility for PSEBA benefits required first responders to have been catastrophically injured in what was reasonably believed to be an emergency, an unlawful act by another, or while investigating a criminal act. The issue here was whether the firefighter’s various back injuries that occurred during non-emergency situations disqualified him from receiving PSEBA benefits. The Appellate Court held it did not, and what was relevant in this case was how the back injuries he suffered while responding to emergencies contributed to his ultimate disability. 

On the second issue, the Appellate Court stated that the right to PSEBA benefits attaches when a first responder is determined to have been catastrophically injured. The Appellate Court reasoned it went against public policy to deny a first responder reimbursement for premiums while waiting for that determination. As a result, the Appellate Court held that the hearing officer’s ruling that the Village was not obligated to pay the premiums for private insurance was in error. 

Post Authored by Daniel Lev, Ancel Glink

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Upcoming Webinar on Supreme Court's Social Media Decision in Lindke v. Freed

Upcoming Webinar on Supreme Court's Social Media Decision in Lindke v. Freed

  Tuesday, April 02, 2024    Julie Tappendorf

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On April 22, 2024, at 1:00 p.m. Central Time, the Local Government Legal Center (LGLC), will host a webinar on the recent U.S. Supreme Court decision in Lindke v. Freed in which the Supreme Court adopted a new test for when government officials will be considered "state actors" and, therefore, subject to the First Amendment when they post on social media, even on their personal pages and accounts. 

Municipal Minute author and Ancel Glink partner Julie Tappendorf will be speaking at the virtual event along with Amanda Karras, Executive Director of the International Municipal Lawyers Association (IMLA). 

Information about the event and registration details can be found here.

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Court Finds Categorical FOIA Request Unduly Burdensome

Court Finds Categorical FOIA Request Unduly Burdensome

  Monday, April 01, 2024    Julie Tappendorf

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In response to a FOIA request seeking all communications between two municipal police chiefs, a City denied the request in its entirety for several reasons, including that the requested communications between the police chiefs were not “public records” ordinarily kept by the City, and because the FOIA request was unduly burdensome. After the requestors sued, the circuit court ruled in favor of the City, and the requestor appealed.

On appeal, an Illinois Appellate Court upheld the ruling in favor of the City in Shehadeh v. City of Taylorville. The Court held that the FOIA request was unduly burdensome because it asked for all communications between the two police chiefs, the requestor refused to narrow or clarify its "categorical request" to a more manageable proportion, and the City’s burden of complying with the request outweighed the public interest in disclosing the requested records.

The Court found persuasive an affidavit submitted by the City police chief’s stating that the City does not maintain copies of communications sent to or from the police chief’s personal electronic devices, and that the City would be required to obtain records not ordinarily maintained by the City and then review a large number of communications between two police chiefs to find responsive records.

The Appellate Court also characterized the FOIA request as a categorical "fishing expedition" that asked for records largely unnecessary to the requestor’s purpose, and the Court found that the requester had failed to show how disclosure of the requested records served the public interest.

Although the Court ruled in favor of the City, the Court did provide some "best practices" for public bodies relying on the "unduly burdensome" provision of FOIA. The Court noted that the City should have asked the requestor to narrow or clarify his FOIA request in its original response letter, and the City should have more clearly explained the City’s burden of complying with the FOIA request, including providing an estimate of the number of records, or the amount of time involved in obtaining, reviewing, and redacting the records responsive to the FOIA request. 

Because the Appellate Court found that the City properly denied the request as unduly burdensome, the Court declined to address whether the requested records were public records under FOIA.

Post Authored by Eugene Bolotnikov, Ancel Glink

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