Court Upholds Officer's Termination for Violating Department Policies in Social Media Activities

Court Upholds Officer's Termination for Violating Department Policies in Social Media Activities

  Thursday, May 23, 2024    Julie Tappendorf

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Last month, the Wisconsin Supreme Court upheld the termination of a police officer in a lawsuit filed by the officer to challenge his termination. Specifically, the officer claimed that he was terminated in violation of his due process rights after he was investigated for his social media activities. Andrade v. City of Milwaukee Bd. of Fire & Police Commissioners. 

In 2018, the police department arrested a Milwaukee Bucks player, and the incident drew some national attention. Andrade posted about the incident on his personal Facebook page multiple times over the course of a few months, including posts that the police chief found "inappropriate, disrespectful and defamatory." The Bucks player filed a lawsuit against the City and various police officers, and the complaint included references to the officer's social media posts as offensive and racist. The City initiated an internal investigation into the officer's social media conduct, and at the end of the investigation and interviews, charged the officer with violating various department policies. As part of the investigatory process, the police chief consulted with the district attorney's office which expressed concerns about using the officer as a witness in any criminal proceedings because the social media posts could be used by defense counsel to impeach the officer and called into question the officer's trustworthiness and credibility. The district attorney's office went so far as to place the officer on the "never call as a witness" list, meaning the office would not prosecute cases that would rely primarily on the officer's testimony. 

Based on the internal investigation and his communications with the district attorney's office, the police chief issued an order discharging the officer, and provided notice to the City's board of fire and police commissioners which conducted a hearing on the discharge. The board heard testimony and received evidence from both the City and the officer, and at the conclusion of the hearing, upheld the chief's decision to discharge the officer.

The officer appealed to the trial court, which found substantial evidence to support the board's decision. The case made its way to the Wisconsin Supreme Court, which also found in favor of the City, holding that the officer had been provided sufficient due process in the discharge proceedings by being provided an opportunity to present testimony and evidence to the board of fire and police commissioners.

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Appellate Court Upholds Dismissal of FOIA Lawsuit

Appellate Court Upholds Dismissal of FOIA Lawsuit

  Wednesday, May 22, 2024    Julie Tappendorf

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A requestor submitted various FOIA requests to a Public Defender's Office, the States Attorney's Office, and the County Sheriff. The Public Defender’s Office denied the request, arguing that the Public Defender’s Office was not a public body subject to FOIA because it was part of the judiciary. The State’s Attorney’s Office (SAO) and County Sheriff (Sheriff) responded that they did not have responsive records or denied the requests as unduly burdensome and invited the requestor to narrow the burdensome requests. 

The requestor then sued the Public Defender’s Office, the SAO, and the Sheriff claiming that they violated FOIA by denying his requests. The trial court ruled in favor of the public bodies, dismissing the lawsuit.

After the requestor appealed, the Appellate Court upheld dismissal of the lawsuit in Gakuba v. Winnebago County Public Defender’s Office. 

First, the Appellate Court determined that FOIA does not apply to the Public Defender’s Office because it operates as part of the judiciary and does not qualify as a “public body” subject to FOIA. 

Second, the Appellate Court held that the SAO did not violate FOIA because it had submitted an affidavit stating it was unable to locate records responsive to the requestor’s first request after conducting a diligent search. The Court also determined that the SAO properly denied the requestor’s second request as unduly burdensome because the requestor failed to narrow his burdensome request after being provided an opportunity to do so.

Finally, although the Sheriff initially failed to timely respond to the requestor’s FOIA request, the Court determined that the requestor's claims against the Sheriff’s Office were moot because the Sheriff had subsequently produced all responsive records to the request.

Post Authored by Eugene Bolotnikov, Ancel Glink

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FOIA Lawsuit Dismissed Where Requested Records Did Not Exist

FOIA Lawsuit Dismissed Where Requested Records Did Not Exist

  Tuesday, May 21, 2024    Julie Tappendorf

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In response to a FOIA request seeking policies and rules regarding statements by accused persons during custodial interrogations, a Sheriff’s Office responded that it did not have responsive records in its possession or custody. The  requestor sued the Sheriff’s Office alleging that its response violated FOIA, and sought a court order requiring the Sheriff’s Office to produce the requested records. The Sheriff’s Office moved to dismiss the case, supported by an affidavit from its administrative assistant responsible for maintaining its records that the assistant conducted a thorough search of the Sheriff’s Office records and did not find any responsive records. After the circuit court ruled in favor of the Sheriff's Office and dismissed the case, the requestor appealed.

In Hickman v. Mann, the an Illinois Appellate Court upheld the dismissal of the case. The court rejected the requestor’s argument that the circuit court should have struck the assistant’s affidavit because she was not the Sherriff’s Office designated FOIA officer, noting that FOIA’s plain language allows a public body’s FOIA officer or their designee to perform required duties under FOIA, including conducting a reasonably diligent search for records responsive to a FOIA request. Because the assistant had worked for the Sheriff’s Office for 14 years and her duties included maintaining its records, the assistant was authorized to attest that the Sherriff’s Office did not have records responsive to the FOIA request.

The Court also rejected the requestor’s various speculative arguments that the Sheriff’s Office had policies and rules responsive to his request within its possession or custody. First, the court determined that just because a state law contains requirements for recording custodial interrogations in certain situations does not prove that the Sheriff’s Office adopted policies or rules to comply with the law. Second, just because the requestor sent a similar FOIA request to a different agency that had enacted and disclosed a written policy does not establish that the Sheriff’s Office adopted a similar policy. Third, while FOIA requires public bodies to maintain a list of “reasonably current list of all types or categories of records under its control,” a public body’s failure to do so is not actionable under FOIA. The Court concluded that the Sheriff's Office was not required to create records in response to this FOIA request and if the policy that was requested in the FOIA request does not exist, then the nonexistence of the requested documents is a defense to a FOIA lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Rejected Lawsuit Challenging Denial of Local Pandemic Funding

Court Rejected Lawsuit Challenging Denial of Local Pandemic Funding

  Monday, May 20, 2024    Julie Tappendorf

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During the pandemic, a City issued the "Safer at Home Order" which prohibited people from going out except for limited “essential activities.” To help mitigate economic damage as a result of the Order, the City made emergency funds available to non-essential businesses. The available funds were limited and not all of the qualifying businesses were able to receive funding.

A married couple who owned and operated an import and gift store filed suit against the City after their application for the emergency funds grant was denied. They claimed that the City denied their application because the husband had attended a rally protesting the Safer at Home Order, and that denial violated their free speech, equal protection and due process rights. They also alleged that certain statements made by the Mayor in a press statement about why he denied their application were defamatory.

The district court ruled in favor of the City and Mayor, and the business owners appealed to the Seventh Circuit Court of Appeals, which upheld the ruling rejecting the owners' claims in Navratil v. City of Racine. 

The business owners first alleged that the denial was retaliation for the husband exercising his First Amendment rights in attending the rally. The Seventh Circuit rejected that claim, finding that the rally he attended violated valid time, place, and manner restrictions as (1) the Safer at Home Order temporarily banned large public gatherings; and (2) the rally’s permit to gather on state property had been denied due to health hazards. 

The business owners also alleged a violation of their equal protection rights under two theories: (1) a political animus theory (that the grant application was denied due to the Democratic Mayor’s political beliefs about the Republican business owners); and (2) a class-of-one theory (other applicants in violation of the Safer at Home Order were granted funding). The Court rejected both theories, finding a lack of evidence to support the claims.

The business owners then alleged a violation of their procedural and substantive due process rights. The Court rejected that claim as well, finding the owners had no property interest in a purely discretionary government benefit and that they were not deprived of their legal ability to operate their business. 

Finally, the Court rejected the defamation argument on the basis that the Mayor’s statements about the business owners were substantially true and conveyed the Mayor's genuine thoughts and opinions.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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In the Zone: Court Rejects "Class of One" Equal Protection Lawsuit in Land Use Case

In the Zone: Court Rejects "Class of One" Equal Protection Lawsuit in Land Use Case

  Thursday, May 16, 2024    Julie Tappendorf

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In Greenwald Family LP v. Village of Mukwonago, the Seventh Circuit Court of Appeals ruled in favor of a municipality in a "class of one" equal protection lawsuit challenging the municipality's decisions in various interactions with a property owner.

This case has quite a bit of history of interactions between the plaintiff (Partnership) and the Village related to 48 acres of land owned by the Partnership and the Partnership's desire to purchase additional property, ultimately leading the Partnership to file a lawsuit against the Village.

In 2014, the Partnership negotiated a purchase agreement to buy 4 acres of farmland from the Chapman family (Family) who owned 20 acres of farmland. The sale was contingent on Village approval of a land division of that larger parcel. The Partnership was told by the Village that a land division required a developer's agreement that would provide for the installation of certain infrastructure improvements including the construction of an access road, development plans, and a letter of credit to secure the obligation. The application was forwarded to the Village's plan commission, which conditionally approved the land division application conditioned on compliance with the conditions requiring a developer's agreement and development plans. After the Family's contract to sell the 4 acres with the Partnership  fell through because of the failure to meet these conditions, the Village purchased 8 acres from the Family, which included the 4 acres previously contracted for with the Partnership. The Village then constructed the access road, and sold the property to a developer as a development-ready parcel.

The Partnership also owned 47 other acres in the Village. Around 2018, the owner of property adjacent to the Partnership's land was negotiating to sell property to a developer, which triggered a requirement for construction of a new road that would cross a portion of the Partnership's property. After the Village initiated a condemnation action to "take" a portion of the Partnership's land needed for the road construction, the Partnership sued, claiming that the Village's condemnation action did not serve a public purpose and was intended to harm the Partnership. The Partnership alleged that the Village treated it differently than other developers and property owners in its various interactions and disputes. The district court rejected the Partnership's claims, finding a rational basis for each Village decision in dispute, and that ruling was appealed to the Seventh Circuit.

On appeal, the Seventh Circuit applied the two factors for a "class of one" equal protection claim (intentional treatment that is different from others similarly situated and no rational basis for the difference in treatment), and found no basis for the Partnership's claims because it agreed with the district court that the Village had a rational basis for each of its decisions being challenged (second factor). The Court cited to the benefits to the Village from development, including taxpayer benefits, commercial benefits, furtherance of planning objectives, and other community needs. The Court held that the Partnership failed to satisfy its burden to counter any conceivable rational basis for the Village's decisions, and concluded that the Partnership "is a disappointed landowner; it is not a victim of unconstitutional discrimination."

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In the Zone: Changes to Building Code Statutes

In the Zone: Changes to Building Code Statutes

  Thursday, May 09, 2024    Julie Tappendorf

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On August 4, 2023, Governor Pritzker signed PA 103-0510 into law, which makes several changes to two state statutes: the Capital Development Board Act and the Illinois Residential Building Code Act, which municipalities and counties should be aware of.

Changes to the Capital Development Board Act

The new law requires municipalities and counties that have adopted and are enforcing a building code to identify the adopted model code, by title and edition, and any local amendments, to CDB in writing no later than June 30, 2024. Similarly, municipalities and counties adopting a new building code must identify the model code being adopted, by title and edition, and any local amendments, to CDB in writing at least 30 days before the effective date of the building code. Note that the term “building code” under the new law expressly excludes zoning ordinances.

Effective January 1, 2025, the new law will prohibit any person from occupying a “newly constructed commercial building” or a “substantially improved commercial building” in any “non-building code jurisdiction” until the property owner (or its agent) has contracted with a qualified inspector to inspect the building. Under this new law, the inspector must file a certification of inspection with the municipality or county with jurisdiction over the property indicating whether the building complies with certain Code requirements specified in the Act. The certification requirement does not apply to municipal or county inspectors acting in their official capacity. A “non-building code jurisdiction" means an Illinois municipality or county that (i) has not adopted a building code; or (ii) is required to, but has not identified its adopted building code to the Capital Development Board (CDB). 

Also effective January 1, 2025, the law requires any municipal or county building code to regulate the structural design of new buildings, rehabilitation work in existing buildings, and residential buildings in a manner at least as stringent as the applicable baseline code applicable to those buildings. This section also expressly preempts home rule municipalities.

To comply with the Act, municipalities or counties adopting new building codes or amending existing building codes can identify the code being adopted, by title and edition, and any local amendments to the CDB in writing by visiting the CDB’s website, where they can complete and submit CDB’s County Municipal Reporting Form, and check whether their codes are up to date by visiting CDB’s Directory.

The law also requires CDB to: (1) identify the adopted model code(s) by title and edition, whether any local amendments were adopted, and the date municipalities and counties reported this information to CDB on their website; and (2) annually send written notices to municipalities and counties regarding their obligations under the Act. Many municipalities recently received these notices, which notices were sent, in many cases, to the mayor or president.

Changes to Illinois Residential Building Code Act

The new law also requires that any contract to build a “new residential construction” (construction of a single family home or dwelling containing 2 or fewer apartments, condos, or townhomes) in any non-building code jurisdiction incorporate, as part of the construction contract, the applicability of a “residential building code” agreed to by the home builder and the purchaser. If the builder and the purchaser fail to agree to a residential building code or if no residential building code is stated in the contract, the law states that certain default code provisions that are identified in the new law will be adopted as part of the construction contract.

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: City's Application of Parking Requirements to a Church Violated RLUIPA

In the Zone: City's Application of Parking Requirements to a Church Violated RLUIPA

  Wednesday, May 08, 2024    Julie Tappendorf

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A federal district court in Illinois recently held that a City's application of its parking requirements to a church placed a substantial burden on religious exercise under the Religious Land Use and Institutionalized Persons Act (RLUIPA) where the City applied their requirements on a case-by-case basis. Immanuel Baptist Church v. City of Chicago.

Since 2011, a church, located in a planned development within the City, operated with an occupancy of 146 people. The City Code required that buildings used for religious assembly have one off-street parking spot for every eight seats of occupancy, which meant the church was required to have 19 parking spots, which it did not have. In 2016, the church sought to purchase two nearby properties, and its lender requested proof of zoning compliance regarding the off-street parking requirement. For the next several years, City zoning officials and the church had extensive conversations to try to resolve the discrepancy, including options for a church exemption from the parking requirements. In 2018, the church met the off-street parking requirements when it leased a nearby parking lot. In June 2019, the City approved changes to the church’s planned development approvals to eliminate the parking requirement. Ultimately, the church was able to purchase part of one of the two properties it originally sought to develop.

 

The church subsequently sued the City alleging the City’s parking requirement violated RLUIPA’s equal term and substantial burden provisions as well as the U.S. Constitution. After preliminarily resolving two of the three issues, the only issue before the court at trial was whether the City’s parking regulations placed a substantial burden on religious exercise under RLUIPA.

Under RLUIPA's substantial burden provision:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

The district court stated that a substantial burden under RLUIPA can result when a government has procedures in place that permit it to make "individualized assessments" of the proposed uses of religious property. The City argued that RLUIPA did not apply in this case because it did not engage in an "individual assessment. However, the district court rejected the City's argument finding that RLUIPA did apply to the City's application of its parking requirements for religious institutions. Here, the court found that the extensive conversations between the City and church about avoiding the parking regulations were evidence the City's process was not applied mechanically but, instead, with a high degree of discretion. Because the City was making individualized assessments concerning its parking requirements on a discretionary, case-by-case basis, and the burden on the church was significant, the court held the parking requirements placed a substantial burden on the church under RLUIPA. The district court awarded the church $14,590.00 in damages.

Post Authored by Daniel Lev, Ancel Glink

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Quorum Forum Podcast Ep. 83: Real Estate Law 101

Quorum Forum Podcast Ep. 83: Real Estate Law 101

  Monday, May 06, 2024    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast has released Episode 83: Real Estate Law 101 at the National Planning Conference.

In this episode, Ancel Glink’s Quorum Forum podcast was in attendance at #NPC24 in Minneapolis to celebrate six years of podcasting and Ancel Glink's David Silverman’s induction into the AICP College of Fellows, the highest honor bestowed on a member of the American Institute of Certified Planners. During the conference, David joined an esteemed panel for “Real Estate Law 101” to help planners understand the fundamentals of real estate and property law. 

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Court Dismisses Whistleblower Retaliation Claim

Court Dismisses Whistleblower Retaliation Claim

  Friday, May 03, 2024    Julie Tappendorf

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An Illinois Appellate Court recently dismissed a police officer’s whistleblower retaliation claim. Blisset v. City of Chicago.

A police officer was demoted from the rank of Commander to Captain under a police department’s restructuring of its detective units and areas. After being demoted, the officer sued the City under the Whistleblower Act arguing he was retaliated against for disclosing illegal activity, refusing to participate in illegal activity, and that the police department retaliated against him for exposing public corruption or wrongdoing. The police officer alleged his demotion was retaliation for disclosing information to City attorneys about another officer’s attempt to commit perjury and his refusal to participate in a conspiracy to commit perjury.

The Whistleblower Act. 740 ILCS 174/1 et seq., prohibits an employer from retaliating against an employee for disclosing information which the employee reasonably believes discloses illegal activity to the government or law enforcement, or for refusing to participate in an illegal activity. The police officer argued that the Whistleblower Act created a private right of action against the City for retaliatory actions taken against him for disclosing public corruption. The circuit court ruled in favor of the City and dismissed the case, finding that the police officer failed to prove he disclosed information about an activity he reasonably believed to be illegal or that he refused to participate in illegal activity.

On appeal, the Appellate Court upheld the dismissal of the lawsuit. The Court noted that the Whistleblower Act required the police officer to show an invitation to participate in illegal activity and his refusal to participate. Here, the police officer failed to show that he was invited to participate in an illegal activity by any member of the police department or the City. Additionally, the Appellate Court ruled the police officer lacked a reasonable belief that he was disclosing information about an illegal activity as the statements made by the other officer were not made under oath. Finally, the Appellate Court rejected the police officer’s argument that the Whistleblower Act created a private right of action, finding that the Act merely defined actions by the police department that would constitute unlawful retaliation and did not grant the police officer a private right of action. 

Post Authored by Tyler Smith, Ancel Glink

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DOJ Issues New Rules on the Accessibility of Web Content

DOJ Issues New Rules on the Accessibility of Web Content

  Thursday, May 02, 2024    Julie Tappendorf

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In April, U.S. Department of Justice announced new regulations that require state and local governments to comply with Web Content Accessibility Guidelines (Accessibility Rules). Title II of the Americans with Disabilities Act requires that state and local governments ensure that people with disabilities have an equal opportunity to benefit from programs, services, and activities. The new Accessibility Rules serve to supplement the protections under Title II, which previously covered local governments’ website content and online activity, but did not impose technical standards of conduct. The Department of Justice has explained that the new Accessibility Rules will ensure people with disabilities are able to engage in virtual services provided by state and local governments, including their ability to register to vote online, access public transportation schedules, and submit requests to their representatives.

The technical standards imposed by the new Accessibility Rules, referred to as Level AA, are an intermediary standard of compliance that was created by the Americans with Disabilities Act. In order to comply with the Level AA standard, government entities must offer alternative text for images displayed onscreen, transcripts to be posted alongside videos, a heightened color contrast, and consistent navigation across the local government's website or mobile app.

The Accessibility Rules will be imposed on different units of government gradually, depending on the number of constituents served by the government entity, the medium of web content (a website or mobile app, for example), and the relative importance of the subject matter. For example, the Rule requires that if the government body serves fewer than 50,000 persons, those entities have three years to comply. Government bodies that serve more than 50,000 persons only have two years to come into compliance with the new standards. The Accessibility Rules cover both web content and mobile apps, but provide exceptions for archived content, preexisting documents and social media posts, reposted content originally created by a third party, and individualized password-protected documents.

See more information about the Accessibility Rules here, and the full text of the Accessibility Rules here. 

Post Authored by Alexis Carter & Erin Monforti, Ancel Glink

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In the Zone: Supreme Court Holds that Legislatively Enacted Impact Fees Are Not Exempt from Nollan and Dolan

In the Zone: Supreme Court Holds that Legislatively Enacted Impact Fees Are Not Exempt from Nollan and Dolan

  Wednesday, May 01, 2024    Julie Tappendorf

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The U.S. Supreme Court recently issued an opinion finding that legislatively enacted impact fees are not exempt from the "takings" analysis required by Nollan and Dolan. Sheetz v. County of El Dorado, California. 

The owners of property in the center of the El Dorado County, California that was zoned in the low density residential district applied for a building permit to build a small, prefabricated house. As a condition to the permit, the County required the owners to pay a $23,420 traffic impact fee as required by the County's General Plan rate schedule. The owners paid the fee under protest and received the permit, but then sued the County in state court.

The owners claimed that the County's condition of a building permit on the payment of a traffic impact fee constituted an unlawful “exaction” in violation of the Takings Cause of the Fifth Amendment. The owners relied on the Supreme Court’s rulings in Nollan v. California Coastal Comm’n and Dolan v. City of Tigard, which they argued required the County to make an individualized determination that the fee imposed on their permit was necessary to offset traffic congestion attributable to their specific development. They claimed that the County's traffic impact mitigation fee was not calculated based on any “individualized determinations” as to the nature and extent of the traffic impacts caused by a particular project on state and local roads and, instead, the fee was established by a formula based on the location of the project (i.e., geographic zone within the County) and the type of project (e.g., single-family residential, multi-family resident, general commercial).

The trial court rejected the owners' claims and the California Court of Appeals affirmed. The Court of Appeals held that the Nollan/Dolan takings test applies only to permit conditions imposed on an individual and discretionary basis and that fees imposed on “a broad class of property owners through legislative action” such as the traffic mitigation fee adopted by the County did not need to satisfy the Nollan/Dolan takings tests. 

This case made its way to the U.S. Supreme Court. That Court recognized the government's authority to regulate land use and condition a building permit to further a “legitimate police-power purpose.” However, the Court held that legislatively-imposed fees are not exempt from the Takings Clause and could violate the Fifth Amendment if they do not have an “essential nexus” to the government’s land use interest and “rough proportionality” to the development’s impact on that interest.

The Supreme Court noted that the text of the Takings Clause does not distinguish between legislative and administrative permit conditions and either could constitute an unconstitutional condition on land-use permits. The Supreme Court  did not determine the validity of the County’s impact fee in this case, or the degree of specificity required when tailoring an impact fee and instead sent the case back to the state court for further proceedings. 

It is important to note that the Supreme Court's ruling does not prohibit local governments from enacting and enforcing reasonable permitting conditions, including imposing legislative-enacted impact fees on a development. However, local governments will want to make sure that their impact fees comply with the nexus/rough proportionality test set out in Nollan and Dolan. 

Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink

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