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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, June 27, 2024

Supreme Court Issues Ruling in Mayor's Appeal of his Bribery Conviction

The U.S. Supreme Court issued an opinion interpreting the federal statute that prohibits state and local government officials from accepting bribes in Snyder v. United States

Section 666 of Title 18 (a federal law) makes it a crime for state and local officials to "corruptly" solicit, accept, or agree to accept "anything of value from any person, intending to be influenced or rewarded" for an official act. A conviction under this federal law is punishable by up to 10 years imprisonment.

A mayor of an Indiana city was charged under this anti-corruption federal law for accepting a $13,000 payment from a trucking company after the company had been awarded $1 million in contracts from the city. Ultimately, the mayor was convicted under this federal law and sentenced to 1 year, 9 months in prison. His conviction was upheld by the Seventh Circuit Court of Appeals, and he ultimately appealed to the U.S. Supreme Court.

The U.S. Supreme Court reversed the lower court rulings, holding that Section 666 of federal law criminalizes bribes, not gratuities. The Supreme Court distinguished between the two, finding that a conviction under Section 666 requires the government to show that the state or local official had a corrupt state of mind and accepted or agreed to accept a payment intending to be influenced in an official act. A gratuity, the Supreme Court said, is given as a token of appreciation after the official act. Here, the Court found that the mayor's acceptance of the $13,000 payment after the contract was awarded to the trucking company qualified as a gratuity, and not a bribe, so Section 666 did not apply. 

The Supreme Court made it clear that although a gratuity or reward offered and accepted by a state or local official after the official act does not violate this particular federal law (section 666), that conduct could be unethical or illegal under other federal, state, or local laws. 

The case included a dissenting opinion, in which three Justices argued that Section 666's use of the word "rewarded" meant that the statute should apply in this situation, where, the dissent said, the mayor "steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check."

Tuesday, June 25, 2024

PAC Finds FOIA Violation in 8th Binding Opinion of 2024

A FOIA requester sought information about certain properties, including unit addresses and whether the units were occupied or vacant. The public body disclosed responsive records, but partly redacted street addresses for vacant units pursuant to Section 7(1)(v) of FOIA, asserting that disclosing the full street addresses would threaten community safety and make the buildings targets for squatters and other illegal activity.

After the requestor submitted a request for review with the Public Accessor Counselor (PAC), the PAC concluded that public body improperly redacted vacant unit street addresses under FOIA. PAC Op. 24-008.

The PAC determined that the exemption contained in Section 7(1)(v) of FOIA narrowly authorizes redacting records that consist of or depict (1) existing vulnerability assessments, security measures, or response policies or plans, (2) that are created for the purpose of identifying, preventing, or responding to potential attacks on a community or its infrastructure, and (3) when disclosing the vulnerability assessment, security measure, or response policy or plan could reasonably be expected to expose the vulnerability or jeopardize the effectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public.

Although the public body argued it redacted street addresses as a security measure to protect its vacant properties, the PAC disagreed with the scope of the public body’s redactions, finding that the street addresses for vacant public housing units did not qualify as existing vulnerability assessments, security measures, or response policies or plans to justify redaction under this FOIA exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, June 24, 2024

PAC Issues 7th Binding Opinion on OMA Complaint

In PAC Op. 24-007, the Public Access Counselor of the Attorney General's Office (PAC) reviewed and considered a complaint that a public body violated the OMA. Specifically, the complainant alleged that a village board violated the OMA by (1) improperly taking final action to authorize the purchase of a truck without listing that item on the agenda and (2) allowing a member of the village board to attend several board meetings electronically. 

With respect to the first claim, the PAC found the village board in violation of the OMA for not sufficiently describing the purchase of a vehicle on the meeting agenda. The PAC noted that the village board voted on the purchase under the agenda item "Report from the Superintendent of Public Works," after the Superintendent informed the board that he had found a used truck that the board could purchase. The PAC determined that voting on this purchase without adequately describing it on the meeting agenda violated section 2.02(c) of the OMA  meeting which requires that 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." (note that the opinion is not clear whether the purchase of the vehicle was made pursuant to an ordinance or resolution, although the PAC has taken a very broad interpretation of this statutory provision in past opinions). In any event, the PAC acknowledged that because the village board re-voted on the vehicle purchase at a subsequent meeting where it was listed on the meeting agenda, no further action was necessary to remedy the violation.

In the second claim, the individual who filed the complaint claimed that the board member "purposefully took a job that requires him to be out of town" and since the job was within an hour's drive of the meeting location, the board member should not be allowed to attend board meetings remotely. The PAC disagreed, finding that one of the reasons under the OMA that allows a board member to attend a meeting remotely is for "employment purposes" and the OMA includes no limiting language on the nature or frequency of a member's ability to attend meetings remotely for employment purposes so long as the board authorizes remote attendance in accordance with its adopted rules. The PAC also noted that the OMA does not condition remote attendance for employment purposes on a board member demonstrating that it would not be feasible to commute to the meeting. As a result, the PAC determined that the board did not violate the OMA by allowing the board member to attend meetings remotely for employment purposes.

Tuesday, June 18, 2024

General Assembly Sends Major Changes to Sales Tax Laws to the Governor

As part of Governor Pritzker’s proposed budget, he lobbied for the elimination of the “grocery tax,” which the Governor argues is a regressive tax which disproportionately affects members of the community with the lowest income. The grocery tax is a part of the State’s sales tax that applies to “food purchased for consumption off the premises where it is sold,” or groceries. By comparison, a “food and beverage tax” applies to food purchased for immediate consumption on the premises from where it is purchased – like from a restaurant.  Because the grocery tax comprises a part of the tax revenue the State shares with cities and villages, the elimination of the grocery tax would result in a reduction of local revenues.

House Bill 3144 was adopted by the General Assembly on June 3, 2024, and would eliminate the grocery tax as of January 1, 2026. HB 3144 would also create the Municipal Grocery Occupation Tax Law that permits all Illinois municipalities to levy a local grocery tax of up to 1% beginning after January 1, 2026. The Municipal Grocery Occupation Tax would be administered, collected, and distributed by the State, as with other local sales taxes. October 1, 2025 is the proposed deadline for municipalities to adopt and file a tax ordinance with the Department of Revenue if they want to begin collecting the local grocery tax on January 1, 2026.

While the local grocery tax is designed to achieve revenue neutrality, House Bill 3144 makes an even more important change for non-home rule cities and villages. Currently, Section 8-11.1-1 of the Illinois Municipal Code requires non-home rule municipalities to obtain referendum approval as a condition of levying a local sales tax. Upon the enactment of HB 3144 into law, non-home rule municipalities will be able to levy a local sales tax without voter approval. The non-home rule sales tax can be levied in 0.25% increments and remains capped at 1%. The local sales tax can be commenced either January 1 or July 1 each year, provided the ordinance enacting the tax is filed with the State by October 1 or April 1, respectively. 

Keep an eye on the status of HB 3144 to see whether the Governor approves this legislation.

Post Authored by Adam Simon, Ancel Glink

Monday, June 17, 2024

Time is Money: U.S. Department of Labor Raises the Bar on Overtime Exemptions

The U.S. Department of Labor (Department) has issued a final rule that changes the salary threshold necessary for white-collar employees to be classified as exempt from overtime requirements under the Fair Labor Standards Act (FLSA). For a white-collar employee to be considered exempt under the FLSA, the following three criteria must be met:

   (1) The employee must be paid a fixed salary;

   (2) The salary must meet a minimum specified amount; and

   (3) The employee must primarily be engaged in executive, administrative, or professional duties.

The overtime rule raises the salary-threshold levels in two phases. Beginning July 1, 2024, the threshold initially increases from $684 per week to $844 per week. The second phase begins January 1, 2025, at which time the threshold increases to $1,128 per week (equivalent to $58,656 per year).

But the increases don’t stop there. In drafting the rule, the Department recognized the need to update earnings thresholds regularly. As a result, the threshold will automatically increase every three years beginning July 1, 2027. The automatic increases are based upon wage data at the time of the update.

While lawsuits challenging the Department’s authority to increase the overtime threshold have been filed, it would be prudent for employers to examine the salaries of existing exempt employees and remain prepared to affect salary increases should those challenges fail. 

Post Authored by Kevin Sterk, Ancel Glink

Wednesday, June 12, 2024

Court Upholds Injunction Against Water Shut Off to Mobile Home Park

In 2023, a municipality sent notice to the owner of a mobile home park and the residents in the park that it would be shutting off water to the park for nonpayment of water services. At that time, the mobile home park had a delinquent water account with the city for $858,447. The mobile home park was served by a single water main, and the owner of the park was responsible for payment of water services, not the individual residents of the park, and a shutoff of water would impact all residents in the mobile home park. One of the residents of the mobile home park filed a motion for a temporary injunction to stop disconnection, which was granted by the trial court. 

The city appealed the injunction to the Illinois Appellate Court, which upheld the trial court's order. Hammer v. City of Blue Island. The Appellate Court held that the status quo in this case was the continued provision of water service to the residents in the mobile home park, and that the balance of the equities in this case favored the residents because of the substantial harm if the water were shutoff while the case moved forward because that would render the residences uninhabitable. The Court also noted that the City's delay in taking action on the unpaid bill for two years, without notice to the tenants, exacerbated its own injury and harmed innocent tenants who were not aware that the park's water bill was delinquent. Finally, the Court acknowledged that the injunction was just preliminary relief, and that the city would still have the opportunity to defend the case. 

While this case only involved preliminary relief and the case will now move forward for the city to present its defenses against the lawsuit, this court ruling may provide some guidance to municipalities in similar situations to consider seeking legal remedies sooner rather than letting a delinquency continue for several years and to notify both the owner and tenants of water bill delinquencies.

Tuesday, June 11, 2024

Court Rules in Favor of Sheriff's Office in FOIA Lawsuit

In response to several FOIA requests asking for transcripts of conversations between Sheriff’s Office personnel and police dispatchers, a Sheriff’s Office released responsive records subject to applicable redactions. The requestor then sued, seeking a court order to compel the release of  records allegedly withheld from disclosure and to explain the FOIA exemptions used by the Sheriff’s Office to withhold or redact certain records. The lawsuit also asked the court to impose civil penalties against the Sheriff’s Office for allegedly willfully and intentionally failing to comply with the FOIA requests. 

After the lawsuit was filed, the Sheriff’s Office released additional records responsive to the requests, and explained the FOIA exemptions used to redact information. The trial court dismissed the lawsuit as moot since records had since been released and denied the request for civil penalties, finding that the Sheriff’s Office did not willfully or intentionally fail to comply with FOIA.

On appeal, the Illinois Appellate Court also ruled in favor of the Sheriff's Office. Harsy v. Perry County Sheriff’s Office. First, the Appellate Court agreed that the lawsuit was moot since the Sheriff’s Office had disclosed responsive records and properly cited exemptions to redact or withhold records. The Appellate Court also rejected the requester's "bad faith" argument since the Sheriff’s Office promptly issued refunds to the requestor for all claimed overcharges after the lawsuit was filed and failed to show the Sheriff's Office willfully or intentionally failed to comply with FOIA.

The Court also rejected the requestor’s argument that the trial court should have ordered the Sheriff’s Office to provide an index of redacted or withheld records, finding that because the requestor failed to request an index before the trial court’s in camera inspection, the necessity for an index after the circuit court’s in camera review was moot.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, June 10, 2024

Friday, June 7, 2024

Court of Appeals Upholds Injunction Against a Library's Removal of Controversial Books

The Fifth Circuit Court of Appeals issued an opinion on June 6th upholding a court's issuance of a preliminary injunction against a library in a First Amendment challenge to the library's removal of controversial books. Little, et al. v. Llano County, et al..

In 2021, Llano County, Texas residents contacted the county commissioners to complain about books in the children's section of the library that they claimed were pornographic and overtly sexual. According to the court opinion, the residents were specifically concerned with several books about “butts and farts." The chair of the county commissioners and another member of that body directed the library director to remove the challenged books from the shelves. The director complied. In response to additional complaints, the chair contacted the library director about other books that “depict any type of sexual activity or questionable nudity." That communication was accompanied by a list put together by a state representative of books he referred to as "pornographic filth." By the end of 2021, 17 books had been removed from the library based on resident complaints.

In 2022, the library board was dissolved and replaced by a new board. The chair of the county commissioners appointed to the new board two members who had been involved in the book removal complaints. The new library board then implemented several policy changes, including prohibiting the library director from attending board meetings and requiring the director to seek approval from the library board before purchasing any new books for the library.

Seven library constituents then filed a lawsuit in federal court against the county commissioners, the library director, and the library board members claiming that the removal of the 17 books from the library was because they disagreed with the books’ content in violation of the First Amendment. They asked the district court to impose a preliminary injunction while the case moved forward that would require, among other things, that the library restore the 17 books.

The district court granted the preliminary injunction request and ordered the library to restore the removed books to library shelves while the case continued through the process. The district court found that the patrons had adequately pleaded a First Amendment claim because the library's likely motivation in removing the books was “a desire to limit access to the viewpoints” with which they disagreed. The court noted that while public libraries have “broad discretion” to curate the content of their collections, their discretion is not absolute. 

The library appealed the injunction to the Court of Appeals. The Court of Appeals analyzed the First Amendment cases, focusing on the U.S. Supreme Court ruling in Board of Education, Island Trees Union Sch. Dist v. Pico, 457 U.S. 853. In that case, a plurality of the Supreme Court held that school officials could not remove books from a school library's shelves simply because they dislike the ideas contained in those books, and that if their intention was to deny access to ideas they disagree with, and that intent was the decisive factor in their decision, then their exercise of discretion would violate the First Amendment. 

Based on the holding in the Pico case and other relevant cases, the Court of Appeals held that although librarians can consider the content of books in making curation decisions, that discretion must be balanced against patrons' First Amendment rights, including the right to receive information and ideas. If the motivation of a library official to remove a book is the desire to deny access to ideas to which they disagree, and that intent is the substantial reason for the decision, then the decision implicates First Amendment rights.

The Court of Appeals acknowledged that there are many other reasons why books may be removed that have little to do with a disagreement with the books' content. For example, the Court said a library could remove older editions of a dictionary, or books that are in a dilapidated condition, or books that hadn't been checked out in years based on lack of interest and poor circulation history, without acting unconstitutionally. However, the Court did not find that there was any evidence that the library's rationale for their book removal decisions in this case fell into any of these rationales.

Instead, the Court of Appeals found that the district court's preliminary injunction was based on its reasonable conclusion that the 17 books were removed after constituents complained they were "pornographic filth," and the library's substantial motivation to remove the was to deny access to particular ideas. The Court of Appeals found the evidence to be clear that the library director likely weeded these books because she was told to do so by those who disagreed with their message.

In conclusion, the Court of Appeals stated as follows:

Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree. Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief. 

The Court of Appeals then ordered the library to restore the disputed books to "publicly visible and accessible shelves" in the library, update the library's catalog to reflect that these books are available for checkout, and enjoined the library from removing any books from the shelves without first providing the constituents who brought the lawsuit with documentation on the library officials responsible for making that decision and the reasons for the removal. 

Note that this appeal involved a preliminary injunction, and did not decide the substance of the case, so the plaintiffs' First Amendment claims will now move forward at the district court, while this injunction stays in place during those proceedings.

It is worth noting that the case is quite lengthy, and a good portion of the case is devoted to a dissenting opinion that argues that the library's decision in curating its materials is government speech, and concludes that the majority's opinion has turned courts into the "library police."

It will be interesting to see how this case plays out at the district court when the case returns for further proceedings but also whether the case ultimately makes it way to the U.S. Supreme Court since this ruling is only precedential in the Fifth Circuit Court of Appeals.

Wednesday, June 5, 2024

Defamation Claim Against City Inspector General Dismissed

A former city councilmember filed a defamation case against a city inspector general and other city defendants. The complaint alleged, among other things, that the inspector general defamed him when he authored and then transmitted a report to the mayor that accused him of committing the criminal offense of conspiracy. The complaint also alleged that the city's ordinances authorizing the mayor to appoint an inspector general violated state law. 

The inspector general filed a motion to dismiss the complaint arguing that his communications were privileged, that he had immunity under the Tort Immunity Act for his official actions in conducting the investigation and authoring the report, and that the complaint did not state a claim for defamation because it did not allege that he published the report to a third party. The trial court dismissed the complaint, finding that the Tort Immunity Act immunized the inspector general.

On appeal, the Appellate Court first held that the allegations challenging the legality of the city ordinances were insufficient to overcome the presumption of validity of a city's ordinances, so dismissal of that allegation was proper. As to the application of the Tort Immunity Act, the Appellate Court disagreed with the trial court that it applied to the inspector general in this case, finding that the inspector general was not covered by the cited sections of the Act because he was not an officer or an employee of the city but instead, an independent contractor. However, the Appellate Court upheld the dismissal of the case on other grounds, specifically that the inspector general had tendered the report to the mayor in the discharge of his official duties, and that action was covered by absolute privilege and immunity. McFarland v. O'Dekirk, et al.

Tuesday, June 4, 2024

Court Upholds Zoning Approvals for Wind Farm Project

An Illinois Appellate Court recently ruled in favor of a county and developer in a zoning dispute brought by residents to challenge the approval of a wind energy farm project in the county. Erickson et al. v. Knox County Wind Farm LLC, et al.

A wind farm developer filed an application with the county for approval of a conditional use permit and a zoning variation to allow the construction and operation of a wind energy farm. The county ZBA approved the variation and recommended that the county board approve the conditional use permit. After the county board approved the conditional use permit, a group of residents filed a lawsuit against the county and the wind farm developer asking the court to overturn the county board's approval. Specifically, the residents claimed the approvals violated their procedural due process rights, the approvals were arbitrary and capricious under the LaSalle factor standards, the ZBA failed to issue findings of fact when the variation was approved, and the application did not meet the variation standards.

The trial court ruled in favor of the county and developer, and the residents appealed. On appeal, the Appellate Court upheld the rulings in favor of the county and developer.

First, the Appellate Court held that the residents had actual notice of the ZBA hearing and a meaningful opportunity to be heard at that hearing (and, in fact, participated in the hearing). The fact that notice came shortly before the hearing did not violate their procedural due process rights and the fact that the developer had more time to prepare for that hearing than the residents was not relevant to the residents' due process rights. The Court also rejected the residents' argument that the hearing should have been continued because their expert witnesses were not available on the hearing dates finding that they had time to provide additional witnesses, and that they did present evidence and cross-examined the developer's witnesses at those hearings. In short, the Court held that the residents were not denied due process.

Second, the Court rejected the residents' argument that the approvals were arbitrary and capricious under the LaSalle factors test, finding that the residents failed to specifically argue how each LaSalle factor applied to their case and that they were unable to overcome the presumption of validity of the county zoning approvals.

Third, the Court found that the ZBA did, in fact, issue findings of fact after it granted the variation and supplemented those findings after the lawsuit was filed. Since findings were properly made before the court considered the merits of the lawsuit, the Court found no prejudice to the residents.

Fourth, the Court rejected the residents' argument that the county was required to provide them with due process before it issued building permits for the wind farm, and also rejected their argument that the building officials had been unlawfully delegated authority to issue permits.

Finally, the Court upheld the ZBA's approval of the variation, finding sufficient evidence in the record that the application met the variation standards.

Monday, June 3, 2024

Appellate Court Addresses Claims Relating to Confidentiality Provision in Settlement Agreement

A high school district was sued by a student and parents regarding a settlement agreement between the parties. The student and parents claimed the school district released confidential information about the settlement in response to FOIA requests and otherwise that caused them injury and breached the confidentiality provision in the settlement agreement. The school district filed a motion to dismiss the case based on several arguments, including that the Tort Immunity Act applied to several claims. The trial court dismissed the entire case, and the student and parents appealed.

On appeal, the Illinois Appellate Court upheld the dismissal of three of the counts in the lawsuit based on the Tort Immunity Act. The Court noted that Section 2-107 of the Tort Immunity Act provides that a local public entity is immune from liability for injuries caused by "the provision of information either orally, in writing, or by computer or any other electronic transmission..." Here, the Court found that the tort claims against the school district for public disclosure of private facts and intentional and negligent infliction of emotional distress were covered by this section of the Tort Immunity Act, and the trial court's dismissal of these claims was proper.

However, the Court disagreed with the trial court on its dismissal of the breach of contract count, finding that this claim could move forward to the next stage of litigation to flesh out the factual disputes between the parties as to when disclosures were made and whether the disclosures constituted a breach of the confidentiality provisions of the settlement agreement.

Plaintiff 1, et al. v. Board of Education of Lake Forest High School District 115, 2024 IL App (2d) 230173.