Court Upholds Sergent’s Suspension for Violating Department’s Social Media Policy

Court Upholds Sergent’s Suspension for Violating Department’s Social Media Policy

  Wednesday, July 31, 2024    Julie Tappendorf

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In September 2019, a newspaper published an article accusing a corrections sergeant for the Illinois Department of Corrections (Department) of posting “offensive” and “Islamophobic” content on Facebook. Soon after, the sergeant was suspended from his position at the Department, and filed a lawsuit to challenge the action. In Hicks v. Illinois Department of Corrections, the Seventh Circuit Court of Appeals held that the suspension did not violate Hicks’s free speech or due process rights.

At the time the article was published, the sergeant’s profile was public and listed the Department as his employer. The day after the article ran, the Director of the Department sent an email to all staff reminding them of the Department’s social media policy and code of conduct. A Department investigator then interviewed the sergeant, who stated that his personal views did not have an impact on his work. The investigator concluded that the posts violated the Department's code of conduct and reflected negatively on the Department and its mission. The Department convened a board hearing and recommended a 10-day suspension.

After the sergeant was suspended, he sued the Department and several Department officials involved in the suspension process, alleging violations of his right to free speech and due process. The district court determined that the Department did not violate these rights because the sergeant took deliberate steps to link his Facebook account to his employer and the posts clearly violated the code of conduct and social media policy.

On appeal, the Seventh Circuit first considered whether the Department violated the sergeant’s right to free speech under the First Amendment when it suspended him. The Court noted that the government, when acting as an employer, has greater leeway to moderate the speech of its employees than when the government is acting to restrict the speech of the general public. The Court applied a balancing test to determine whether the sergeant’s free speech interests outweighed the Department’s interest in promoting effective and efficient public services. The Court found that the social media posts could interfere with the Department’s operations, impact the sergeant’s ability to operate within the chain of command, and erode public trust in the Department. As a result, the Seventh Circuit agreed with the district court and held that the Department did not violate Hicks’ right to free speech when it suspended him.

The Court also held that the Department’s code of conduct was not vague and did not violate Hicks’ right to due process. The Department’s code of conduct prohibited activities unbecoming of a government employee and activities that would reflect unfavorably on or impair the Department’s operations. After a review of the sergeant's Facebook posts, the Court concluded that the code clearly prohibited the sergeant’s social media activity and there was no due process violation. 

Post Authored by Alexis Carter & Erin Monforti, Ancel Glink 

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Court Dismisses Lawsuit by Former Police Chief

Court Dismisses Lawsuit by Former Police Chief

  Tuesday, July 30, 2024    Julie Tappendorf

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An Illinois Appellate Curt upheld the dismissal of a lawsuit filed by a former chief of police against village officials in Ritz v. Neddermeyer and Grace.

The plaintiff was employed by the village under a three-year contract to serve as its police chief. Just before the contract was about to expire, the plaintiff (still serving as chief) met with the village president, who asked him to continue as police chief until a new village administrator was hired. Plaintiff claims that during this meeting, the village president told him he “would be favorably considered for a contract extension given his exemplary service.”

Sometime after the new administrator was appointed, plaintiff was told that if he did not resign as police chief, he would be terminated. He did resign and then filed a lawsuit claiming that the village president and administrator conspired against him to commit “fraud in the inducement.” Specifically, he claimed he relied to his detriment on the president’s statement in their meeting and that he had been fraudulently induced to stay on as police chief.

The trial court dismissed the case, and plaintiff appealed. On appeal, the Appellate Court upheld the dismissal, finding that his claims were not actionable. First, the Court held that the president’s statements did not offer any guarantee of continued employment, so his reliance was not reasonable. The Court also found no fraud, nor conspiracy in the village officials' actions. The Court also determined that the individual defendants had immunity for their actions under the Tort Immunity Act because employment decisions are inherently discretionary policy decisions.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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First Amendment Auditor Case Decided in Massachusetts

First Amendment Auditor Case Decided in Massachusetts

  Monday, July 29, 2024    Julie Tappendorf

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A recent case decided by the First Circuit Court of Appeals regarding a lawsuit brought by a citizen-journalist (sometimes referred to as a First Amendment auditor) provides some interesting insight on how a federal court views a citizen recording or filming public officials or employees, even if the case is not binding on Illinois courts.  Berge v. School Committee of Gloucester, Mass, et. al.

In 2022, a citizen-journalist went to the local school superintendent's office to buy tickets to his child's sold-out play. He stated his objective as wanting to ask school officials why the school was capping the number of attendees where the state had previously lifted its COVID-19 mandates. While at the school offices, he was visibly filming as he spoke with various school employees about his objections to the school's policy. One of the school employees asked him to stop recording, and another employee closed his door when the citizen refused to stop filming. After the citizen left the building, he uploaded the recording to Facebook. 

A school employee sent a letter to the citizen-journalist within a few hours of the recording being posted to social media demanding that it be removed. The letter claimed that the recording violated a state law that requires two-party consent to record others.

The citizen-journalist then filed a lawsuit against the school committee and three of the school employees claiming that their letter and conduct violated his First Amendment rights. He asked the court to award him damages and to issue an order to stop the school defendants from continuing to threaten him to remove the recording. After the school was served with the lawsuit, the school's attorney contacted the citizen to inform him that the school committee would not take any action against him relating to the recording and the  letter the school sent to him was "revoked."

The lawsuit was initially dismissed by the district court on the basis that the employees had qualified immunity for the First Amendment claims, and on mootness grounds since the school had stated it would not take action against the citizen-journalist for the recording. The citizen then appealed.

On appeal, the First Circuit Court of Appeals reversed the district court on the first claim, finding that the individual school defendants did not have qualified immunity for the First Amendment claims, for the following reasons:

First, the Court found that the state law prohibiting recording without two-party consent only applied to secret recordings, and did not apply in this case where the citizen-journalist was openly recording in public areas of the school offices.

Second, the Court held there is a "right to publish" under the First Amendment, and the citizen-journalist's posting of his recordings of his discussions with school officials fell squarely under that constitutional protection. The Court found that his questioning of school officials about the school's COVID-19 policy was a "matter of public concern" that he had a constitutional right to publish by posting his recording on Facebook. 

Third, the Court determined that the school employees should have known that the posting of the recordings involving matters of public concern (i.e., his objection to the school's COVID-19 policies) were protected by existing law, so they had no qualified immunity for the First Amendment retaliation claims in the lawsuit.

Although the Court did allow the First Amendment retaliation claims to move forward, it upheld the district court's dismissal of the other claims based on "mootness" since the school had already provided the relief that the plaintiff was asking for when the school confirmed it would not challenge the legality of the recordings themselves.

As noted above, this case is not binding in Illinois, but it is instructive to government officials and employees on the potential protections for the publication of recordings of citizen encounters with public officials or employees in public areas where an encounter relates to a matter of public concern.  

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Election Calendar Changes for Spring 2025 Elections

Election Calendar Changes for Spring 2025 Elections

  Tuesday, July 23, 2024    Julie Tappendorf

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On July 12, 2024, the Illinois State Board of Elections (ISBE) released its Abbreviated Calendar of Dates for the 2025 Consolidated Primary Election and the 2025 Consolidated Election which can be found here. While the ISBE abbreviated calendar can be a helpful guide for local elections, candidates for local government office and local election officials are encouraged to check with their legal counsel if they have questions regarding specific filing dates and whether they are required to file for the consolidated primary election or for the consolidated election, which will depend on a variety of factors.

The calendar takes into account two recent statutes (P.A. 103-0586 and P.A. 103-0600) that modified the petition circulation and filing periods of municipal offices for the Spring 2025 elections. Candidates and local election officials should note that many of the circulation and filing dates were moved up about a month from what they may have been used to in past elections.

Looking ahead at some of the important dates for the 2025 Consolidated Primary Election to be held on February 25, 2025: 

July 30, 2024: First day to circulate candidate petitions for primary

October 21, 2024: First day to file nomination papers for primary

October 28, 2024: Last day to file nomination papers for primary

November 4, 2024: Last day to file objections to nomination papers for primary

December 9, 2024: Last day for governing boards to adopt a resolution to allow a binding or advisory question on the ballot at primary

December 19, 2024: Ballot certification deadline for primary

February 25, 2025: Consolidated Primary Election

The below important dates are for the 2025 Consolidated Election to be held on April 1, 2025. These candidate circulation and filing dates apply to those offices that do not require a primary. 

August 20, 2024: First day to circulate petitions for consolidated election

November 12, 2024: First day to file nomination papers for consolidated election

November 18, 2024: Last day to file nomination papers for consolidated election

November 25, 2024: Last day to file objections to nomination papers for consolidated election

January 13, 2025: Last day for governing boards to adopt a resolution to allow a binding or advisory question on the ballot at consolidated election

January 23, 2025: Ballot certification deadline for consolidated election

April 1, 2025: Consolidated Election

Post Authored by Katie Nagy, Ancel Glink

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Seventh Circuit Dismisses Due Process Lawsuit

Seventh Circuit Dismisses Due Process Lawsuit

  Monday, July 22, 2024    Julie Tappendorf

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A plaintiff sued a municipality claiming that the city violated his civil rights when a city inspector shouted racial epithets at him when he was removing a tree from a residential lot in the City. According to the opinion, the city inspector was upset that the plaintiff parked his truck in the alley while he removed the tree. The lawsuit alleged violations of plaintiff's due process rights, the Illinois hate crime statute, and intentional infliction of emotional distress.

The district court dismissed his due process claims, leaving only the state law claims which the federal court declined to rule on. Plaintiff appealed and the Seventh Circuit Court of Appeals upheld the dismissal of his due process claims, finding that the plaintiff's complaint failed to allege the violation of a fundamental right. The Court found no fundamental right to "movement without harassment," and also noted that neither defamation nor a derogatory racial epithet will rise to the level of a deprivation of liberty under the due process clause. Finally, the Court held that verbal harassment, threats, or annoyances do not rise to the level of conduct that "shocks the conscience" to trigger a substantive due process claim. The Court concluded that "while despicable," the city inspector's use of racial epithets did not rise to the level of conduct that would support a due process claim. Robbin v. City of Berwyn.

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School Employee Fired for Social Media Posting

School Employee Fired for Social Media Posting

  Thursday, July 18, 2024    Julie Tappendorf

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In another reminder of "what you say on social media can affect your job," a South Dakota school district recently terminated one of its employees for posting the following on her personal social media page after the shooting incident at the former president's rally:

Shoot if only he would’ve had his scope sighted in correctly.

Employees can be disciplined and even terminated from their positions if their personal social media activities violate their employers' social media policies, so long as those policies are lawful. And, employees should be aware that their social media posts are rarely private, and even if they are not "friends" with their employer, an employee's post can be forwarded to the employer by a co-worker, customer, client, or member of the public. 

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In the Zone: Court Upholds Contiguity Determination in Annexation Challenge

In the Zone: Court Upholds Contiguity Determination in Annexation Challenge

  Tuesday, July 09, 2024    Julie Tappendorf

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An Illinois Appellate Court upheld a ruling in favor of a city finding a 19.5 foot shared boundary between annexed property and the city to meet the contiguity requirements for the annexation to be lawful. Neighbors Opposed to Annexation of Parcels v. City of Joliet

An owner purchased three connected parcels of land, one of which was connected to the city boundaries via a shared boundary with plaintiff’s property. In October 2018, the three parcels owned by the owner were annexed into the city. Plaintiff filed a lawsuit asking the court to invalidate the annexation because he claimed the annexed property was not sufficiently contiguous to the city’s boundary as required by law. Although there was some dispute whether the annexed property abutted the city by 19.5 or 33 feet, the circuit court held that even if the annexed property only bounded the city by 19.5 feet, that was sufficiently contiguous for purposes of satisfying the annexation statute.

On appeal, the plaintiffs argued the circuit court's ruling should be overturned because the court failed to provide reasoning for its ruling that the properties were substantially contiguous to the city, there were issues of disputed facts (i.e., the distance of the contiguity) that should have been decided at trial, and that the properties were not, in fact, contiguous to the city.

First, the appellate court held that it was irrelevant that the trial court failed to provide reasoning for its decision. Second, the appellate court held that although there was some dispute as to the nature of the shared boundary (19.5 versus 33 feet), it was undisputed that the properties shared a boundary with the city of at least 19.5 feet. The appellate court acknowledged there is no set rule for how long a common boundary must be, but agreed with the circuit court that in this case, 19.5 feet was sufficient to satisfy the contiguity requirement of the annexation statute. Although the shared boundary between the city and annexed property was small, the appellate court found that it was parallel and adjacent to the existing municipal boundaries in a way that courts typically found annexed property to be contiguous. Additionally, the annexed property was located in a position that would allow the city to gradually and naturally extend services such as fire and police protection in a manner that favored annexation, and was not the type of strip, corridor, or cornering annexation that courts disfavor. Finally, the appellate court noted that it was not adopting a set standard of 19.5 feet of common boundary to satisfy the contiguity requirement for an annexation, stating that a contiguity determination will depend on the individual circumstances and facts of each case.

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Quorum Forum Podcast: Ep. 85 ADA Reasonable Accommodations

Quorum Forum Podcast: Ep. 85 ADA Reasonable Accommodations

  Monday, July 08, 2024    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast recently released Episode 85: ADA Reasonable Accommodations. In this episode, Ancel Glink attorneys Katie Nagy and Daiana Man discuss when the American Disabilities Act (ADA) requires an employer to make reasonable accommodations for an employee with a disability, how the interactive process between employers and employees works, as well as the impact of remote work on the changing work environment. 

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PAC Finds Public Body in Violation of FOIA for Not Responding to FOIA Request

PAC Finds Public Body in Violation of FOIA for Not Responding to FOIA Request

  Wednesday, July 03, 2024    Julie Tappendorf

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The PAC issued its 9th binding opinion of 2024 in PAC Op. 24-009. Nothing new here - the PAC found a public body in violation of FOIA for failing to respond to a FOIA request and failing to respond to the PAC office's inquiries about the public body's failure to respond to the FOIA request.

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Supreme Court Upholds Ordinance Prohibiting Camping & Sleeping on Public Property

Supreme Court Upholds Ordinance Prohibiting Camping & Sleeping on Public Property

  Monday, July 01, 2024    Julie Tappendorf

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The U.S. Supreme Court issued its long-awaited opinion last week in a case challenging several local ordinances that prohibit sleeping and camping on public property. City of Grants Pass, Oregon v. Johnson, et al.

The City of Grants Pass (City) has three ordinances (Ordinances) which restrict camping in public places. These local laws (1) prohibit sleeping on public sidewalks and streets, (2) prohibit camping on public property, and (3) prohibit camping and overnight parking in City parks. Violators of the Ordinances are subject to penalties which are implemented on a graduated scale: initial violators may be issued a fine, whereas repeat violators may be banned from city parks for a period of time or charged with criminal trespass.

Two homeless individuals brought a case against the City, challenging the Ordinances as unconstitutional under the Eighth Amendment, which prohibits cruel and unusual punishment for criminal offenses. The plaintiffs argued that the Ordinances effectively punished them for their status as homeless individuals, and that this criminal classification was unconstitutional. The federal district court and Ninth Circuit ruled in favor of the plaintiffs, finding that the Ordinances could not be imposed against individuals who are involuntarily homeless within the City. The City appealed the Ninth Circuit’s decision to the U.S. Supreme Court.

The Supreme Court reversed the lower court rulings, with six Justices joining in the majority opinion and three Justices dissenting. Both the majority and dissenting opinions discussed the acute homelessness crisis affecting individuals in the United States, as well as the difficulties local governments face in responding to related public health and safety issues that impact homeless individuals and the general public.

The majority opinion, authored by Justice Gorsuch, found that the Eighth Amendment was drafted to place limits on the method and severity of punishment imposed for criminal behavior, and not the determination of what behavior is considered criminal in the first place. Noting that many local governments (and even the federal government) restrict or prohibit sleeping and camping on public property, the majority held that the Eighth Amendment does not prohibit local governments from classifying unlawful behavior in order to address policy concerns such as those presented by the homelessness crisis. The Court found that local governments have been “paralyzed” from making policy decisions to address homelessness in their communities since the Ninth Circuit issued an opinion in 2019 finding that the Eighth Amendment barred Boise, Idaho from enforcing its public-camping ban against homeless individuals who did not have access to alternative shelter. 

Additionally, the majority rejected the plaintiffs’ argument that the Ordinances punished them because of their status as homeless individuals. In the majority’s view, because the Ordinances could be imposed against anyone who was camping or sleeping on public property (including backpackers or protesters), they did not single out homeless individuals. In sum, the majority determined that the Ordinances do not violate the Eighth Amendment because they criminalize conduct, not status, and the fines and penalties imposed are not cruel and unusual.

The dissenting opinion, authored by Justice Sotomayor, focused on the Ordinances’ prohibition on sleeping in public places, finding that this ban was clearly targeted against homeless individuals because of their status in violation of the Eighth Amendment. The dissent reviewed the text of the Ordinances, noting that the definition of “campsite” implies only homeless individuals may be cited for a violation: 

A campsite is “any place where bedding, sleeping bag, or other material used for bedding purposes” is placed “for the purpose of maintaining a temporary place to live.”

The dissent noted that the difference between lawful and unlawful activity under the Ordinances is a person’s “intent to live in public spaces,” which applies almost exclusively to the homeless. The dissent also found that the Ordinances have been enforced only against homeless individuals, noting that the deputy chief of police previously testified that he was not aware of any person being issued a ticket for public camping who was not homeless. Because the criminal conduct (sleeping outside), is directly tied to a particular status (being homeless), the dissent argued the Ordinances should be struck down under the Eighth Amendment.

Both the majority and dissent acknowledged that their analysis in the Grants Pass case is narrow, and does not address other issues that may come up in the context of regulating homelessness―including the First Amendment, Due Process clause, and state statutes that otherwise protect the rights of homeless individuals. As a result, local governments that are considering adopting ordinances to address the use of public property should consult with their legal counsel to discuss the applicability or impact of other laws or regulations that might provide protections to homeless individuals. For example, the State of Illinois has enacted the Bill of Rights for the Homeless Act that prohibits discrimination “on the basis of housing status” and establishes, among others, the following rights for individuals experiencing homelessness:

• the right to use and move freely in public spaces (including sidewalks and parks);
• the right to equal treatment by state and municipal agencies; and
• the right to a reasonable expectation of privacy in his or her personal property.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink, P.C.

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